2004-10-07
Madam Speaker Braham took the Chair at 10 am.
Madam SPEAKER: I draw honourable members’ attention to the presence in the gallery of O’Loughlin College Year 11 politics students, accompanied by their teacher, Mr Paul Stenchion. On behalf of honourable members, I extend to you a warm welcome.
Members: Hear, hear!
Ms MARTIN (Chief Minister): Madam Speaker, this morning I provide an update on the Bayu-Undan LNG project, currently under way at Wickham Point and offshore in the Timor Sea, valued at $5.5bn.
Offshore, construction of the production platform is completed, and liquid production is already taking place. Gas is being injected back into the deposit, and will be piped to Darwin in 2006 when the LNG plant is completed.
Onshore, in the past fortnight, we have seen a landmark event in the construction of the LNG plant. The steel-dome roof was lifted into place on the massive LNG storage tank constructed by Thiess TKK. After two weeks of preparation, the 92 m diameter domed roof was successfully air-lifted 33 m up to the top of the tank. No cranes were needed for the lift; just five fans, each no larger than a car engine, were used to pump the required air needed to lift the 1083 tonne roof into place. A cushion of air floated the dome into place in just two-and-a-half hours. It was then secured in place by welders. The storage tank roof raising is a milestone, because it means work can now begin on the tank’s steel interior, with the installation of the steel and nickel inner tank.
The steel roof itself was fabricated locally, by structural steel specialists, EC&E of Berrimah, one of the 18 major subcontracts that have been awarded to Territory companies. It is an engineering shop owned and operated by Anton Buic since EC&E’s operations began in 1977. The individual steel sheets that together make up the dome were fabricated by 25 Territory boilermakers and welders at EC&E over a four-and-a-half month period.
Also on-site, progress continues to track according to plan, with the marine jetty trestle that is also under construction. Pile driving continues in Darwin Harbour, with approximately one-half of the total 212 piles being driven in. Installation of the pre-cast concrete deck support beams will be the next step in the jetty’s construction process, transforming the jetty into a roadway trestle reaching out into Middle Arm.
Structural steel construction is well advanced or complete across the site on a variety of structures, except the ground flare area and several smaller pipe racks. All six refrigeration compressors and turbines have been delivered to the site from the manufacturers in Italy.
The control administration building, to be occupied by ConocoPhillips, will be erected and enclosed this month, with architectural finishes and interior work to come. Piping and electrical phases are under way, and there will be an accelerated rate of activity in the coming months.
Construction of the pipeline connecting the LNG plant with the offshore facility is well under way. The contractor, Multiplex Saipem Joint Venture, is currently laying the pipeline on the Timor Sea floor from the Seamac I barge, purpose-built for the offshore pipe laying. The barge is currently 100 km out to sea with 400 km of pipeline yet to lay. In Darwin Harbour, the Dutch-registered Jan Stens rock laying barge is currently dropping four grades of rock on top of the harbour pipeline. The rock, culminating with the largest boulder sized rock, will protect the pipeline from damage in the busy harbour and provide Darwin recreational fishing people with a new 22 km long artificial reef. The vessel will be laying rock in the harbour until late December this year
The Bayu-Undan project has delivered a wealth of benefits to Territorians: sales to Territory businesses; employment across a wide range of skills and services; and training in high levels of various trades. Project operators have issued in excess of 3500 purchasing requests to more than 250 Territory vendors. The total value of sub-contracts awarded to Territory companies is more than $230m over the construction period. Business is continuing daily in areas as diverse as purchasing fresh food to feed workers at the Palmerston camp to the purchase of hose and paper clips. Bechtel’s Palmerston camp, housing workers from interstate, now has 467 occupants out of a capacity of 800. Before the start of construction of the project, it was estimated that 1000 people would be employed in the project; but total employment to date has exceeded that expectation. Employment of non-manual and trades people now stands at 1270. The current number of tradespeople is now over 1000 employed of which approximately, and this is a fantastic figure, 54% are Territorians. That number is set to rise even further over the next six months when at least 200 more tradespeople will be required.
Onshore aspects of this project are 28% complete and the benefits, as I have spelled out, are there for Territory workers and businesses.
Mr DUNHAM (Drysdale): This is great story, Madam Speaker. I am a left brain person, but one cannot help being overwhelmed by the science. As the Chief Minister rightly pointed out, there were five fans to lift a roof that I understand weighed 1100 tonnes and one fan was used. One fan created one bar of pressure that was sufficient to lift that roof into place. The tolerance for a moving part of that magnitude and weight to be welded into a fixed part defies belief. It is a great accolade to the workers on-site, to the design team, to those people with speciality in this area who came from overseas, and there were many of them, for the lift. It stuns you - not just the magnitude, but the basic science involved for such an intricate purpose.
I applaud EC&E and Anton Buic. It is a company that has been around a long time; it has had a lot of work in mining areas including Groote Eylandt and other places. He is a good man and it is good to see him benefiting from this project. I hope the Chief Minister has spoken to Anton and I hope she has spoken to the boss of Shorelands because he has a different story on local participation; it is probably good to hear both of them.
I have had the good fortune to have a briefing from the Minerals Council and I have made a site visit by ferry with one of the people from Bechtel with the PRBA to look at the site from the seaward side. I have been fortunate enough to talk to several people who work on the site. It is a great project and it is good to see that it is happening. I have said in this parliament before that it is a pity that opportunities were lost and that is a matter for the Chief Minister to answer at some later time.
I query the figure of 54% on-site at Wickham Point. I have been told that it is less than that, but I applaud the fact that it is 54% and we would like to see verification from either the company or the Chief Minister on that.
Ms MARTIN (Chief Minister): Madam Speaker, what extraordinary negativity! Opportunities lost! Talk to Bechtel. As I said twice over the last couple of days in this House, Bechtel said that when they are building plants around the world, they only expect to get 30% local employment. We are at 54% and the opposition spokesperson instead of applauding it challenges the figure. He said that Bechtel is lying to us - that is what he is saying, basically, that Bechtel is lying because he disputes the figure on no basis at all.
Talk to the businesses that have some of the $230m contracts. Talk to those who are working there. Stop coming into this House and, on one hand, saying it is a great project and, on the other hand, bagging it. You are bagging the project. That is what the member for Drysdale needs to recognise. Stop speaking out of both sides of your mouth.
We have a lot of Territorians employed on this project. Well done, I say. Well done to our businesses for growing their capacities and being part of this, and our workers for upping their skills and being part of a great project for the Territory.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I am pleased to update the House on arrangements for delivery of secondary education at the Alice Springs campus of Charles Darwin University.
While working through a number of transitional arrangements following the merger of Centralian College and Northern Territory University, now Charles Darwin University, it became apparent that the community, our teachers, the education union, parents and others had a range of concerns about the merger. Those concerns went to arrangements for the school council and governance issues in and around that, staff recruitment and career opportunities for teachers, communication, administrative structures and reporting processes.
I advised the House in the August sittings that I asked the department and the Charles Darwin University to prepare a report for Cabinet to advise options available to work through and resolve this range of community concerns. After careful consideration of that report, the government announced that as from 1 January 2005, Years 11 and 12 on this campus will operate as a separate government school.
We listened to the concerns raised and found them to be legitimate, and we have acted accordingly. The decision means the school will be co-located on the campus and will work in close cooperation with Charles Darwin University. It will not, however, be a merged part of the university. The school and council will operate as any other government secondary school.
Year 11 and 12 students will have seamless access to all the opportunities and educational pathways that co-location will afford, including vocational education, training and higher education. Students will be able to do VET subjects in school and achieve credit towards their NTCE, but they will be awarded certificates of completion from Charles Darwin University for that work. Year 11 and 12 students will have access to facilities, resources and staff across both educational institutions. School leadership and teachers will not change apart from natural staff movement that occurs from year to year.
All senior secondary school employees will be employees of the Department of Employment, Education and Training. The Chief Executive, Mr Peter Plummer, will meet with staff in Alice Springs in Term 4 to provide further clarification and the opportunity to discuss any other issues that staff may have.
A memorandum of understanding between the department and Charles Darwin University in relation to these co-location arrangements, such as the use of facilities and resources, is being developed in consultation with stakeholders of both institutions.
Current and prospective parents and students and the public were made aware of changes through several channels: letters to current parents; distribution of an information sheet to prospective parents; a previously scheduled parent information evening for prospective parents also provided an opportunity for parents to be updated and have questions answered; and a public forum held on 22 September 2004.
Madam Speaker, we have looked at the best long-term interests of students and we have put these arrangements in place with the best educational outcomes for students at the forefront, and the future of secondary education in Alice Springs overall.
We have listened to the concerns of the people of Alice Springs involved in these institutions and we have acted on those concerns with the best interests of the educational needs of the students as the motivator.
Dr LIM (Greatorex): Madam Speaker, I lament the backward step that this government has taken with the Centralian College, the way it has offered Years 11 and 12 in a seamless way with TAFE subjects, and now as part of Charles Darwin University.
I am glad to hear at least there is some settling of the confusion that has occurred in Alice Springs, with the minister having taken his eye off the ball for the last 12 months. The minister spoke about the seamless way that students can complete Years 11 and 12 and TAFE subjects, and that is good. That is through an MOU and not under the single governance of the Charles Darwin University. I believe it has taken a step back some 10 years, setting back the progress of the college in a way that I never imagined could happen.
What the minister has failed to describe for us, though, is the governance structure of Sadadeen Senior College, if we can call it that again - I do not know what the name is for the centre now; let’s call it Sadadeen Senior College, which is what it was back before 1992. What sort of council structures are there going to be? Is the school going to operate under the current school councils’ legislation? I hope it does because that legislation empowers school councils to govern in a way that will engage the community. If that is not the case, then I still believe that Alice Springs will be short-changed by this government. I would like the minister, in his response, to assure me that school councils legislation will be used to establish a school council for the Sadadeen Senior College, and ensure that students and parents will be fully engaged.
I am glad to hear that the teachers are now part of DEET and will retain their conditions of employment. That will satisfy the teachers’ concerns.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I thank the member opposite for his supportive remarks. I accept there was some uncertainty, and perhaps the process could have been a better one right throughout. Nonetheless, we are back on track. In relation to the school council, there will be a full council back in operation for the school. I assume it will be under the normal school council legislation; I cannot see any reason why it would not be. I am pretty confident I can give that assurance. It will have Charles Darwin University input to the council, which will make sense given the co-location arrangements, but for all intents and purposes, there will be a normal operating school council with the usual parental input.
Mr HENDERSON (Asian Relations and Trade): Madam Speaker, today I report on my recent business delegation to Sabah and Sarawak from 9 to 15 September to promote trade and business opportunities between the Northern Territory and Malaysia.
The key component of the delegation was a Territory business delegation at the Sabah International Expo, or SIE 2004, in Kota Kinabalu. Thirty-six thousand people visited the Expo over four days, and I am proud to say the Territory had the largest Australian presence, and one of the largest international displays at this important trade fair.
The delegation was drawn from a diverse background, including transport, manufacturing, education, health, business services, tourism and primary industry. In total, 27 business people representing 13 businesses and the Chamber of Commerce, the Asthma Foundation, the International Business Council and local and Territory government travelled with support from the government’s Trade Support Scheme, and I am pleased to report there are many success stories to be told.
Among them: the International College of Advanced Education signed a memorandum of understanding for their on-line business and hospitality training packages to be used by a Malaysian private college; Mr Tom Dinning and Mrs Christine Dinning, on their first international business visit, very proudly constituents of mine, they live in Leanyer, sold all of their hand made boxes and received orders from a chain of gift stores across Malaysia; Territory Craft generated substantial interest in their Territory made craft products; and Mr David Gyles of Mozzie Catcher identified a number of potential customers for the patented mosquito attracting machine; Jim Lombard, from H2O Solutions has very good prospects in eastern Malaysia for his waste water recycling business.
About 30 Malaysian investors also turned out to hear a presentation from six of our business delegates and me on business and investment opportunities in the Northern Territory, reportedly one of the best turnouts for international exhibitor presentations.
The Chief Minister also attended SIE and, with the Chief Minister of Sabah, witnessed the signing of a memorandum of understanding between the Malaysian Chamber of Commerce and Industry and the Chamber of Commerce and Industry in the Northern Territory.
Every Territory delegate at SIE should be justifiably proud of their efforts. I am pleased to report the Northern Territory was singled out at the Chief Minister of Sabah’s official Expo dinner, with a commemorative award in honour of our participation in three consecutive SIEs, a good sign for future business partnerships.
Whilst in Kota Kinabalu, I was pleased to meet with a number of key ministers to strengthen the Territory’s relationship with Sabah. I was pleased to meet with Datuk Ewon Ebin, the Minister of Industrial Development; YB Tan Sri Chong Kah Kiat, Deputy Chief Minister; and Datuk Masidi Manjun, Minister for Youth Affairs.
I am pleased to report the Sabah government has again stated its commitment to increasing trade, business and cultural links with the Territory, including a commitment to attend Northern Territory Expo 2005 and the Arafura Games next year, the establishment of government staff exchanges to increase understanding and relationships, and encouragement to seek stronger ties with Sabah through education and tourism.
I was also pleased to receive briefings from the Sabah Economic Development Corporation, the Kota Kinabalu Industrial Park, and the Brunei Indonesia Malaysia Philippines-East Asian Growth Area, BIMP-EAGA, trading bloc. A fantastic outcome was that Darwin is to host a meeting of BIMP-EAGA officials and ministers, further strengthening the Territory’s position as the trading gateway between Asia and Australia.
From Kota Kinabalu, I travelled to Bintulu in Sarawak with a smaller business delegation. There, I met with the Bintulu Port and the Bintulu Development Authority. I was briefed on the development of their port, LNG facilities, and industrialisation plans. The level of development and growth in Bintulu is quite extraordinary. In just over 20 years, Bintulu has grown from a sleepy fishing village to be one of eastern Malaysia’s most important shipping hubs. Around 140 000 containers passed over their wharf last year. Bintulu is also home to the world’s largest single-sited LNG plant.
There are many lessons to be learnt from Bintulu as Darwin starts its journey of growth through the Australasia trade route and developing gas industry, and there are significant opportunities for business partnerships with Bintulu. In fact, the Darwin-based Australasia Group of Companies is working on the establishment of regular shipping links with the port of Bintulu and we are hopeful that that will come off by the end of the year.
I hosted a business dinner in honour of the visit of the Northern Territory business delegation, and this was attended by about 30 business representatives from the major industrial companies in Bintulu. I outlined in a presentation the development and investment opportunities in the Territory. I am pleased to report there were many interested parties in the Australasia trade route, and a delegation from Bintulu is soon to come to the Northern Territory.
Mr MILLS (Opposition Leader): Madam Speaker and members, if we had reports like this over the past three years I would be a much happier Opposition Leader. These are the reports we need on a consistent basis. It is an excellent report and there have been a number of very significant advancements in our Asian Relations and Trade strategy. We have followed, of course, the spirit of Ernie Dingo, a friend of mine, saying: ‘Go on; get out there’.
It was interesting to note that there were three of you, I understand, in Sabah at the same time. It is a big region and it is pretty curious that the three of you managed to jostle around together in Sabah. Nonetheless, it is a very welcome report. I have had a number of reports from members of that delegation who said that this was a very well-focussed delegation and that some very good, productive links have been made.
If we had reports like this on a consistent basis over the past three years, we would not be faced with the very concerning news of increases in the cost of freight on the Darwin to Adelaide rail. There has been an increase of 85% in the cost of freight on that rail. That is largely due to the bridge that was meant to be created by an effective Asian Relations and Trade strategy into the region to channel freight from the region down on that rail so that we would have a far more viable rail at this point. The announcement by operators to increase the cost of freight is a clear indication that the bridge has fallen down and you have now begun to reconstruct that bridge with effective communication within the region.
We needed to see strong trade from the region. We needed to see a continuation of genuine, clear, well-intentioned and well-focussed engagement that is only just beginning. It is too late because we have had an 85% increase in the cost of freight on the rail.
Madam SPEAKER: Opposition Leader, your time has expired.
Mr HENDERSON (Asian Relations and Trade): Madam Speaker, I do not know where the Leader of the Opposition has been. I have made a number of these reports over the last few years. It is not just me saying that things are improving. I will quote some latest figures from the Australian Bureau of Statistics and Austrade, which has praised the progress of the Northern Territory in driving up exports to East Asia.
The Territory is now the second highest exporter per capita behind Western Australia. We have been singled out for specific praise by Austrade for small to medium enterprises. This is not the big mining companies; this is the SMEs in the Northern Territory. About 78% of our exports went to East Asia in 2002-03, a significant rise.
We are backing exporters in the Northern Territory. We have increased funding to the Trade Support Scheme to nearly $0.5m this year. Every day, I am signing letters in my office to assist business people to get overseas and export. I urge the opposition to get behind these people, because it is the business people who do the business and they are doing a fantastic job.
Mr VATSKALIS (Primary Industry and Fisheries): Madam Speaker, I rise today to report on my recent visit to Sabah and the Philippines.
As part of this government’s strategy for increasing the livestock trade to South-East Asia, my department has been providing technical assistance with cattle programs in Sabah and the Philippines. As a result, our exports of cattle to Sabah resumed this July with a shipment of 300 breeders, and last October 1000 feeder cattle were shipped to the Philippines for a cattle development project in Negros Occidental.
In Sabah, the Minister for Agriculture and Food Industry, Datuk Rahim, told me that his government was aiming for 30% self-sufficiency in beef production by 2010. To achieve this, they are integrating cattle production under oil palm and importing Australian breeder cattle for distribution to farmers and providing the farmers with proper training in beef cattle husbandry.
Minister Rahim reiterated his appreciation of our support for this program and the work done by officers of my department in providing technical advice and training to the Department of Veterinary Services and Animal Industries.
The Sabah government has commissioned new slaughterhouses which have been designed and built by Territorian, Mr Jim Scott. I visited the Kiansam pig abattoir where one of my officers, Mr Steve Sell, has been assisting Mr Scott and the Sabah Veterinary Services Department with accreditation of the facility and with training of slaughtermen and abattoir management.
I visited a multi-species abattoir and meat technology centre near Kota Kinabalu, which is still under construction. My department will help to establish this facility as a leading training centre in meat processing for the BIMP-EAGA region.
I inspected the Sabah Animal Disease Research Centre in the company of Mr Haji Awang Sahak Salleh, Director of the Department of Veterinary Services and Animal Industries, and I met with staff who will come to the Berrimah Veterinary Laboratory for training. It is important that we assist with their disease prevention as a first line of defence for Territory livestock industries.
My hosts took me to one of their cattle breeding stations to see the Braham breeder cattle that were recently imported from the Territory. Departmental officers have worked closely with government farm managers in Sabah to improve their operations and three of them recently came to the Territory for work experience. Our industry representatives and livestock exporters were able to meet with local Sabah importers and cattle producers for business discussions on prospective cattle importations, which are expected to reach 5000 breeders per year for the next five years.
Turning now to my visit to the Philippines, the Australian Ambassador to the Philippines, Ms Ruth Pearce, provided us with a briefing on the economic issues and challenges facing President Arroyo in her second term of office. Unfortunately, the Secretary of Agriculture was unavailable at the time of my visit, so I met with Assistant Secretary, Sefredo Serrano, and Mr Peter Ocampo, Director of Livestock Program. They acknowledged the collaborative work undertaken between my department and the Philippines Department of Agriculture, in particular regarding the Negros cattle project which addresses the poverty alleviation policy of the Philippines government.
In Negros Occidental, I met Governor Joseph Maraon, together with the principal investors of the cattle project, local farmers and business people. I pledged to provide further technical support when the project is ready to receive its next shipment of cattle.
While I was in Manila, I paid a courtesy call on the former Agricultural Secretary, Luis Lorenzo, and met with other influential officials to promote trade with the Territory.
Finally, I would like to acknowledge the work of Mr David Ffoulkes from my department. He accompanied me on the visit and it is clear that in both Sabah and the Philippines he is highly regarded, respected and valued for the work he has done in assisting with the development of their cattle industry. I would also like to express my appreciation to Mr Stuart Kenny of the NT Cattlemen’s Association and Mr Patrick Underwood of the NT Livestock Exporters Association who were part of my delegation, and Mr David George who joined us in the Philippines.
As a result of that visit, Minister Rahim will visit Darwin in the middle of November. Our government is prepared to sign a Memorandum of Cooperation with the Sabah department and we will have a number of delegations coming from the Philippines.
In the Philippines, I met with ex-Senator John Osmena with whom I met yesterday. The ex-Senator intends to import 2000 cattle from the Territory to the Philippines and he formally asked for our assistance in providing technical know-how and transfer of technology in order to establish a small abattoir for export facilities.
Mr BALDWIN (Daly): Madam Speaker, I sincerely congratulate the minister for that report. It is excellent news. It is good to see that you are re-establishing long-held relationships with those important countries to our north, Sabah and the Philippines, to name just two. It is great to see that our standing with those jurisdictions remains as good as it was in past years because there has been a slip in the last two years in keeping those relationships going and it is thanks to the likes of the Exporters Association and the Cattlemen’s Association that have continued those important contacts.
I, too, congratulate the likes of Mr Ffoulkes, Stuart Kenny and Patrick Underwood for the great job they have done over quite some years, and I put on the record my disappointment that Patrick Underwood is leaving his job shortly. I note that it has been advertised. I wish him well for the future and thank him for the great job that he has done on behalf of exporters.
Livestock exports are a very important part of our economy, as is the assistance that we have given to many countries to our north in helping them with abattoir technology, helping them go from wet markets to packaging meat for themselves, and feed lotting. We have a lot to learn from them as well, but those links are very important and I am glad the minister has had an excellent trip. I have received feedback and it was a very good trip. I thank him for taking the people he did with him and congratulate him for that. I hope you also had some time to enjoy the local culture over there and to keep abreast of local issues.
Mr VATSKALIS (Primary Industry and Fisheries): Madam Speaker, I thank the member for his constructive comments. I did have a great time in Sabah. I was taken around by farmers and importers and saw some of the developments and was very impressed.
The Philippines was an eye-opener, especially Negros Occidental.
Members interjecting.
Mr VATSKALIS: Members on the other side find it very funny, but I think developing relations with other people is very important. Some of the issues in the Philippines - the economic downturn, the financial problems and the efforts of President Arroyo to redistribute wealth - are very important and we can play a really significant role.
I also pay tribute to Patrick Underwood. It is really sad that he is leaving; however he wants to go back to his family farm and he will probably do an equally good job there as he has done with the exporters. I am looking forward to more travel and further reinforcing and extending relations with our northern neighbours. They are a front line for disease prevention and are very important markets.
Reports noted pursuant to Sessional Order.
Bill presented and read a first time.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I move that the bill be now read a second time.
This bill is a further component in the government’s legislative response to the insurance crisis. Our previous legislative measures have been designed to reduce pressure on the cost and availability of public liability insurance. This bill, however, is focussed on professional indemnity insurance. This cover insures professionals such as accountants, lawyers and engineers against claims by clients and others relying on their advice or services. Members will be aware of the difficulties faced in recent years by occupational groups in accessing indemnity insurance.
Indeed, the ACCC’s third monitoring report, released in August 2004, showed that professional indemnity premiums have risen on average by over 160% since 1999. Furthermore, many professionals are finding that when they renew their cover, it is subject to an increasing number of exclusions. For example, a survey in May 2004 by the Association of Consulting Engineers found that more than 50% of consulting engineering firms renewing their policies had areas of business limited by policy exclusions.
The government is concerned this situation could result in a reduction of services available to consumers as professionals withdraw from providing these services. Alternatively, consumers will increasingly bear the losses arising from poor service because professionals are inadequately insured.
The government has participated in national discussions, which resulted in all jurisdictions committing to introduce nationally consistent professional standards legislation. This bill ensures that the Territory fulfils that commitment. The effect of the bill will also be enhanced by the Commonwealth’s amendments. That amendment prevents plaintiffs from using its legislation as a basis for action in order to circumvent limits established under state and territory professional standards legislation.
The bill is consistent, although not identical, with the national model based on New South Wales legislation. This reflects the fact that the Territory has benefited from the experience of other jurisdictions, particularly Victoria, and consultation with stakeholders.
The purpose of the Professional Standards Bill is to limit the liability of members of occupational associations who participate in an approved professional standards scheme. Such schemes are designed to improve occupational standards, while providing greater protection and certainty to consumers about the quality of professional services and level of recovery should adverse events occur.
I will briefly outline the main aspects of the bill. Establishing schemes: the bill does not impose a scheme on any particular profession or occupational group. It is up to occupational associations to seek to establish one, and individuals and firms must join an association to access a scheme. Occupational associations must prepare their scheme then apply to the Professional Standards Council to have the scheme approved.
An approved scheme can apply to all members of the occupational association, or to particular kinds of members of the association. A scheme typically requires members to implement codes of conduct and risk management strategies, develop complaints and disciplinary procedures, and to undertake ongoing professional development. These measures improve occupational standards and reduce the likelihood of claims. In return, the scheme caps the professional liability of members to an approved amount of not less than $500 000.
The capping of liability: under the bill, liability is capped by reference to insurance arrangements, business assets, a multiple of the professional service fee or a combination of these. In order to receive the benefit of the liability cap, it is first of all necessary to be a member of an occupational association that has developed and had approved a professional standards scheme.
Second, members participating in the scheme must maintain insurance cover or business assets, or a combination of these, sufficient to meet claims up to their specified cap. To facilitate this, the bill provides that schemes may require members to have insurance policies of a particular kind that will cover their level of liability. Members must also comply with other requirements of the scheme, in particular the risk management strategies.
The cap on liability will only limit exposure to damages for property or pure economic loss. It will not apply to any claim involving a breach of trust or fraud or dishonesty. Further, the bill does not allow limitation of liability where there is a personal injury, even if the injury caused economic loss, or where a lawyer is negligent when acting in a personal injury claim. When a person is covered by a scheme, that scheme will apply to all the work done by the person and falling within the scope of the scheme, with the exception of work relating to contracts made before the commencement of the act. For the provisions of the act to apply, such contracts would need to be renegotiated.
The bill does, however, provide for flexibility in capping arrangements. Schemes may allow members to accept higher limits of liability, or to be exempted from the scheme if approved by the occupational association. Schemes may also set differing levels of caps, for example based on firm size or type of work. This flexibility will ensure members are able to retain a competitive edge in circumstances where levels of insurance are important, while encouraging continued improvement in the standards of that service.
The bill establishes an independent body, the Professional Standards Council, to approve and monitor schemes. It is intended that the Territory and other jurisdictions will appoint a common body of members to each council, thereby forming a single national Professional Standards Council. This will ensure consistent administration of the legislation across jurisdictions and is a cost-effective option for small jurisdictions such as the Territory. In approving a scheme, the council will need to balance the need to limit the liability of members against the need to protect consumers and achieve improvements in occupational standards.
The bill sets out in clause 10 matters to be considered by the council when deciding whether or not to approve a scheme. These matters include the claims history of the members of the occupational association. They also include the cost and availability of insurance to those people; the effect of the scheme on consumers and other parties who may be affected by the scheme; and insurance and risk management standards set by the association. In addition, the decision-making process will be assisted through public consultation. The council must seek, and have due regard to, public comment on a scheme prior to approval.
If the council approves a scheme, it must then be considered by the minister who may authorise the scheme by publication of a notice in the Gazette. A scheme takes effect on the date set in the Gazette notice or, if no date is set, two months from the date that the notice is published.
The scheme can be disallowed by the Legislative Assembly in the same way as a proposed rule. Individuals can, before a scheme starts, lodge a legal challenge on the basis that the scheme fails to comply with the act. The council, at its discretion or at the request of the minister or the occupational association, can amend or cancel an existing scheme.
The council also has authority to audit the compliance of scheme members with the risk management strategy. More generally, the council will have overall responsibility for monitoring and reporting on the operation of the legislation and promoting the development of professional standards.
Penalties: a person covered by an approved scheme is required to disclose that their liability is limited in all their advertising materials and business correspondence, except business cards. Failure to do so will incur a fine of 50 penalty points. Furthermore, if a member fails to advise a client, either through these documents or in some other form, that their liability is limited before an adverse event occurs, their liability will not be limited for damages arising from that event. The bill also obliges the member to provide a copy of their scheme to their client if requested. These requirements are intended to ensure that clients can make an informed choice about whether they wish to deal with a person whose liability is capped by a scheme.
Application: liability will only be limited on acts or omissions that occur after the commencement of the scheme and during the period in which the scheme is in force. It is the timing of the relevant event that determines whether liability will be limited. Schemes may operate for up to five years, and may be extended for a further 12 months by the minister. This time limitation means that the standards, capping and other arrangements imposed by schemes will be regularly updated.
Consultation: the government has consulted on the proposed bill and it is supported by stakeholders, including Professions Australia, the Law Society Northern Territory, CPA Australia and Engineers Australia Northern Division. The bill is also seen by occupational groups as complementary to proportionate liability legislation which the Minister for Justice and Attorney-General is expected to introduce in the Assembly in the near future. Combined, these two legislative initiatives will have a greater impact on professional indemnity premiums.
As a result of the bill, it is hoped that occupational groups in the Territory will be encouraged to establish schemes that will improve the quality and safety of their service to clients, while reducing their members’ exposure to liability risks in the course of their professional work. The bill is intended to balance the need to keep professional services available to consumers while protecting consumers against harm. In the absence of professional standards legislation, a client suing a professional may not have recourse to adequate insurance or assets to meet their claim. The proposed bill increases protection to consumers by ensuring that if an adverse event occurs, recourse is available to a guaranteed level of recovery and meaningful complaints and disciplinary system. Consumers are further protected by increased and more consistent standards of service.
Scheme members also benefit from the limitation on liability and through the risk management strategies, which should make them more alert to risk and better able to avoid it. Members can also market the strategies they have put in place as a scheme participant. Participation in a scheme should mean that insurers will be able to more readily assess members’ exposure to risk. This should place downward pressure on premiums for professional indemnity insurance, a result that should benefit both professionals and their clients.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
Continued from 18 August 2004.
Ms CARNEY (Araluen): Madam Speaker, this bill is opposed and there are a variety of technical and other reasons for this, and I will detail them shortly.
Put simply, the bill is opposed because in a number of respects, it is flawed. I said at the time of the pre-publicity that the CLP was supportive of reforms in this area, and we are, but that the devil was in the detail and that it was important that we get it right. The government does not have this bill right, which is why it is opposed.
It was enormously disappointing to read the pre-publicity and then see what the bill actually says. I have been interested in this area for some years and have long held the view that reforms need to be made. Naturally, when I heard what the minister said prior to the introduction of this bill, I was happy with what was purported to have been achieved. However, when I went through the bill in detail, I was enormously disappointed to such an extent that it is necessary to oppose this bill today. That is very unfortunate but it is necessary in light of the bill’s many obvious and, in some instances, not so obvious failures and flaws.
The problem about opposing this bill is that there is a risk the government may spin our opposition to suggest to Territorians that we do not support improving the justice system for victims and witnesses. That is untrue and no one has been more committed to this area for years than me. However, if I have to wear government spin, then so be it. My life is too short to simply nod to bills that amount to a dog’s breakfast and that do not do what the government says they purport to do.
The Attorney-General has form when it comes to bringing bills into this House apparently thinking that they are good ones and then amending them down the track. We do not want this bill to be another instance. He also has form when it comes to selling and packaging his bills and so-called initiatives. There is the version for the public and there is the other version that we get to see. He is developing a reputation of being loose with the truth and putting political opportunism above good law.
The Attorney-General should take this bill back to the Department of Justice and to Parliamentary Counsel and fix it. The bill has numerous problems, but I will only deal with a few. It will, however, become clear to all who listen to what I have to say, and those who will subsequently read Hansard including relevant stakeholders, many of whom I have spoken to already, that the government needs to start again.
I now turn to several parts of the bill, some of which are more troublesome than others – and I am going through the clauses sequentially. In relation to clause 4, it seeks to repeal the existing section 16 of the Evidence Act, which is the disallowance of certain types of questions. Arguably, the government has broadened the definition, but there is little in it. I note that in the Attorney-General’s second reading speech, he calls this tinkering a:
It is already there. It is a rehash of what already exists and is typical of the Labor approach to things, to meddle unnecessarily in the name of being seen to be doing something new.
In relation to clause 5, it seeks to amend section 21A of the Evidence Act. An amendment is proposed to section 21A and subparagraph (a) of the proposed new section provides that a court must be closed when a vulnerable witness is giving evidence in sexual assault cases.
Members will recall that this picks up an amendment I proposed in May that required the court to be closed in such cases. Naturally, that part of the bill is supportable. However, something which should also have been amended in section 21A of the Evidence Act is subsection (2A) and that is the section that says notwithstanding the protective arrangements, vulnerable witnesses could use that are outlined in paragraph 2 of that section, such as sitting behind a screen, using CCTV or having a support person sit with them, the court may make an order that a vulnerable witness is not to give evidence using such an arrangement if it is satisfied that it is not in the interests of justice.
Members will recall that the government opposed an amendment I introduced in May and we debated earlier this week to remedy this situation. Section 21A(2)(A)(a) means that special or protective measures are available, but they do not exist as of right because the court can say that it is not in the interests of justice. This is wholly inconsistent with a proposed new section 21D that states in (1) that children should be given the benefit of special measures and in (2) says that the court must take measures to limit to the greatest extent practable the distress and trauma suffered when giving evidence and a child must not be intimidated when giving evidence.
I will outline my objections to the proposed section 21D later, but it must surely be clear to everyone that retaining the existing 2(A)(a) in section 21A of the Evidence Act is at odds with the proposed section 21D in the bill and will create a nightmare for lawyers and judges who will have to navigate their way through the inconsistencies.
Simply put, the existing 21A(2)(A)(a) and the new 21D(2) are not compatible. They are at odds with each other and it is not a desirable outcome for victims, lawyers or judges, nor the administration of justice in the Northern Territory.
Having outlined the legal difficulties, the politics of this approach is equally absurd. Government represents to Territorians that it cares about victims by saying that the courts must treat children in a particular way, but retains the ability for the court to refuse to provide the special arrangements of screens, CCTV and so on for them when giving their evidence.
It does not make sense either legally or politically. We suggest if the government accepts, as it surely must, that this bill needs to go back to the drawing board, that government omit (a) of 2A of section 21A of the Evidence Act. If it does not want to repeal that subsection - and it should, but if the Attorney-General can not bring himself to get rid of it - then he should amend it by borrowing from the Victorian Evidence (Audio Visual and Audio Linking) Act and amend subsection (a) to read:
I now turn to clause 6 of the bill that deals with pre-recorded evidence of vulnerable witnesses. A new section 21B(1) is proposed and the section applies to (a) a sexual offence, and (b) an offence against sections 177, 181, 184, 186, 186B, 186C, 188 or 193 of the Criminal Code. It becomes necessary, therefore, to look at what those sections of the Code are: section 107 deals with acts intended to cause grievous harm; section 181 deals with grievous harm; 184 deals with endangering a life of a child by exposure; 186 deals with bodily harm; and 188 is common assault. Those sections deal with a number of crimes that are not sexual offences. No explanation has been provided either in the pre-publicity or the second reading speech, so we do not know why they have been included. Given that they have been, however, the title of the bill should arguably be changed to Evidence Reform (Children and Sexual and Other Offences) Bill.
Apart from those sections relating to crimes that are not sexual offences, thereby going beyond the name of the bill, the inclusion of the sections to which I have just referred from the Criminal Code is curious for other reasons.
It is especially curious that the crimes of murder and manslaughter are not included. In such cases, there can be vulnerable witnesses. If it is reasonable to include sections dealing with acts of gross indecency, grievous harm, bodily harm, common assault and so on, then, as a matter of consistency, more serious crimes should be included. Why have these crimes been excluded, that is murder and manslaughter, but others, less serious, been included in the bill?
The Attorney-General seems to have the peculiar view that there may be vulnerable child witnesses involved in some crimes, but not those of murder and manslaughter. In the absence of any explanation provided in the second reading speech, one can only assume that the bill has not been thoroughly prepared. Having regard to other parts of the bill, this is the conclusion to which we have come.
I now turn to section 21B(2), which deals with the video taping of evidence. While this is new for the Northern Territory, it is not new for some other jurisdictions. However, since it is new for the Territory, it is important that we get it right. Before dealing with the specifics of the section in detail, there are a number of broader concerns I have about the video tape that is used and, in particular, what happens to the video tape after it has been used in court.
It is important to note that a video is different from a written statement that is given to a defendant which is provided in the normal course of events of disclosure or discovery. There are issues that are unresolved and have not been thought through. The concerns are that there will be a video floating around with a child giving evidence about a sexual assault. Things that could go wrong include, but are not limited to, the video can be given to the offender. It may then be edited, it may then end up on the Internet. An unrepresented offender will be entitled to receive the video directly. It may find its way onto a training video, for instance, for prosecutors. Another thing that could go wrong is that evidence has been given when a victim is a child. What happens if, when that person becomes an adult, the video surfaces?
Finally, I am advised that a private company has the Northern Territory government contract for archiving files, which includes court files. Since court files are not held directly by government, it cannot therefore guarantee the safety of them. The video is a living document and no thought has apparently been directed to the safety of the videos and the privacy of victims. Guidelines do need to be included to ensure that these videos do not fall into the wrong hands. It may be that defence lawyers will be required to give an undertaking to destroy them or hand them back to the Crown. Defence lawyers can give it to their clients, and the fact is it may be used for improper purposes.
At least in Western Australia, they bothered to address this issue for providing penalties for the improper use of a video, but this government did not even address it. I raised the issue in the briefing and it seemed to come as something of a surprise that any concerns might exist in relation to what happens to the videos. Why did not the Attorney-General ask questions about this, or was it the case that he was simply not concerned? Madam Speaker, the Attorney-General may not be concerned, but I am.
Having dealt with the bill being silent about what happens to the video, or put another way, the absence of adequate safeguards in respect of them, I now turn to part of section 21B in detail. Section 21B(2) deals with evidence by video. Nowhere in the propaganda that was disseminated before the bill was introduced was reference made to the fact that video evidence will be used ‘at the election of the prosecution’. In other words, there is no automatic right for vulnerable witnesses to avail themselves of giving evidence by video, except children and only at committal. It means that at trial, when a prosecutor decides to use video, that is when it is used. This is problematic. Putting to one side the sheer dishonesty of representing to Territorians that this initiative was created as of right for victims, the fact is that giving the power to decide whether to use a video to the prosecution is misguided. The reality is that prosecutors believe it is better for juries to see the crying and distress because it improves their chances of conviction. If the Attorney-General does not believe me, then he should ask them.
Second, there is a general reluctance for prosecutors to use the existing facility of a CCTV in Alice Springs and Darwin. For some years such facilities have existed, but they are rarely used and prosecutors do not like to do it because there is a view that it diminishes the prospects of a conviction. The Attorney-General should know about this. If he does not, he should. If he does, he should have provided figures, and I will ask him to do so in committee, of how many times in the last three years vulnerable witnesses have given evidence by CCTV. In fact, I invite him to do so. A senior Darwin prosecutor has informed me that CCTV is used in about 15% to 20% of cases.
Madam Speaker, the foregoing demonstrates why it is unwise in the extreme to give the discretion to pre-record evidence to prosecutors. Either the government wants vulnerable witnesses to give evidence by pre-trial video or it does not. If it is serious about this, then it should legislate for it so that victims have it as of right. The Attorney-General, for some reason, does not appear to have bothered to do this and presented a bill that does not actually do what it says. The prosecution can elect to have the evidence-in-chief recorded in (2)(A) or the whole of the evidence. It goes on to say in new section 21B(3):
except in committals. This leaves the door open for children to be cross-examined in court and not by video and, potentially, without even the protective arrangements provided for in section 21A(2) of the Evidence Act by virtue of retaining that section, as I outlined earlier. I understood that this was what the bill sought to avoid.
The bill does not do what the Attorney-General says it does. The spin used by the Attorney-General has been disgraceful. I would have thought that even this government might have resisted the temptation to politicise children but, unfortunately, it chose to do so. That the Territory’s first law officer has presided over this bill and its pre-publicity is shameful.
There are other difficulties with the bill regarding video taping of evidence. It is important to provide for the rights of children in this bill, and that has not been done. The bill gives to the prosecution a right to elect whether to use pre-recorded evidence. There is no reference to the wishes of the child or other vulnerable witnesses. What happens if the prosecution elects to proceed with pre-recorded evidence that is contrary to the child’s wishes? The bill does not guarantee a child’s right to give evidence in person at trial, and it should have done so. There is evidence to suggest that older children, in particular, want to give evidence in person.
Furthermore, I am advised that the courts do not have the facilities to video tape in any event. I understand that in Alice Springs, for instance, there is no ability to record evidence. In fact, I am advised that there is not even a video camera on the premises. The Attorney-General has been silent when it comes to advising Territorians where the money is going to come from for the additional resources and infrastructure that is required to give effect to what is contained in the bill.
Where is the video equipment? Who will operate it? Who will be trained? What sort of recording will occur? For instance, will it be a close-up shot of a distressed child or taped from a distance? If so, how far? Will the witness be required to sit in the witness box or, as is the case of some countries, a place where a child is most comfortable such as sitting on the floor, particularly for younger children? Will it be recorded in court? If so, what has been done to avoid situations where there is a risk of a witness meeting the accused in or around the court? Might a sensible reform be to provide for the video taping to occur in informal surroundings, and has the Attorney-General considered this? If so, why has it not been included? Has the Attorney-General also considered reforms in other countries including the United Kingdom that provide for the removal of wigs and gowns when examination and cross-examination of children takes place?
In Scotland, a duty is imposed on the court to make ‘suitable arrangements’ for the evidence to be given from outside a court room. This can be done from either another part of the court building or any other suitable place that can be identified away from it. It could be argued that section 21B(4)(d) fills the gaps, but I do not think it does. Nevertheless, it is the responsibility of government to make it clear and take the lead on this issue rather than to leave it to the courts. Yet, it has failed to deal with this issue head-on, or at all.
Moreover, section 21B(2)(a) refers to examination-in-chief that may be pre-recorded and given by video tape or other audiovisual means. What are they? If it is CCTV, then that capacity already exists, although it is not recorded. Apart from video, what is meant by ‘other audiovisual means’? The Western Australian parliament bothered to provide a fulsome definition, but the Northern Territory Branch of the Australian Labor Party did not. Why not?
Another difficulty that arises from section 21B(2) is that it does not specifically say that video recording should occur prior to trial. In the absence of expressly saying that it should, it is possible that it will actually occur during the trial, which would need to be temporarily adjourned whilst court staff and others prepare video taping equipment. This means that one of the publicised aims of the bill – namely, getting the evidence of children early in the proceeding - may not eventuate.
The Attorney-General referred in his second reading speech to a ‘special pre-trial hearing’, but the bill refers to a ‘special hearing’, which is not defined. They are just some of the difficulties that arise from the proposed new section 21B, and they clearly demonstrate that nowhere near enough work has been put into the presentation of this bill. The fact that so little was included in the second reading speech illustrates that questions arise from the bill and remain unanswered.
However, there are even more difficulties that arise from the proposed new section. Given the absence of a definition of ‘special hearing’ referred in section 21B(4), which I will deal with separately shortly, presumably a judge will hear evidence at a special hearing, which may occur before the trial and then the same judge will need to hear the rest of the proceeding. I assume that it is anticipated that the judge who hears the special hearing, whatever that may be, will be the same judge who hears the rest of the trial, however, this is unclear from the bill. Assuming that the same judge will hear all of the evidence, the fact is that unless there is a guarantee that pre-recorded evidence is given during the trial, there will be listing problems. It is unfortunate, and I would say somewhat unusual, that ‘special hearing’ is not defined.
The second reading speech suggests that pre-recorded evidence will occur before trial. That is likely to be a particular problem in Alice Springs where judges sit on a circuit basis and the listings are full in any event. This may cause delays and it is ironic that one of the aims of the bill is to minimise delays. Simply put, in its present form pre-recording may in fact present obstacles for the fast-tracking of trials. Apparently, there has been no analysis of this potential outcome.
There are more parts of proposed section 21B that warrant criticism. In section 21B(3) there appears to be a typographical error. It refers to ‘subsection (1)(a)’, and it seems to me at least that it should refer to subsection (2)(a). If that is not the case, I will ask the Attorney-General to explain why it is not a typographical error. The proposed new section 21B(4) is a bit of a mess as well. Subsection (a) refers to a special hearing yet, as I have mentioned, it is not defined. I note that in Western Australia the government at least bothered to give it a definition, but this government has not made any effort despite the fact that they did not have to look very far for assistance.
Subsection (4) refers to a defendant being present at a special hearing but not in the same room as a witness. This is appropriate but no thought has apparently been given to what is done with unrepresented defendants. Are they permitted to be in a room during a special hearing? In section 5 of the Sexual Offences (Evidence and Procedure) Act it provides that an unrepresented defendant shall not be entitled to cross-examine the complainant directly. How does the video taping of evidence fit in with this, and what happens in the case of an unrepresented defendant being at the special hearing? Interestingly, in Scotland the Vulnerable Witness Bill passed in October 2003 provided for a discretionary power for the court to prohibit the accused from personally conducting his or her own defence in cases involving vulnerable witnesses. Did the Attorney-General give any thought to what other countries or jurisdictions have done to protect vulnerable witnesses? Would the Attorney-General support a move by the CLP to introduce discretionary power to prohibit an accused from personally conducting his or her own defence involving vulnerable witnesses?
For all of those reasons, Madam Speaker, the proposed section 21B is a mess. Government has had a great opportunity with all of its resources to significantly improve things for vulnerable witnesses, yet it has failed to do so. It has nevertheless used political spin to make it appear as though it has achieved things, when in fact it has not. If the Attorney-General fails in his reply to address the issues I have raised in relation to pre-recorded evidence, then that stands as an admission that the bill is flawed. If this part of the bill does what the pre-publicity said it does, then he will be able to address all of the matters I have raised.
I now turn to other parts of the bill, in particular clause 7 and the proposed new section 21D. There are two points I wish to make in relation to the section. Subsection (1) says:
It is not defined in the Evidence Act, nor is it defined in the bill. It is the case that in some jurisdictions ‘special measures’ are defined and they include measures such as CCTV, a screen and so on, but ‘special measures’ are not defined in this bill. Is it the case that the reference to ‘special measures’ mean what are called ‘the arrangements’ outlined in section 21(A)(2) of the Evidence Act? It is unclear. If it is intended to mean those particular arrangements in section 21A(2) of the Evidence Act, then it should say so. Alternatively, perhaps ‘special measures’ refers to something else. If so, what? Perhaps ‘special measures’ mean those things included in of section 21D(2) of the bill. Who knows? It is unclear and it must be clarified.
The second point I make questions what the new section 21D(1) actually means. It amounts to a declaration. It states that the Legislative Assembly acknowledges that:
Such a declaration should arguably have appeared in the second reading speech and not the bill. There is, in my view, a certain pointlessness about including principles like this in a bill. To include the objects and purpose of a bill is one thing, but to include declarations of principles is quite another, and I am unable to find support in the relevant texts that legislation should include declarations of principles similar to the one contained in this section. It indicates that the government is more concerned about the packaging of legislation rather than its substance.
Section 21D(2) is also a mess. It says that:
There are a number of problems with this. The fact that the word ‘suffered’ has been included, for instance, clearly suggests after the child has given evidence, when he or she is in the foyer of the court in tears or having nightmares for weeks afterwards, the inclusion of the past tense is absurd or perhaps an admission that it will fail. It is illogical. What is the court supposed to do about that? At best, it is a direction for a court to conduct a proceeding in a particular way, yet at the same time the court need only have regard to the principle.
The expression ‘likely to be suffered’ is curious as well. How is a judge or magistrate able to predict what trauma each and every child is likely to suffer? This is not an area that judges deal with, as they need only deal with the evidence and the law. Moreover, no expert, and I have spoken to some, can predict which given child is going to be traumatised by giving evidence. So this subsection is making an ass of the law and illustrates the ill considered - some would say dog’s breakfast - approach to the bill.
Subsection (b) states that:
Again, there is an inherent inconsistency. On the one hand, the court is to ‘have regard to the principle’ pursuant to section 21D(2), yet on the other hand, the court is being told that a child ‘must’ be treated with dignity, respect and compassion. Is it a principle or is it a direction? What happens if the court, for some reason, fails to do so? Is there a sanction? Is it an appeal point? An obvious question is: be treated with dignity, respect and compassion by whom? How is it measured, and by what standards?
It is inconsistent to provide these directions in a subsection that is preceded with the expression ‘the court must have regard to the following principles’. In addition, it is naive in the extreme to direct defence lawyers to treat witnesses with compassion. Our justice system is adversarial, and what are the sanctions, let alone the consequences, as far as running the case for an accused is concerned, in producing such a direction? Have the criminal lawyers of the Territory been consulted about this? If so, what have they said?
Furthermore, if the government believes that some witnesses should be treated with dignity, respect and compassion, why doesn’t government include such an expression in other legislation? Is it seriously suggested that other witnesses ought not be treated in this way? What about victims of domestic violence or sexual assault? Are they to be treated differently? Madam Speaker, the questions I have asked illustrate what a pedestrian fumbling, bumbling mess this bill is.
There is more. Subsection (c) states that the child must not be intimidated. To a large extent, this already exists by virtue of sections 16 and 21B of the Evidence Act. However, again, there is the obvious inconsistency. On the one hand, the court is to have regard to the principle, yet, on the other hand, the court is being told that it must ensure that a child must not be intimidated. Is it a principle or is it a direction? What happens if the court, for some reason, fails to do so? Is there a sanction? Is it an appeal point? Does the accused walk free if a child is intimidated? Almost every person I know who has given evidence say that they were intimidated. It is, by its nature, intimidating. If a child says, either directly or indirectly, that he or she is intimidated by questioning of defence counsel, what happens? Perhaps the court would adjourn and everyone would try again. What if the child continues to say that the questions are intimidating? Is the trial further adjourned? Is defence counsel then obliged to desist from asking questions, even though it might severely disadvantage his client? What is the judge supposed to look out for - various levels of distress or discomfort in a child talking about the details of a sexual assault?
It is, is it not, potentially the case that every child who is questioned about the veracity of his or her claims that they were sexually assaulted will feel or will be intimidated? Yet this bill directs that a child must not be intimidated. This is an absurd direction to include in legislation. If it were not so serious, it would be a joke.
In relation to section 21D(2), there is no guidance as to how a court might ensure that the directives are met. The fact that the Attorney-General has presented this bill in its current form clearly shows that he does not understand it or has simply not thought through the consequences.
Section 21D is what is known as a purpose provision. I am no expert in this area, but I have reviewed the relevant texts and I am deeply concerned about section 21D. I would like the Attorney-General to advise whether independent counsel has considered this section and, for that matter, the bill generally, and I ask that he table the advice received, or did the Attorney-General simply rely upon policy officers at the Department of Justice? If the Attorney-General can answer those questions or table the advice received, then there may be no need for me to continue to have concerns about the matters I have raised. However, in the absence of a satisfactory response or the tabling of the advice, then I can only assume that my concerns are well founded.
A final point I make in relation to section 21D(2) is to observe how absurd the clause is when all of the subsections (a) to (c) are read together. Subsection (a) includes the words ‘must’, as do (b) and (c). Then, for some reason, subsection (d) comes up with the word ‘should’. Why has not the Attorney-General used the word ‘must’ in this very subsection that refers to the length of time the proceedings take? One of the worst aspects of proceedings in sexual assault cases is the delay in getting the cases to court, yet strangely, the Attorney-General does not say that proceedings in which a child witness is involved ‘must’ be resolved as quickly as possible; merely that they ‘should’ be. This is at odds with moves in this country and others to fast-track proceedings, and most embarrassingly of all, it is at odds with the pre-publicity about this bill.
I turn now to clause 11. A new section 105AA provides that a child must give a written or recorded statement and cannot be cross-examined at committal. There are several points to be made in relation to this proposed amendment. The aim, of course, is to limit the number of times a child in a sexual assault case gives evidence. The police interview is therefore admitted into evidence at trial and the child is cross-examined. Is the Attorney-General aware of research in this area that raises concerns about this approach, specifically, that it has a potentially damaging effect on children and that the prospects of conviction may be diminished? I specifically refer to the fact that if a police interview is admitted into evidence at trial, the child is immediately exposed to cross-examination without having had the benefit of being examined in chief, thereby not being able to become comfortable in the court and settling in to friendly questioning before being exposed to cross-examination. Is the Attorney-General aware of such research? I would like to have seen an acknowledgement of it in the second reading speech, together with an explanation – and I do not put it any higher than that – as to why it was considered desirable to adopt this model in any event.
Given the increased importance of the police interview, what plans exist for more specialised training for police officers whose recorded interviews will play such a critical role at trial? Second, I raise the point as to why it is that the Attorney-General has not completely abolished oral examination at committal proceedings for adult victims in sexual assault cases.
I note that in the Attorney-General’s media release of 18 August he says:
What about all victims of sexual assault? Why haven’t the provision of this clause been extended to adult victims of sexual assault? Notwithstanding the observations I have made, the clause might generally be supportable, however, in light of the failings of other parts of the bill, it should not be. The bill needs to be redrafted.
I now turn to clause 17 which deals with time limits. The time limits proposed are absurd and may, in fact, have the effect of not assisting the administration of justice. It proposes a new section 3A, which requires a trial to be commenced within three months after the first mention if the matter is to be tried summarily and, for indictable offences, a trial must be commenced three months after the committal. These time limits are unreasonable and may adversely affect the administration of justice. They are unreasonable because a number of matters may be required to be undertaken which mean that, at trial or committal, it cannot occur within three months. They include but are not limited to: forensic evidence may need to be obtained and often that can take more than three months; it may mean that the DPP is forced to take matters to committal or trial that are simply not ready; furthermore, the Attorney-General is silent on whether additional resources will be provided for more forensic experts in order to speed up the forensic process.
Other examples could be a child might be on holiday; a child might be having Year 10, 11 or 12 exams a week before the trial; equipment might break down, as it often does; often defence lawyers are not ready; or the accused persons may dump their lawyer before trial, thereby requiring another lawyer who will not be able to prepare the case in time. The time limits are unreasonable and unrealistic. The section is creating an evil by putting too much pressure on the DPP, and the DPP will have difficulty complying. Justice is not served to anyone by imposing these unrealistic time limits.
What is most interesting – indeed, disturbing - about this section is the government spin in relation to it. The spin is that these types of matters will be the subject of time limits under the bill. Curiously, the word ‘must’ is used throughout the section in relation to time limits. Despite the word ‘must’ being used in relation to the time limits, however, the final subsection, new section 3A(5), provides for more than one extension to be granted. In other words, the spin is that there are time limits and most of the subsections say that matters must proceed within three months and then, at the very end, in subsections (4) and (5), there are provisions for extensions. This is another example of this legislation not doing what government says it does. On that basis - and there are so many others – it cannot be supported.
It would, however, be supported if the time limits were reasonable and if the government demonstrated it was serious about this issue. Either there are time limits or there are not. What we have before us is a dog’s breakfast. On the one hand, there are time limits, which are unreasonable and absurd and, on the other, there are, in fact, no time limits.
In conclusion, this is bad legislation and those who came up with it should feel embarrassed. I could say that the Attorney-General should also feel embarrassed, but he is not a lawyer and, therefore, does not have any idea what I am talking about. He is marched out, wound up, and told to stick to his script, and he does so often but, in the eyes of many lawyers at least, to his detriment. This bill is not a good one.
The answer is simple; government should go back to the drawing board so it provides the right legislation, not the mess that has been provided. The bill is full of good intentions, but good intentions alone do not make for good law. Frankly, I was astounded when I read this bill. After the briefing I had with the Attorney-General’s office, I was upbeat and hoped that the bill was as good as the pre-publicity said it was. It is increasingly becoming the case that the public packaging of what this government calls ‘initiatives’ falls a long way short of what is ultimately produced. We saw it in the last sittings with the statement on child abuse, and we see it with this bill. Of course, these are just two examples; there are more.
What was interesting about the second reading speech was the lack of detail and lack of evidence of detailed analysis of the bill’s consequences once in operation. I do not know who wrote the minister’s speech, but much of it was incomprehensible and other parts of it were simply rubbish. I also do not know why the Attorney-General cannot employ people with the relevant practical experience, either in the law or in the area of policy.
This bill is not supported and it should not be. We ask the Attorney-General to adjourn this debate so he can instruct his departmental officials to consider the difficulties I have highlighted. There are many and it deserves more than just the committee stage.
I would like to have supported this bill today, Madam Speaker, but find that upon detailed examination, we cannot in conscience do so. The government has missed its opportunity. The Attorney-General represented to Territorians and stakeholders that the bill achieved many desirable outcomes. Had it done so, we would have supported the bill today. However, the bill does not do what it purports to do and the Attorney-General’s shameless politicisation of children and other vulnerable witnesses is to be condemned.
Members: Hear, hear!
Dr TOYNE (Justice and Attorney-General): Madam Speaker, at the outset and before we deal with the detail of what the member for Araluen has had to say, I certainly detected a degree of arrogance in her contribution to this debate.
I am happy to take on board the points she would like to make about the content of the legislation. She honestly believes that she is a higher authority on these things. The way that legislation is developed, as we do it, is to go to the people who are experts on these matters. We balance the advice we receive and propose legislation we honestly believe will address the issues at hand.
In the single speech that she has made, she has managed to cast severe aspersions on the integrity and competence of our prosecutors and courts. She does not trust them with any degree of discretion on these matters. I do not share that view and I will never share that view. When you look at the expertise and the integrity of our courts, to be saying that any degree of discretion in the legislation is somehow going to undermine the intent of the legislation is insulting. It is simply insulting to the integrity of the people who work in our courts day by day. I do not accept that the member for Araluen is the only one in the world who understands what needs to be done to protect witnesses, particularly child witnesses. I do not believe that the member for Araluen is the only one in the world who can speak with authority on the rights or the interests of child victims of these crimes. I, for one, will always defend the need for discretion and flexibility in the way in which our courts operate on any offence that comes before our courts.
I believe that we have found that balance in the bill under discussion today. We have without doubt provided new ways in which child victims of these terrible offences can be heard effectively in a court hearing. We have introduced new provisions that will limit the degree the trauma that a child victim will suffer subsequent to being the victim of the offence itself despite the assertions from over there that it will drag children into not only the hearing itself, but into committal proceedings so we have two times in court where a child victim has to be subjected to a court process. We do not believe that is the way to go. We believe that you have to go in the opposition direction, and that is what our legislation does.
To deal with the raft of objections that the member has raised today, claiming clause 4 is a rehash of the existing provision, you have to go on the words. Clause 4 retains discretion for the court to exclude questions. At the same time the provision ensures that the court must consider age, maturity, cultural background of the witness as well as any mental, physical or intellectual characteristics of the witness, and the principles in relation to the child witness. The legislation provides appropriate guidance to the court, the things that the court needs to consider, when deciding to disallow a question.
We have highly qualified judges overseeing these court proceedings. It is quite within the powers of our judges to strike a balance between the need to exclude intimidatory or harassing questioning styles from lawyers in the court, particularly defence lawyers, and at the same time absolutely consider the factors in this legislation. That balance point is for the judges; it is well within our ability of our judges to strike.
In respect of section 21A, the member says that subsection (2) needs further amendment. She is arguing against balancing the processes and outcomes of the justice process with the rights of the victim. I do not think the member either respects or understands the role of prosecution in these processes. The prosecution makes these judgments on a day by day basis. It is for the prosecution to decide whether it is going to be advantageous or within the interests of the victims of these crimes to use or not to use this method of giving evidence.
There will certainly be cases where a victim may actually say: ‘I want to go in there and give evidence on my own behalf”. It might be a part of the process of closure that they are seeking from the court hearing. If they express that need, I have seen many examples where prosecutors and our Director of Public Prosecutions have used that discretion, have been very aware of the victim’s wishes in the hearing, and have responded to them appropriately. I do not think we should be mandating a particular course of action to the point where our prosecutors cannot make that judgment.
In respect of the Victorian legislation that was cited by the member, the Evidence (Audio Visual and Audio Linking) Act, it was being proposed quite recently by the member as the model on which we could base our legislation. She said that the government could amend section 21A(2)(a) of the Evidence Act by providing the definition in the Victorian act, which she says is in the best interests of the child and consistent with the interests of justice. We have done better than that. The principles that we have included in the bill are wider in scope and are more detailed than the Victorian provisions she is holding up as the national benchmark.
I remind members of the principles in 21D:
Further, the Victorian Evidence Act provisions are not considered to be the best model available. Proposed section 21B draws on the Western Australian model for the presentation of evidence from children. The existing Victorian legislation only provides for recorded examination-in-chief of the child to be admitted as evidence. Research by the Victorian Law Reform Commission Sexual Offences Final Report at page 269 indicates that relatively few tapes of evidence have actually been used in trials under the Victorian legislation.
For all the fear-mongering in which the member has indulged in her assessment of our bill, it is a fact that the member’s own preferred position was inferior. It is inferior to the provisions in this bill.
The member drew attention to the grounds for defining what constitutes vulnerability for a child witness. We have included in the bill a number of offences, which are, as the member quite rightly pointed out on that occasion, wider than purely sexual abuse. If you are going to talk about protecting vulnerable child witnesses, why would you narrow it down to the sexual offences that the member speaks of? Why would you not have a wider application of these vulnerable witness provisions within our court hearings?
Our purpose is to protect children from the trauma of court proceedings to the greatest degree possible within the constraints of having a just and effective outcome from a court hearing, not to simply protect them as regards a narrow range of offences. If the member wants to get out there in the public discourse and say that she does not believe that children victims of assault should have these vulnerable …
Ms Carney: Do not lie! Do not lie!
Mr Dunham: But she did not say that, you see. You should be careful about verballing her outside. That is a threat that you are going to tell lies about her outside here. Unbelievable!
Madam SPEAKER: Member for Araluen, withdraw that. Stand and withdraw.
Ms CARNEY: I withdraw the reference to lying, Madam Speaker.
Madam SPEAKER: Stand and withdraw.
Ms CARNEY: Yes, Madam Speaker, of course. Yes, withdrawn.
Mr HENDERSON: A point of order, Madam Speaker! The member for Drysdale has accused my colleague of lying, and I ask him to withdraw.
Mr Dunham: No.
Madam SPEAKER: Member for Drysdale, did you? Withdraw.
Mr DUNHAM: I accused him of threatening her, Madam Speaker, and saying that he would tell lies outside this place.
Madam SPEAKER: Member for Drysdale, just withdraw.
Mr DUNHAM: I withdraw that, but it would seem that that is the case, wouldn’t it?
Dr Burns: You can never let go, can you?
Mr Dunham: This is serious stuff. You should not be running it like this.
Madam SPEAKER: Order!
Dr TOYNE: Moving, if I may, to the next issue that the member raised in her contribution, and this is the matter of what happens in the handling of recorded evidence, videos or other recordings of the child victim or child witness. The Department of Justice has written to the Supreme Court offering assistance to develop guidelines to support the provisions in relation to pre-recorded evidence. The bill contains provision for the court to make orders about the procedures for recording, possessing, playing, erasing or editing of recorded evidence. It is not appropriate to be any more prescriptive in the bill, as the circumstances of each case are likely to be different.
It is anticipated that the court will develop standard orders to cover these issues. Other states have provisions for pre-recorded evidence and have already developed effective guidelines in this area of court operation. The court has its own capacity, at any time, to develop rules and guidelines for the conduct of hearings, including the deposition of such recorded evidence.
Again, the member should have a bit more faith in not only the capacity of our courts and judges, but also the track record of our courts in dealing with these matters. I trust our courts, in conjunction with my department, to come up with an effective set of orders and guidelines to deal with these recordings of evidence.
The member also called attention to the question of whether the prosecution actually can elect to use this type of evidence. She is correct in saying that this procedure is to be available at the election of the prosecution. It is anticipated that the prosecution will determine whether to use the procedures available under section 21B in consultation with the witness and other relevant people such as the Witness Assistance Service. By providing a process where needed, we ensure flexibility for individual cases. To prescribe video-link evidence as the only form of evidence may take us to assume that it is always desirable in the interests of justice.
I note that the Victorian Law Reform Commission, in its recent Final Report on Sexual Offences, Law and Procedure, does not recommend that pre-recording of children’s evidence should be mandatory. It recognises that there will be some cases where the victim will not wish to give evidence in this manner, and I have already referred to that in some of my earlier remarks.
In respect of the use of closed-circuit TV in Alice Springs, there is only one jury court room at the Alice Springs Law Courts and, when closed-circuit TV is used in this court room, the victim can see some or part of the jury. However, CCTV is not used in all sexual assault trials, and often victims prefer to use a screen.
Vulnerable witness arrangements, such as CCTV and screens, are primarily aimed at protecting the victim from the accused. The amendment to require that the court will be closed, clause 5, while a vulnerable witness gives evidence in relation to a sexual offence, will also ensure that any associates of the accused are excluded from the court room.
I am watching very closely the trials we are developing in the Alyangula Court House where intimidation or attempted intimidation of victims and witnesses giving evidence in support of victims has been identified as a particular problem. We will be installing and trialling both video-conferencing links to separate the witnesses and victims from the alleged perpetrator and their associates, and we will be looking at what impact that has on the outcomes of those cases.
New section 21B(3) allows for cross-examination of children in court. The bill must permit that evidence be tested. I cannot believe the member opposite does not believe evidence needs to be tested, even when it is evidence being given by a child victim or witness. Justice requires this to be carried out. What we have done is put in place all the measures to ensure that it is done in the least traumatic manner to the witness. I remind members that the same principle applies to our response to the proffering of customary law evidence in court hearings. It is exactly the same principle: if evidence is submitted to a court, it must be tested to the highest degree that the court can facilitate. This is exactly the same principle. To think of any witness being able to give evidence without the capacity for the court to fully test that evidence is simply not in the interests of justice. I do not accept for a minute the member’s proposition that we somehow curtail that testing process.
What I also do not accept is that if you are going to test the child’s evidence, at least constrain that process to a single event, rather than have it occur both in the commital stage and the trial itself.
Turning to video tape and equipment, the member claims the bill allows for such recording at any time. Yes, this is to allow maximum flexibility. However, it is illogical to go to trial without it happening beforehand. If anything further needs to be recorded, the hearing will not commence until the pre-recording takes place.
On the issue of unrepresented defendants, a defendant will be in the same room as the judge and normal practices will prevail. They will not be in the same room as the vulnerable witness in a special hearing.
I covered the definition of ‘special measures’ in my earlier comments. I again say that the provisions within our bill today are wider and more specific than the Victorian Evidence (Audio Visual and Audio Linking) Act, which the member has been citing as being the bees knees of provisions around the country. This is simply not true and she needs to read a bit more widely as to the …
Ms CARNEY: A point of order, Madam Speaker. The Attorney-General suggested that I suggested that Victorian legislation is the bees knees. Not at all; I merely suggested to him that he may wish to borrow one paragraph of a subsection …
Members interjecting.
Mr Kiely: Isn’t that a personal explanation? Why don’t you learn standing orders? It is a point of explanation.
Madam SPEAKER: Member for Sanderson, that is unnecessary. There is no point of order, as you know.
Dr TOYNE: Thank you, Madam Speaker. There is no doubt that the member is enamoured of the Victorian legislation so she can complain all she likes. If you put something on record I have every right to use it in debate.
In terms of playing dictionary games with the principles in this bill, there are many understood terms within our courts. There have been numerous proceedings in which principles of law have been defined through repeated use and testing. Terms such as what is ‘in the best interests of the child’ have been used as an overarching principle in law for many years now. In the case of that particular principle, the courts have no problems administering or applying that principle to the outcomes of court hearings.
The member clearly has no confidence in the judiciary to understand principles or special measures.
Ms Carney: Rubbish! Not even you believe that.
Mr Dunham: You are arguing that the bill is redundant. You know that, don’t you?
Dr TOYNE: I am simply saying our courts not only have the capacity to do that, but they have demonstrated that capacity on many occasions in the past. Again, I totally reject the member’s lack of confidence in our courts to use their undoubted ability to apply the principles that we have included in the bill.
Mr Dunham: Is the bill a vote of no confidence?
Ms Carney: It is a vote of no confidence in you and your bill.
Madam SPEAKER: Order!
Dr TOYNE: Madam Speaker, there was an extraordinary suggestion in the member’s contribution that since this bill requires a witness to be treated with dignity and respect at section 21D(2)(b), somehow all other law in existence means that other witnesses do not deserve that level of treatment. It is an absurd argument. These are measures, which will guide the process …
Ms CARNEY: A point of order, Madam Speaker! The Attorney-General is attributing to me words that I did not say and propositions I did not put. I remind the Attorney-General to be honest when he is replying in this debate.
Madam SPEAKER: Member for Araluen, you can always make a personal explanation or explanation of speech if you think you have been misquoted.
Dr TOYNE: Madam Speaker, I want to point out that I heard the member out in silence, despite some of the ridiculous things she was saying, and I want to continue my contribution uninterrupted.
The claim that intimidation is an essential component of the advocacy process shows how committed the member is to protecting child witnesses. Oh, heavens above, we cannot allow them not to be intimidated. That is absolutely …
Ms CARNEY: Madam Speaker, I object very strongly. He is lying! He is lying! He is lying!
Members interjecting.
Madam SPEAKER: Order! Order!
Ms CARNEY: How dare he?
Madam SPEAKER: Member for Araluen!
Ms CARNEY: Madam Speaker, please! I will withdraw ‘lying’ and substitute it with ‘misleading’ if I may, Madam Speaker.
Madam SPEAKER: Member for Araluen, just try to contain yourself. You can have your response in time, but you know that was out of order.
Members interjecting.
Madam SPEAKER: Order! Minister.
Dr TOYNE: On this particular point, I leave the member to her world where she seems to think that it is okay to intimidate children in court. We introduced this bill for exactly to …
Ms Carney: You pig!
Members interjecting.
Dr BURNS: Madam Speaker, a point of order. The member for Araluen just said ‘You pig!’ She has to learn that this is a parliament, not a pig sty.
Mr Elferink: Are you going to give us a lecture on decorum, are you, Sunshine?
Madam SPEAKER: Member for Araluen. Withdraw, thank you, if you made that remark.
Ms CARNEY: I withdraw ‘pig’ Madam Speaker.
Madam SPEAKER: Now, let us just settle down. You will all have your chance to respond. Minister.
Members interjecting.
Mr Elferink: You, mate, are a grub of the lowest order. Don’t you ever come in here …
Dr Burns: Don’t point at me!
Mr Elferink: Why? Does it upset you?
Mr KIELY: A point of order Madam Speaker! The member for Macdonnell is standing over there making threats to the member for Johnston.
Madam SPEAKER: Member for Macdonnell, just contain yourself!
Mr ELFERINK: Speaking to the point of order, Madam Speaker, I made no threat whatsoever and he is just making stuff up. This House has to be under control, Madam Speaker, and he is not controlling himself.
Madam SPEAKER: I think you need to practice what you preach. Minister, in finishing your debate, would you perhaps refrain from provocative comments and we might get through it?
Dr TOYNE: I will be glad to finish the debate on the bill, Madam Speaker, and I intend to do that.
Madam Speaker, much of the member’s concern about the wording of the bill is a matter of semantics. Her contrasting of ‘must’ and ‘should’ in section 21D(2)(d), and the phrase that proceedings ‘should’ be resolved as soon as possible, and the member suggesting that we should be saying ‘must’ be resolved as soon as possible. Again, we get down to the principle very clearly stated in the provisions in the bill that we want proceedings to be resolved as quickly as possible within the bounds of achieving a just and thorough hearing of the case. To be defining this in such a prescriptive manner again denies the judgments that the court has to make continually in progressing a case.
We believe that our courts are capable of making these judgments about what is both in the interests of the child victim to resolve the matter as quickly as possible, but balancing that against the absolute responsibility of the courts to ensure that a fair trial has been provided for both the victim and the accused. Again, we do not believe that legislation should be prescribing absolutely the way a court hearing should proceed.
Another point raised was the use of pre-recorded video evidence, and why not make this available more widely to female victims instead of just children and vulnerable witnesses? The recommendation of the Law Reform Committee in relation to the use of pre-recorded evidence focussed on taking evidence from the most vulnerable victims. This is consistent with models in other jurisdictions. The bill introduces other mechanisms that will reduce the trauma associated with giving evidence for adults. These include the introduction of time limits and the requirements to close the court while evidence is given. Existing vulnerable witnesses provisions in the Evidence Act also provide assistance to adult victims who give evidence.
The final point was the question of time limits. We have introduced in clause 17 of the bill a requirement for a trial to commence in three months. This will require all parties to focus clearly on the need to get the matter on, and there is a very sensible provision in the bill recognising that there may and probably will be occasions when, because of the complexity of the investigation or the need to finalise forensic evidence, that time period needs to be extended. That is at the discretion of the courts.
Victoria has the same provision in their legislation, and it has been there for a number of years now. What we have heard from the Victorian courts is that there is no problem dealing with a time limited structure for these types of offences. Court proceedings have actually got on earlier than they did prior to that provision being introduced. That is the aim of this provision in our case. We are very encouraged by what has happened in Victoria when those provisions were enacted there. We believe putting time limits in place is sending a strong signal to our courts to try to get these matters resolved as quickly as possible and it is very consistent with the other provisions in the bill.
I believe I have covered most of the member’s points that she raised in her contribution. I am disappointed that, after having said that she supported the bill, for some reason out on the public record she is now offering pungent opposition to it. I can assure the member that while the world sometimes does not accord in detail …
Madam SPEAKER: Minister, your time has expired.
Mr STIRLING: Madam Speaker, I move that the minister be granted an extension of time such that he may complete his remarks.
Motion agreed to.
Dr TOYNE: Madam Speaker, I wish to report a Clerk’s amendment, which was picked up as the bill was prepared for presentation to parliament. In subsection 21B, Pre-recorded evidence of certain vulnerable witnesses, the amendment substitutes the wording in subsection (3): ‘If pre-recorded evidence is given in subsection (1)(a)’, it now becomes ‘(2)(a)’, and in (4) of that same clause: ‘If evidence is given by video tape or other means under subsection (1)(b)’ should read: ‘subsection (2)(b)’. It is what is known technically as ‘a typo’.
Motion agreed to; bill read a second time.
Debate suspended until after Question Time.
Madam SPEAKER: Members, I have given the member for Araluen permission to make a personal explanation about some issues on which she felt she was misquoted.
Ms CARNEY (Araluen): Madam Speaker, I seek to make a personal explanation in relation to allegations made by the Attorney-General this morning in which he both misquoted and misunderstood me.
First, he alleged that I believe that witnesses should be intimidated when giving their evidence. What I said was, and I quote:
I went on to say:
In relation to the second allegation that I do not have confidence in the courts of the Northern Territory’s ability to make decisions, I say in light of some of the prescriptive parts of the bill, such as those contained in section 21D(2), it is the Attorney-General who, some might conclude, does not have faith in the justice system. His comments in any event were extraordinary and offensive.
Third, the allegation that I believe that the Victorian Evidence (Audio-Visual and Audio Linking) Act is, to use his words, ‘the bees knees’ of Australian legislation. First, in respect of this, the Attorney-General should not presume to know my views about that act. Second, what I said was: ‘If it …’ meaning government ‘… does not want to repeal that subsection …’ referring, of course, to subsection (a) of (2)(A) of section 21A of the Evidence Act, I said: ‘If it does not want to repeal that subsection, and it should, but if the Attorney-General cannot bring himself to get rid of it, he could amend it by borrowing from the Victorian Evidence (Audio-Visual and Audio Linking) Act and amend subsection (A) to read: “in the best interests of the child and consistent with the interests of justice”.’
Continued from earlier this day.
In committee:
Clauses 1 to 5, by leave, taken together and agreed to.
Clause 6:
Ms CARNEY: Clause 6 in the bill details pre-recorded evidence of certain vulnerable witnesses. As I said in my reply to your second reading speech, it does not include the crimes of murder and manslaughter. Why is that?
Dr TOYNE: One good reason is that the victims are dead, so they do not need to be protected when giving evidence. The second reason is that it was the clear intent to make the focus of this bill offences involving children as victims.
Ms CARNEY: You are aware that this bill that you have presented applies to victims and witnesses, are you not?
Dr TOYNE: Yes.
Ms CARNEY: Yes. Is it not the case that children can witness murder and manslaughter?
Dr TOYNE: Yes.
Ms CARNEY: Yes. Therefore, as witnesses who might be vulnerable, having witnessed a murder or a manslaughter, why is it that murder and manslaughter have been excluded from this bill when something like grievous harm or common assault is included?
Dr TOYNE: We have had an extended discussion of the point that you are making. Certainly, in cases where children witnessed killing offences, they will be dependent on existing vulnerable witness provisions within the act.
What I find very strange about this is that you have made this point on the floor in the absence of any either prior negotiation of the contents of this bill or …
Ms Carney: And that is relevant because?
Dr TOYNE: … circulating any sort of formal amendment …
Ms CARNEY: It is too much of a mess for amendments. If I had thought you would listen, I would have come to see you …
Mr CHAIRMAN: Order, order!
Dr TOYNE: You are obviously not showing any heartfelt commitment to the …
Ms CARNEY: Oh, do not carry on. Sit down if that is your answer.
Dr TOYNE: There is a process that we have been through – what? - 87 times now on bills that I have presented. I have made it very clear right from bill number 1 some three years ago that we not only offer a process of negotiation on amendments that have merit, but the process I indicated at the time was that you can assess the bill, have a look at any areas that you feel could be improved by further amendment, and you can negotiate that with us to give us a chance to have it assessed by the capacity of our agency. If they have merit, we pick them up. We have done that on quite a number of occasions over the history that I have been carrying legislation through this House.
It is simply impossible to assess the impact of the change you appear to be arguing. You are not proposing any amendment that we have to decide upon. We will have a look at it and, if there is a gap there, we will fill it. However, we cannot do it through this process that you are talking about.
Mr DUNHAM: A point of order, Mr Chairman. What the Attorney-General said is amazing. He used the word ‘impossible’. It is impossible for him to assess and amend a bill in this parliament on debate. I find that grasp of standing orders absolutely astonishing. The whole purpose of debate is to enable various views of members to participate and is extremely common, including your pool fencing by laws …
Mr CHAIRMAN: What is the point of order?
Mr Burke: He is talking in committee.
Mr CHAIRMAN: Yes, but you raised a point of order. I wonder what it is.
Mr DUNHAM: What I am saying, Mr Chairman, is going into committee and discussing the innards of the legislation is entirely the proper way for us to seek to amend legislation. Amendments can be made from the floor and on our feet and the Attorney-General should not describe such a process as impossible.
Mr CHAIRMAN: I understand where you are coming from, but I do not think there is a point of order. Member for Araluen.
Ms CARNEY: Thank you, Mr Chairman. It is the case, Attorney-General, that some of the things you did say were extraordinary. In relation to an offer as you described it to, as I understand it, come and see you about legislation, if I thought you and your staff would listen, I would.
If I thought you acted with any degree or any sense of honour these days, I would. Given that you and your office do not, I am in a position where I need to do what I can legitimately on the floor of this parliament and, as the member for Drysdale said, there is provision to amend any legislation on the floor of this parliament. I have my standing orders here; you might like to have a look at yours.
Now, what you did not say in your answer, however, is you did not answer the question. Why have murder and manslaughter been excluded? Or perhaps I could put it this way: did you, with all of the resources that you have, as opposed to those I have, consider it? If so, what was the basis upon which you chose to exclude murder and manslaughter from this proposed section?
Dr TOYNE: Mr Chairman, the basis is probably encapsulated in the title of the bill: the Evidence Reform (Children and Sexual Offences) Bill. The focus was very clearly on children as victims. Children involved in killing offences as victims are not alive to give evidence, so by definition are not the focus of this legislation. The other part of it is sexual offences. We were very clearly focussing on the same raft of offences that you have often talked about in parliament from your maiden speech onwards. We made that the focus of this legislation.
The aim of the legislation is to provide very widespread additional protection for children who are victims and, as a secondary issue, witnesses to these types of offences.
Any legislation introduced will have a certain degree of currency over the total area of offending. I think the member has been very carefully avoiding acknowledging the fact that the contents of this bill give absolutely significant new support to children victims and to children in general appearing in court cases.
You can concentrate if you like on the areas that you consider to be omissions, but I am concentrating on the fact that when we pass this bill today, and I am sure that it will be passed, that there will be absolutely significant new support and protection for children who have suffered, in many cases, an enormous amount of trauma even before they walk through the court room door. That is my focus.
Now you can pick away, and you can call me dishonourable if you like. I am not going to be dissuaded from taking this legislation through to conclusion today for one reason: I do not want another day to go past where we do not offer a changed process in our courts to not only protect these victims from further being traumatised by the court process itself, but also I cannot wait to see that we get an impact on the conviction rates for these types of offences.
That is what this is all about. It is not about picking around on legal technicalities; we have to support these children. They have been victimised enough already and we don’t want the court process to victimise them further.
Ms CARNEY: Attorney-General, you said some conflicting things. One was that the focus of this bill was on sexual offences. You may recall that in my reply, I referred to seven or eight offences that covered everything from acts intended to cause grievous harm, grievous harm, endangering life, bodily harm and common assault, so it is not actually the case that this is focussed on sexual assaults only. I put that to you for your consideration.
The second thing you said was that you were keen to get this through today because you were not prepared to wait for one more day to go by where children are traumatised. I put it to you that in fact you are prepared to wait in respect of witnesses who are children who have witnessed crimes of manslaughter and murder. Why are child witnesses in those cases excluded from this legislation which, by its contents, is not confined to sexual offences anyway?
Dr TOYNE: You have made your point, I gave my reply. Let’s move on.
Ms CARNEY: Well, I cannot get any sense. Would you …
Dr TOYNE: I have made my point.
Ms CARNEY: I will put something to you and I hope that you will agree, although your arrogance suggests that you won’t.
Dr TOYNE: Dishonourable and arrogant.
Ms CARNEY: Would you be prepared right now for us to get an amendment done? It has clearly been an omission. I know that and you know that …
Dr TOYNE: No.
Ms CARNEY: You are not prepared to amend the bill to say that children who witness crimes of murder and manslaughter have the same entitlements under this bill as other children?
Dr TOYNE: If you really felt that, where is your amendment? Let us move on.
Ms CARNEY: That is your attitude?
Dr TOYNE: Let’s move on.
Ms CARNEY: That is your attitude? That is an incredible attitude from the Territory’s first law officer and one which I have already conveyed to a number of people around the Territory, but your quotes in committee stage are going to be a laugh.
Mr CHAIRMAN: Are you moving on from clause 6, member for Araluen?
Ms CARNEY: I am still on clause 6, Mr Chairman. Yes. This is the pre-recording of evidence. You will note that I raised a number of concerns about what happens to the video.
I suggested that it could be given to an offender, it might be edited and then end up on the Internet. As some people know, when a child gives evidence, particularly in sexual assault cases, it is the case that some people might find that evidence of particular interest. I refer in particular to the sick pups who not only surf the Net chasing child pornography, but who generally get off on this sort of stuff, to put it as plainly as I can. That is a concern.
In my speech, I outlined some other concerns about what might happen to the video. In Western Australia, in section 106M(a) of the relevant legislation, they provided a section headed ‘Unauthorised Possession or Dealing in Video Taped Evidence’, which prohibits people from using it and prescribes a financial penalty. I am wondering whether you entertained the idea of taking that clause from the Western Australian legislation and putting it in the bill since you said in your second reading speech that the bill is, to a large extent, modelled on the Western Australian legislation.
Dr TOYNE: Mr Chairman, of all the things you have said that are quite insulting to the integrity of our courts, this is probably one of the most appalling examples.
Courts are well aware of their obligations to manage issues such as sensitive material. They exercise those powers all the time. Courts can suppress names and close courts during proceedings dealing with such sensitive material. They manage that on difficult prosecutions every day of their operation. The court’s ability to make an order on the use, existence, misuse of materials, is inherent in their jurisdiction. They have the power to punish under contempt of court for such misuse or contravening of an order by the court. What you are inherently saying is that unless we legislate to tell the courts that they cannot allow the misuse of this material, they will simply not be trusted to carry out the functions they already have a huge track record of dealing with.
I am aware of the Western Australian provision. We do not believe that we need a legislative provision to tell the courts what they already know, which is that if sensitive material is involved in a hearing, it is very much the jurisdiction of the court to make sure that such sensitive material will be protected from misuse.
I said earlier in debate that the court has the capacity to make orders and guidelines to direct the deposition of this material, both during hearings and beyond. We will be in discussion with the Chief Justice about the best way to handle this, and we will certainly make available any of the input from the Department of Justice that he may call for as part of that process.
The bottom line on all this is that I trust our Chief Justice and his courts to take this matter to hand and to deal with this material. You clearly do not.
Ms CARNEY: First, you are quite wrong. You have, once again, either deliberately or inadvertently misunderstood my question.
Your arguments are completely inconsistent because you are saying in respect of this question that you trust the courts to act appropriately, yet, and I will come to it later, an example is the proposed new Section 21D. If you trust the courts so much, why do you prescribe things like: ‘the child must be treated with dignity, respect and compassion’; ‘the child must not be intimidated’; and ‘the court must take various measures’? So, do you see the inconsistency that in one part of your bill …
Dr TOYNE: No, I don’t. No, I don’t.
Ms CARNEY: Hang on. No, let me ask the question. In one part of your bill you are saying we are just going to leave it to the courts, and yet, in a couple of clauses over the page, you are actually being very prescriptive in what you are telling the court to do.
Dr TOYNE: Let me explain. In one case, there are some procedural arrangements that need to be put in place by the courts to ensure that such things as the security of sensitive material is handled with integrity. The courts, quite clearly, have a responsibility to ensure that there are orders and guidelines in place to ensure that happens.
The principles in this bill will have a completely different purpose. The principles are not enforcing specific arrangements on the operation of a court hearing. What they are indicating through the legislation, and it is very often done by governments, and increasingly so, is to clearly indicate the intention of this parliament in the legislation.
It tells the court what we had in mind when we introduced this legislation. It gives the courts an indication of what outcomes the community, through its parliament, wants from the operation of the courts around this area of law. They are not enforceable in the detail of the way a court is to operate; they are principles, as the name suggests, of which the court should be aware when it is conducting a hearing.
Ms CARNEY: Okay. As I understood your answer, you do not accept that by not providing a sanction in relation to the improper use of video material, that it is not inconsistent with something like, say, the proposed section 21D. It is difficult to reconcile. It does not make any sense. However, you said that you were aware of a section of the equivalent Western Australia act to which I referred, section 106M(a), I wonder whether you are also aware of section 106M(b), which is headed ‘Broadcast of video taped evidence prohibited’ and it says:
It prescribes a penalty of $100 000 or imprisonment for 12 months, not penalties that I have ever heard in relation to contempt of court. They are significant penalties and the legislature has been very clear in expressly prohibiting this.
Do you accept that the better view, like the Western Australians and other jurisdictions, would be to specifically prohibit the broadcast of video tapes of children giving evidence in sexual assault cases and come up with a similarly high penalty, such as $100 000 or 12 months in prison or both?
Dr TOYNE: We probably have a fairly fundamental difference in outlook on the relationship between the legislation and the courts, and the need for the courts to not only exercise discretion in hearings, but for legislation to actually preserve that discretion. Either you trust the courts to make competent decisions and arrangements to maintain the integrity of not only the processes they are following in sensitive areas, but also maintain the integrity of restricting access to that sensitive material or its dissemination.
As much as I would love to think that every word of legislation we pass through this parliament changes life 100% to the intended purpose of the legislation, the reality is that what happens in the court through its guidelines, through its orders and, most importantly, through the individual competence and judgment of the judge who presides over that hearing is far more important than anything that we could put around it in legislation that is trying to guarantee that nothing will be mishandled regarding the matters you are talking about.
That is the view I have taken; that is the advice that I have received arising from the work that has gone in to this bill. You clearly do not agree; you probably never will agree on this. You want to legislate to tell the court that we will take away the general contempt of court provisions available for every hearing that occurs. If material is deliberately misused by a participant or another party coming out of the court hearing, contempt provisions are there to deal with that.
I have said this repeatedly: our courts are competent to operate on that basis. I do not feel the need to individually legislate against potential mishandling incidents. The reality is, on a vast number of occasions our courts are already dealing with sensitive material that could potentially get out into the community and potentially be misused by some individual. The reality is that that rarely, if ever, happens. That is where I am basing my faith; we do not have a record of this getting out into the community.
I find it absolutely bizarre that you are sitting there obviously trying to tear brick by brick away from this legislation …
Ms Carney: Because it is very bad legislation.
Dr TOYNE: It is not bad legislation!
Ms Carney: Very bad legislation.
Dr TOYNE: It is not bad legislation!
Ms Carney: It is. It is not good. It is stuffed up.
Dr TOYNE: You were saying it was good legislation several weeks ago. It is still on your web site.
Ms Carney: It is cut and paste and it is not a good result.
Dr TOYNE: Do not tell me that suddenly, it is bad legislation and you are going to sit here for the next three hours telling me …
Ms Carney: I take this legislation more seriously than you apparently, which is amazing.
Dr TOYNE: ... all the things that could, in Noddy Land, go wrong with this legislation. My best advice on the amount of work, and there has been an enormous amount of work put into this …
Ms Carney: It has not been worked on hard enough.
Dr TOYNE: … is that these provisions are going to be an enormous new support. I am going to get on with this and we are going to put it into our courts and we are going to start using it.
Ms CARNEY: Yes, and unless you amend it, unless you defer debate on this bill, you will be back here amending it. Although you are so ego driven, you probably will desist …
Mr KIELY: A point of order! Mr Chairman, we are here to debate the bill.
Mr CHAIRMAN: What is your point of order?
Mr KIELY: The point of order is relevance. This is not relevant to what we are doing here at the moment.
Mr CHAIRMAN: There is no point of order.
Ms CARNEY: My point is that I do not think you will be able to bring yourself to amend what is quite bad legislation.
I will not deal with some of your other comments because it is unnecessary for me to do so. You understand, I hope, that you are relying on contempt and you seem to be suggesting that no one will use the video evidence of a child giving evidence about a sexual assault because miraculously, a court will charge you with contempt. The court has to make an order that is breached in order for someone to be in contempt of court in many cases, but not all.
We are substituting evidence in sexual assault cases that has only ever been in statement form - not something the sick pups on the Internet get off on as a matter of course - with a video, which is a living, breathing document that has very personal and very sensitive details in it. Isn’t it time that you specifically produced a penalty for the unauthorised and improper use of that? It is not something we have had to deal with before. You cannot just say there is a contempt provision so therefore I am not obliged to amend the bill.
This will be my final question on this point, but certainly there will be others. Are you saying that you do not believe it is possible for an offender to get hold of the evidence of a child in sexual assault cases and that it is not possible for that person to edit it and then it ends up on the Internet? I think it is possible. I want to know what you are going to do about it and why haven’t you imposed a penalty?
Dr TOYNE: Mr Chairman, your scenario is that if anything possible could go wrong with legislative provisions once they get out into the real world, you somehow do not legislate. If that were the case, we would not pass any bill through this House. I have said my piece about this. There are processes and protections in the way the courts currently operate and the provisions available to the court. You clearly differ in opinion. That is all it is; a difference of opinion. I do not accept your opinion as being superior in any way to the one that has been developed in our process. Let’s move on.
Ms CARNEY: I am happy to move on. It is unfortunate that either for political reasons you are just refusing to have a serious engagement or exchange of views or whether you just do not understand it.
Mr CHAIRMAN: Are you still dealing with clause 6?
Ms CARNEY: Yes, thank you, Mr Chairman. I referred in my reply to CCTV and I mentioned that pursuant to clause 6, the prosecution can elect to use video evidence. I said that a senior Darwin prosecutor had informed me that CCTV is used in about 15% to 20% of cases in Darwin. Do you have figures on how often witnesses in sexual assault matters use CCTV in Darwin, Katherine, Tennant Creek and Alice Springs?
Dr TOYNE: Mr Chairman, why would I?
Ms CARNEY: You are joking.
Dr TOYNE: For one thing, I am not sure what the basis of your question is because it is only one of a number of things that are used to provide separation between the victim or witness and the alleged offenders and their associates.
Why would I have that here when you have not foreshadowed it up to the time that you made it a feature of this debate? Why did you not come to us with that? The bill was tabled two months ago. Suddenly, you bring it up and expect me to have the figures here in front of me. Well, I am sorry, I do not have them.
Ms CARNEY: I raised it a number of hours ago. I would have thought any Attorney-General worth his salt and his staff …
Ms LAWRIE: A point of order, Mr Chairman. Standing Order 62, offensive or unbecoming words. We have heard a constant stream of …
Mr CHAIRMAN: No.
Ms LAWRIE: Let me finish, please, Mr Chairman. I am referring to a standing order.
Mr CHAIRMAN: I am ruling on that and saying that there is no point of order.
Dr TOYNE: Right. So it is all right that I am called ‘dishonourable’?
Ms LAWRIE: So the standing orders do not stand? I was going to quote.
Mr CHAIRMAN: Yes, I know what you are quoting.
Ms LAWRIE: The order reads:
We have heard a lot of them ...
Ms CARNEY: Speaking to the point of order, Mr Chairman.
Mr CHAIRMAN: Just one second.
Dr TOYNE: It is her mode of operation, Mr Chairman.
Mr CHAIRMAN: Can you say, member for Karama, exactly what the words were that were offensive, please?
Ms LAWRIE: Yes. Dishonourable, the attacks on the character of the Attorney-General …
Ms CARNEY: That was not the point of order, Mr Chairman.
Mr CHAIRMAN: No, no the particular phrase that was used when you raised the point of order.
Ms CARNEY: I will repeat what I said, if you like.
Ms LAWRIE: Yes.
Ms CARNEY: Any Attorney-General worth his salt or his staff …
Ms LAWRIE: Right! Worth his salt. Impugning the character of the Attorney-General, again.
Mr CHAIRMAN: No, there is no point of order.
Mr KIELY: A point of order, Mr Chairman. From that comment, the member for Araluen was also critical of departmental officers, which is not …
Ms Carney: That is not correct.
Mr KIELY: … appropriate parliamentary behaviour. She was offensive and critical of the people in the department who drafted this legislation. Clearly, I heard the member say: ‘The Attorney-General and the people who drafted this are not worth their salt’
Ms CARNEY: Sit down!
Mr CHAIRMAN: Order!
Mr KIELY: That, I believe, is a breach of Standing Order 62 and is offensive to departmental officers.
Mr CHAIRMAN: There is no point of order. I have taken advice on that. No point of order.
Ms CARNEY: Thank you, Mr Chairman. Given that information comes from the fifth floor with great speed on occasion, I note that I raised this matter many hours ago. It is disappointing that you do not have the information to hand. You will remember …
Mr Henderson: Where are your amendments?
Ms CARNEY: If you would like to just sit there quietly, member for Wanguri, you would be doing us all a favour.
Mr CHAIRMAN: Order, order!
Ms CARNEY: I told you that I was advised by a senior Darwin prosecutor that CCTV is not used very often. I know it is not used in Alice Springs, for instance, very often, probably only three times in 12 months, something like that. So it is not used very often.
The reason I raised that, Attorney-General, is that at the same time in this bill, you are giving to the prosecution, the same prosecutors who do not use CCTV, and they are able to do it for all sexual assault cases, the ability to elect to run a case where people give evidence by video. My question is: do you agree that given that prosecutors are generally disinclined to use CCTV, which is a fact, might they equally be disinclined to elect to run a case by video evidence?
Mr KIELY: A point of order, Mr Chairman. The member is asking for an opinion from the Attorney-General. It has nothing to do with the legislation. She is asking the Attorney-General does he believe they would be inclined. I do not see the relevance of this to the legislation. His views on whether a prosecutor will be inclined or not has nothing to do with the legislation.
Mr CHAIRMAN: Member for Sanderson.
Mr KIELY: What is the relevance?
Mr CHAIRMAN: Member for Sanderson, there is no point of order. I will let the Attorney-General answer the question.
Dr TOYNE: The issues that you are raising relate to operations, staff development, attitudes and culture in the way people choose or choose not to use technologies or the various options they have for the taking of evidence.
It is not for legislation to mandate that prosecutors must use CCTV or anything else. What legislation has to do is to provide the opportunity to conduct the hearing in a particular structure, and the practicalities of how that is achieved in a court hearing is not only a matter of what is available and the space in which a court might be operating, it is also a matter of judgment for the prosecutors as to what best suits the needs of their client and what is most likely to provide an effective outcome of the hearing.
It is important to keep the boundary between what legislation should deal with and what operational arrangements are in place in our courts.
Mr CHAIRMAN: Member for Araluen, are you continuing on this line of questioning?
Ms CARNEY: Just a couple more on this, yes.
Mr CHAIRMAN: From the point of view of relevance, can you give me some specificity about which section this is refers to?
Ms CARNEY: It is clause 6 and the proposed new section 21B.
Mr CHAIRMAN: And what part of that?
Ms CARNEY: Subsection 2.
Mr CHAIRMAN: Thank you. I have to keep an eye on the relevance of what you are requesting there.
Ms CARNEY: It is about pre-recorded evidence, Mr Chairman, and vulnerable witnesses, so of course, the use of a CCTV is illustrative of the fact that it is unwise to simply give the discretion to prosecutors. However …
Dr TOYNE: A point of order, Mr Chairman! Could the member please direct us to which particular line or provision in this we are actually talking about? She seems to be jumping around between CCTV and all sorts of things.
Ms CARNEY: Subsection (2):
That one.
Mr CHAIRMAN: Clause 6(2), Attorney-General.
Dr TOYNE: Okay.
Ms CARNEY: Yes, that one. That is the issue: ‘at the election of the prosecution’, like, the prosecution elects whether or not to use CCTV.
In your answer, as I understood it, you were saying: ‘This is okay, it is operational stuff, it is for prosecutors to decide’, and you said it is not for you to mandate to prosecutors in legislation those sorts of operational matters.
There are other examples, but how do you reconcile that with proposed section 21D, where you mandate in very severe terms that a court must do this and must do that? Your argument is an inconsistent one. However, did you consider any other models before getting to the position where you came up with what you have here, that is, that it would simply be at the election of the prosecution to proceed by way of video evidence? Did you look at any other models and what where they?
Dr TOYNE: I believe I have made this point before: 21D are principles. They are simply indicating to the courts the intent of this legislation, what we want to see in the broad, or how we want to see, as a parliament, the interests of children going through the court processes handled. Section 21B is about the means by which evidence is adduced by a court. That is very specific and is dealing with the options that could be used within the hearing at the election of the prosecution for adducing evidence from child witnesses. One is quite a specific indication to the court as to what type of evidence it will be dealing with, and can be dealing with, at the discretion of prosecution. The other is simply the broad principles regarding the interests of the child.
Ms CARNEY: Still in relation to new section 21B(2), for the benefit of the Chairman and you, we are still talking about video evidence, Attorney-General, are you aware that at the court house at Alice Springs there is no video recording equipment? If you are aware of that, could you advise whether the other courts in the Northern Territory have videos …
Mr KIELY: A point of order, Mr Chairman, relevance of that question to this bill. The fit-out of court rooms around the Territory has nothing at all to do with this bill.
Ms CARNEY: Can I speak to the point of order?
Mr CHAIRMAN: I will rule on the point of order. On advice, there is no point of order. This section deals with pre-recordings and the question is allowed.
Dr TOYNE: The first thing is that we are not here to debate fit-out, as the member for Sanderson said. This is legislation that establishes a process that we expect the courts to facilitate.
Like any legislation, there will be the need to resource the operations of the courts to reflect the legislation. Court Support Services advises that recording facilities are available in all Supreme Courts and they are attached to the closed-circuit television system. They do exist, they can be used. I believe we should get back to the legislation.
Ms CARNEY: This is all about the legislation, this part of the legislation being about …
Dr TOYNE: No, it is not. It is about the resources of the courts.
Ms CARNEY: … the video recording of evidence. You were on notice of this, as well. I will not ask you all these questions separately, I will bundle them together. Something in the nature of a sensible explanation would be of assistance. Who do you propose - Attorney-General, if you find legislation like this funny then, good for you. I do not.
Mr KIELY: A point of order, Mr Chairman!
Ms CARNEY: You are shaking your head; you are smirking. This is a serious question …
Mr KIELY: A point of order, Mr Chairman! Under Standing Order 62, once again. It is offensive to infer that the Attorney-General, who brings legislation into this House - any legislation, no matter what it is; it is always a serious issue in parliament - believes it to be funny. That is offensive to his office.
Mr CHAIRMAN: There is no point of order. Member for Araluen, please stick to the question, with not so much comment.
Ms CARNEY: I will if the Attorney-General does, but I note your comments, Mr Chairman, and that is fair enough.
Mr CHAIRMAN: No, member for Araluen!
Ms CARNEY: Attorney-General, who do you anticipate will operate the video equipment? Who will be trained? What sort of recording will occur? Do you anticipate close-up shots of a distressed and crying child? Do you have any idea of whether a shot might be taken from 20 feet back? Will the child …
Mr HENDERSON: A point of order, Mr Chairman! The member for Araluen is treating this process with absolute contempt. We are talking about legislation that protects vulnerable child witnesses in extremely distressing circumstances …
Mr CHAIRMAN: What is your point of order, please?
Mr HENDERSON: I ask her to keep her comments confined to the bill. The training of operators as to how they use equipment has nothing to do with this bill and I would urge you rule it out of order, otherwise I will put the clause.
Mr CHAIRMAN: Minister, I will take advice. The ruling is that we are dealing with pre-recorded evidence. If the member can link the matters she is referring to with the legislation, it will be allowed.
Ms CARNEY: Can you answer those questions? Who will operate it? What sort of recording …
Dr TOYNE: Yes. Court officers is your answer. That is your answer: court officers.
Ms CARNEY: Sorry?
Dr TOYNE: Court officers!
Ms CARNEY: Court officers. Have you given any consideration to matters such as how close up the person will be recorded; whether a child might be required to sit in a witness box? You can shake your head, but it has been considered in other parts of the world. It is not just me saying this stuff. If you knew your subject matter well enough, you would know this. So, please do not shake your head; I am putting to you very serious questions and I would be grateful if you would provide serious and sensible answers.
Mr KIELY: A point of order, Mr Chairman. The member for Araluen is attributing physical actions to the Attorney-General who is clearly not making them. She should confine her remarks to factual events in this House and not attribute any actions to the Attorney-General when clearly it is not so.
Mr CHAIRMAN: There is no point of order. Member for Araluen, please keep your comments to the bare minimum.
Ms CARNEY: In response, Mr Chairman, this Hansard will be sent to a number of interested stakeholders. Given that the Attorney-General is, on occasion, shaking his head and smirking, I think those reading Hansard are entitled …
Dr BURNS: A point of order, Mr Chairman. The Attorney-General was not smirking …
Ms Carney: Well, not just then, but earlier.
Dr BURNS: … and this member is making all sorts of inferences, trying to get them on the record. It is shameful, and she should be called to order on it.
Members interjecting.
Mr CHAIRMAN: Order! There is no point of order, but, member for Araluen, please ask questions specific to clause 6.
Ms CARNEY: Thank you, Mr Chairman. Will a child be required to sit in a witness box, as occurs in some countries? Or will a child be allowed to sit on the floor? Who might make those decisions? Will it be recorded in the court? Have you considered a reform such as the video taping of evidence in informal surroundings as does happen in other jurisdictions? Have you also considered the removal of wigs and gowns when the video taping and questioning occurs?
Dr TOYNE: Mr Chairman, these are operational issues, and I daresay at Estimates next year, you can ask me all sorts of questions about what our court administration and court officers have done in relation to this legislation if you are interested in operational issues, as you can about the resource issues that you have attempted to bring into a debate on legislation. There are appropriate forums to handle different issues.
I would imagine, on the issues you are talking about, there will be operational arrangements. We will need to take into account the particular circumstances of the witness or victim. There will be technical issues in this as to what constitutes an effective recording of evidence.
That is not the purpose of this debate today. If we had to debate through every single operational issue that came out of every bill, it would be unworkable and totally inappropriate. So, as far as I am concerned, if you want to ask any further questions on operational issues, I am simply going to say: ‘Let’s get back to the legislation’.
Ms CARNEY: I am dealing with the legislation. You are ducking my questions and saying that is operational.
Dr TOYNE: It certainly is.
Ms CARNEY: Now, I see what you are doing. Well, you are. The case is in other jurisdictions they have considered this. In some legislation some of this stuff is actually prescribed or it is referred to in the directions that a court can make. It is very relevant. Call it operational if you will. I take that to be an admission that you have not considered it and you will work it out eventually. Do I think that’s a good idea? No, I do not. But, it is like pulling teeth, so I won’t pursue it. I have your answer, anyway, which illustrates, I think, that the act was not terribly well thought out.
Mr CHAIRMAN: Are we still dealing with clause 6, member for Araluen?
Ms CARNEY: Yes, I am, Mr Chairman. I refer you to proposed new section 21B(2)(a). That refers to examination-in-chief that ‘may be pre-recorded and given by video tape or other audiovisual means’. Minister, what are those other audiovisual means?
Dr TOYNE: Audio recordings, DVD, whatever is available and appropriate.
Ms CARNEY: You base that answer on – what? - your own understanding of ‘other audio visual means’? Where do you get that definition from?
Dr TOYNE: Probably from common sense as much as anything because there is a range of technologies available; they are used very widely through our community and the courts are no exception. I am sure the courts, like everyone else, will assess not only current technologies but new ones that come up and they will make appropriate arrangements to take such evidence. That might vary from court to court and from individual to individual, but it is a very clear term, ‘audio visual means’. If you are recording, I think everyone understands that.
Ms CARNEY: I take it that at no stage you considered, unlike the Western Australian parliament, to include a definition of, in the case that the Western Australians did, ‘video taped recording’. Did you consider the desirability of including a definition of this as has been done in other jurisdictions including Western Australia, upon which, as per your second reading speech, much of your bill is based?
Dr TOYNE: Again, we are straying into areas that are in the realm of common sense and operational arrangements. A reasonable person would know what a video tape is and what audio visual recordings are.
If you want to define absolutely everything in legislation, a bill would be the size of the longer Oxford Dictionary.
Ms CARNEY: It is what the definition of section of legislation is. You might be interested, and I say this just in passing, that in something like the Evidence Act, section 4 - it usually is in most legislation - there is a big chunk of definitions. Those sections define things like ‘document’. You might say that it is common sense. It even defines something like ‘judge’. You might say that is common sense. It goes on. You can’t seriously expect your answer to …
Mr Henderson: What is your point?
Ms CARNEY: Well, it is impossible for me …
Members interjecting.
Ms CARNEY: … to take it seriously. Don’t you come in here and say: ‘Listen, girlie, it is all a matter of common sense’ because it is not. You are the Attorney-General, for God’s sake.
Mr CHAIRMAN: Order!
Mr KIELY: A point of order!
Mr CHAIRMAN: Yes, order!
Ms CARNEY: You bring into parliament …
Members interjecting.
Mr CHAIRMAN: Order!
Ms CARNEY: … full of definitions and yet you do not even understand it.
Mr CHAIRMAN: Yes, member for Araluen, please withdraw that.
Ms CARNEY: Yes, thank you, I will, Mr Chairman.
Mr CHAIRMAN: Thank you. Continue, member for Araluen.
Ms CARNEY: Thank you, Mr Chairman. I am looking now at proposed new section 21B(3). You agreed that there was a typographical error there; that was good.
In relation to proposed section 21B(4), still in clause 6, and in particular (a), it refers to a ‘special hearing’. In Western Australia, again, they bothered to provide a definition of a special hearing in their legislation. I am wondering why it is not defined here. Did you give any thought to providing a definition? If so, why did you reject the need to do so?
Dr TOYNE: Mr Chairman, the definition issues that the member raised during the second reading debate have been passed back to Parliamentary Counsel. They have assured us that they have no concerns about the terms used in this bill or the likely level of understanding of those terms by the courts applying the legislation. While you might have a certain degree of concern about it, that is certainly not shared by whom I believe to be the most expert in drafting legislation.
A special hearing is pretty self-evident as to what is to happen. It is a pre-court case hearing where, in the presence of the accused, evidence is taken and recorded. What part of that wouldn’t you or a reasonable person understand? It is a very clear process spelt out in the bill. Sometimes, you have to rely on the clarity of the language in the bill and general common sense and the competence of our courts to apply them.
Ms CARNEY: I do have a question, but I refer again to the definition section of the Evidence Act. You have said, what part of the phrase ‘special hearing’ can’t people understand. Your argument is so flawed, so illogical that I am obliged to say, in relation to the definition section of the Evidence Act, what is it about the word ‘court’ that people do not understand? What is it about the word ‘document’ that people do not understand? What is it about the word ‘judge’ that people do not understand? Your argument is just not sound, and there is nothing I hate more than unsound arguments, but we will keep on.
Minister, can you advise what is intended to be done with unrepresented defendants? Are they permitted to be in the same room when a special hearing occurs?
Dr TOYNE: The accused or co-accused will be in one room with the judge, the vulnerable witnesses will be in a separate area without the accused or associates.
Ms CARNEY: Could you point me to that part of the bill that says that? I cannot see it. It may be there, but can you point me to the part of the bill that actually will ensure that an accused will be in a separate room when a special hearing occurs?
Dr TOYNE: This is subsection 4(b):
Ms CARNEY: Yes. Thank you.
Mr Henderson: I thought you read this.
Ms CARNEY: Well, as I said, it may have been that, but …
Mr Henderson: What is this all about? I thought you had read it.
Mr CHAIRMAN: Order!
Ms CARNEY: So, out of all the points I have raised, I missed one!
Mr CHAIRMAN: Member for Araluen, order!
Ms CARNEY: Mr Chairman!
Mr CHAIRMAN: Member for Araluen, let us keep going, please.
Ms CARNEY: Mr Chairman, thank you. I ask that members of the government side, clearly – well all of them do not understand …
Mr CHAIRMAN: Member for Araluen …
Ms CARNEY: … but those to my left who especially do not would be doing us all a favour if they kept quiet.
Mr CHAIRMAN: Member for Araluen, your next question, please.
Ms CARNEY: Attorney-General, are you aware that in some jurisdictions there is a discretionary power provided in legislation for a court to prohibit an accused from personally conducting his or her own defence in vulnerable witness cases? If so, did you consider including such a clause in this bill and, if so, why was it rejected?
Dr TOYNE: You are misleading the House by putting that proposition. They are not prohibited from carriage of their own defence; they are prohibited from cross-examining in these cases, on my advice.
Ms CARNEY: Sorry, could you repeat the last bit? I missed the last bit.
Dr TOYNE: I will say it a bit louder for you: they are not prohibited from carriage of their own defence; they are prohibited from cross-examining the witness.
Ms CARNEY: Attorney-General, you are quite wrong. There are jurisdictions that provide for this. In Scotland, for instance, the Vulnerable Witnesses Scotland Bill, passed in October 2003, provides:
You have missed that one in the same way that you have missed so much of this legislation. I take it from what you have said, then, that you did not research this and did not consider it and, therefore, something reasonably innovative like this has not been included in the bill.
Mr Henderson interjecting.
Ms CARNEY: You can yell all you like, you moron, but …
Mr CHAIRMAN: Order, order!
Ms CARNEY: Mr Chairman, I do not think I need to ask a question in relation to that any more because your answer speaks volumes. That concludes clause 6, Mr Chairman.
Clause 6 agreed to.
Clause 7:
Ms CARNEY: Minister, I would like to ask you some questions about proposed section 21D. Do you accept, as I said in my reply, that proposed section 21D(2), read in conjunction with section 21A(2A)(a) of the Evidence Act are at odds with one another?
Dr TOYNE: No.
Ms CARNEY: Do you accept, therefore, that it is a desirable outcome and it assists the administration of justice in the Northern Territory to have, on the one hand, part of an act that enables a court to refuse the availability of special measures, protective arrangements such as CCTV and so on, to vulnerable witnesses yet at the same time under proposed section 21D, that children ‘be given the benefit of special measures’?
Dr TOYNE: The short answer is no, I do not accept that. We have said quite clearly that this bill needs to balance the support and protection that we want to give to child victims and witnesses who are appearing in these hearings against the need for discretion to be exercised by both the court and the prosecution to get the best process going in the hearings to get an outcome.
It is quite appropriate, on one hand, to have principles stating what we are trying to achieve as a parliament by providing legislation to the courts as regards the interests of the child but, at the same time, provide within the court, the process of the court and prosecution, the necessary flexibility and discretion on how they adduce evidence and apply it to a particular hearing.
We do not believe there will always be a beneficial outcome if we were mandating pre-recording of evidence. There maybe cases where both a witness and a victim want to give evidence in the conventional way. It might be part of their process of closure that they are seeking to take part in the court hearing. You hear that many times from victims who have been through hearings, as to whether it has actually offered the closure that they were seeking: the sense that at least the community has addressed what happened to them and given them an outcome that will allow them to get on with their lives.
They are the areas that you simply should not be mandating in legislation. They are the areas that, whether you like it or not, courts have to deal with on a day-by-day basis. There have to be judgments made. That is why you have highly-trained people working in our courts; to make these sorts of judgments in individual cases. What legislation should be doing is defining the possibilities. In this case, the possibilities for effectively adducing evidence in a court from, in particular, child witnesses, and the options available to the court and prosecution to do that with a minimum of further harm or traumatisation of these children.
On the one hand, they are enshrined in the principles; on the other hand, they are enshrined in the area that deals with adducing evidence. There is no conflict between those two areas. I do not accept your proposition for a minute that there is.
Ms CARNEY: I am now referring to the proposed new section 21D(1) and (2). In (1) it says:
What are those special measures?
Dr TOYNE: What is your point? Do you have a question for me?
Ms CARNEY: My point is you have included a clause in legislation. I will read it again:
Dr TOYNE: I can see the clause. It is in front of me.
Ms CARNEY: What are those special measures?
Dr TOYNE: The bill is full of the special measures.
Ms Carney: Sorry? Speak up.
Dr TOYNE: Read it. The bill is full of special measures.
Ms CARNEY: What are they?
Members interjecting.
Mr CHAIRMAN: Order!
Ms Carney: So is everything. How interesting.
Mr Henderson: Honestly!
Ms CARNEY: Member for Wanguri, I think that you should keep your nose out of it.
Mr CHAIRMAN: Order! Member for Araluen, please stick to the bill.
Ms CARNEY: So that is why there is not a definition because the definition of ‘special measures’ would have been everything in that bill. This is just getting worse.
Mr Henderson: You are getting worse.
Mr CHAIRMAN: Order! Member for Wanguri.
Ms CARNEY: Okay, we will try this. That is subsection 1, that children be given the benefit of everything in the bill.
Mr Henderson: What don’t you like about this?
Mr CHAIRMAN: Order! Member for Wanguri.
Ms CARNEY: I ask the questions; you provide the answers. I will put it like this: (2)(a) says the court ‘must’:
On the one hand, there is an inconsistency because at the beginning of (2), it says the court has to have ‘regard’ to the following principles and then at (a) it says the court ‘must’ take particular measures.
Is it a principle or is it a direction? Must the court simply have regard to the contents of (a) or is it obliged to take such special measures? What happens if the court, for whatever reason, fails to take the measures referred to in (a)? Is there a sanction? Might it be an appeal point if the court does not take measures to limit to the greatest extent practical the distress and trauma suffered?
Dr TOYNE: Sometimes when you read something in plain English, you take it for what it actually says …
Mr Henderson: Pretty simple to me.
Ms Carney: And what do you think it is, member for Wanguri? Give us your view.
Mr CHAIRMAN: Order! Member for Araluen, the Attorney-General has the floor.
Dr TOYNE: Mr Chairman, there are quite a few pretty strong clues in the legislation that indicate what we are trying to do. The principles …
Ms Carney: I know what you are trying to do.
Mr CHAIRMAN: Order!
Dr TOYNE: You know most reasonable people, except for the member for Araluen would say that principles are guiding …
Ms Carney: Yes, correct.
Dr TOYNE: … constructions, if you like, if I can use another word, that simply establish in broad terms the type of outcomes we want from a justice process within the court.
Ms Carney: With you!
Dr TOYNE: With me, okay, good.
Ms Carney: That is a principle, yes.
Dr TOYNE: Now, who is establishing these principles? It is the intention of the Legislative Assembly.
Ms Carney: Yes, yes.
Dr TOYNE: Okay? So this is the parliament telling the courts that when you are dealing with the interests of young …
Mr Ah Kit: Stay with him, now.
Ms Carney: Good!
Dr TOYNE: … people who have been victimised, or might be feeling traumatised potentially by going through these sort of hearings, that we want the court to apply these special measures that are contained in this bill.
The second point is that we now have the principles spelt out. The principles simply say what the courts must and must not do. There are three ‘must not dos’ such as allow the child to be intimidated.
I have to presume that you would not have any inherent problem with protecting children from intimidation, that you would not have any inherent problem with seeing children treated with dignity, respect and compassion, that you would not have any inherent problem with trying to minimise the distress and trauma suffered by a child during the process of giving evidence. Those are principles. They are things that you cannot, by definition, enforce in the detail of how a court hearing is being conducted.
As you quite rightly pointed out in the second reading debate, how do you define to the point of enforcement whether intimidation has occurred or whether dignity has been compromised or whether respect has been or has not been shown to the child? That is what judges do. Judges have to evaluate the trial going on in their court and they have to make the decision as to whether any of those principles are being compromised.
That is what ‘must’ says; a judge presiding over a court must monitor those things, must make a judgment as a judge as to whether they feel that one or another of those principles have been compromised. It is not enforceable by its definition. It is something that requires the court to make a judgment.
There are many principles of law to which judges have to apply their discretion and expertise. The principles are the parliament telling the court the manner in which we want the interests of a child dealt. The judge will apply those principles to the detail of what is going on in a hearing. We cannot either define or enforce those simply because they are not definable down to the level of enforcement.
Ms CARNEY: I am very grateful for your answer. I am glad I asked the question …
Dr Toyne: I am pleased about that.
Ms CARNEY: … because the hole you have just dug is a big one. What you have said is that despite inclusion of the word ‘must’, the court ‘must’ do this, the child ‘must’ be treated with dignity, respect and compassion, and the child ‘must not’ be intimidated when giving evidence, you have just said that it cannot be enforced; it is not enforceable.
This is the most absurd stuff I have ever seen. Here are the principles. It is such a mess. I have asked him to take it back to the drawing board but because he is arrogant, he won’t, but, by God, he should.
Members interjecting.
Mr CHAIRMAN: Order! Enough cross-Chamber chatter.
Ms CARNEY: There is the inconsistency there. I am astounded you do not see it. I actually do not believe that you do not see it. I think you see it and you are thinking: ‘Oh dear’, but you have to march on regardless.
There is no sanction, despite saying in section 21D(2)(b) that the child must be treated with dignity, respect and compassion. According to you, it does not matter if they are not because it is not enforceable; it is just a principle. Why bother including it? A child must not be intimidated, you say no sanction, cannot be enforceable, so I do not know why it is there. It is very Labor to meddle with things. As I said, there are good intentions underlying this bill, but good intentions do not make for good law. Your answer is just so fascinating …
Mr Henderson: Who is going to sit in judgment apart from the judge? Are you going to sit in the courtroom? Unbelievable!
Ms CARNEY: What you know about the legal process, member for Wanguri, you could write on the back of a match box!
Mr CHAIRMAN: Order, order! Member for Araluen, back to the section.
Ms CARNEY: The member for Wanguri, Mr Chairman, is being very provocative.
Mr CHAIRMAN: Yes. I have asked for order from the member for Wanguri. Keep to the clause and to the issues.
Ms CARNEY: All right. I did have a number of other questions in relation to these sections. Basically, I raised them in my reply, but your answer is so very extraordinary I do not think I need to bother with the questions I had. Just bear with me. I will press this one.
Attorney-General, can you advise whether independent counsel has considered the bill? If so, were you provided with written advice on it? If so, would you table that advice?
Dr TOYNE: We seek advice from independent counsel when our own lawyers in the policy section of the Department of Justice and Parliamentary Counsel indicate that there is a need to do so, if there is a technical issue that comes up and we feel advice would be useful, but that did not occur in this case. No, we have not sought independent advice on the provisions in this bill. We believe it is well thought out and is very good legislation.
Ms Carney: Oh, you do?
Dr TOYNE: So, if you feel differently, I am very sorry.
Ms CARNEY: I will shortly be moving to another clause, but getting back briefly to subsection 2 and your answer, which I found astounding, despite the use of the word ‘must’ do this, ‘must’ do that and so on, that it is all not enforceable so therefore it is sort of voluntary …
Dr TOYNE: No, no. Do not verbal me.
Ms CARNEY: Well, okay, you explain it for yourself then.
Mr CHAIRMAN: Order! Stick to the clause, please.
Ms CARNEY: Well, that is what you said.
Dr TOYNE: No, no. I did not say that.
Mr CHAIRMAN: Order! Let us stick to the clause, please.
Ms CARNEY: Why is it, then, that despite the word ‘must’ occurring in subsections (a), (b) and (c) the word ‘should’ surfaces in subsection (d), and that is:
Why was it ‘must’ in relation to everything else, and ‘should’ in relation to the speed with which the proceedings are undertaken?
Dr TOYNE: Oh, dear.
Ms CARNEY: Just a sensible answer would be good, thanks.
Mr CHAIRMAN: Order!
Dr TOYNE: Just to go back, I have been trying to think what your problem is …
Ms Carney: Good law.
Dr TOYNE: … and some of them I probably could not do anything about. I am taking your argument one step further: our entire court system, its purpose and the principle on which it stands, is to deliver justice. Now, are you going to extend your argument to say if you establish a principle like we establish our courts to deliver justice to the community, what happens when someone feels that justice has not been delivered? Do you then lock up the judge?
Courts operate on principles in many areas, and it is a matter, within the court process itself, of the judge being the ultimate arbiter of the appropriateness of what goes on in a hearing, applying the principles that we provide, as the will of the Territory community, through its parliament. The judge will place constraints on what is said and done in the court hearing. If someone chooses to contravene those beyond what the judge has said, there are contempt provisions that can be applied. So there are many checks and balances for the way in which these principles would be applied in a hearing.
The point you were making about the use of ‘should’ is a matter of emphasis. Speedy justice is desirable, particularly in cases that this bill contemplates. However, there are other considerations in the speed and timing of these hearings. You would not want to see a miscarriage of justice because a trial has been pushed through too quickly, evidence has not been finalised, and perhaps an offender might go free because of a flawed process.
In drafting this, we felt that it was appropriate in this case to downgrade the emphasis, particularly as we have provisions in the bill which do give the court the ability to extend the time for the beginning of a trial, at its discretion, when there is some complexity in the evidence. For example, with a case that might involve multiple offences or some real difficulty in the forensic evidence that had to be assembled. We felt that ‘should’ was about the level of urgency or priority that should be included in the principles we are putting to the court.
Mr DUNHAM: I am interested in this matter, Attorney-General. From what I understand, there are an enormous number of principles used to dispense justice within the court system and, from time to time, parliament alerts the court to principles that we believe to be the will of the people, if I understand you. Can I ask you, then, in the absence of this parliament telling the courts that a child must be treated with dignity, respect and compassion, whether those elements were absent from the justice system?
Dr TOYNE: Sorry, I was taking advice on the first part of what you are saying.
Mr DUNHAM: We are now requiring courts to treat children with dignity, respect and compassion. Can I ask you if, prior to this legislation, those elements were absent from the justice process?
Dr TOYNE: No, there are principles of the interests of children already in existence, for example, in the federal Family Law Act. What this legislation does is spell out, specifically in this area of the operation of our own courts, the need for those principles to be applied.
Not all areas of legislation have to spell out every principle that might potentially be applied to a court hearing. What we have said by including these principles in the bill is that we want to draw the attention of the courts to the fact that in the community, there is a high level of concern that these witnesses are given particular treatment.
When I introduced this bill with the second reading speech, I indicated a case in the Alice Springs Supreme Court where a child witness was cross-examined for two days by a defence lawyer in a very aggressive style. That was part of the history that triggered the provisions in the bill. Under these provisions and the provision regarding harassment and other features of cross-examination, with this bill in place, a judge will have every empowerment to stop that process.
Mr DUNHAM: As I understand you, previously the courts were unable to treat children with dignity, respect and compassion and, now that you have pointed this out to them, the judges are able to rely on this legislation to, in fact, treat children with dignity, respect and compassion whereas, hitherto, they could not? Is that what you are telling us?
Dr TOYNE: That is not true. The courts are there to provide justice. There are many judgments made by judges about the appropriateness of what goes on in court hearings. What is new about this is that the Legislative Assembly is saying specifically in the case of child witnesses that the court must particularly pay attention in principle to these aspects of the treatment of a child who is going through court hearings. That is new. However, as a general principle of decency and dispensation of justice, judges will often rule out over-aggressive behaviour in a court, and have for many years.
Mr DUNHAM: You would hope so. Do you believe it is important then for this parliament to mandate certain principles to judges so their considerations and decisions are reflective of community attitude?
Mr KIELY: A point of order, Mr Chairman. This line of questioning is bordering on vexatious. We are here dealing with …
Mr CHAIRMAN: There is no point of order. .
Dr TOYNE: Thank you, Mr Chairman. I have already explained that principles by their nature cannot be enforced. By their nature, they are guidelines. They are a broad expectation of the type of behaviour that the judge will be asked to dictate to a court. Ultimately, it gets down to a matter of judgment as to whether a principle has been contravened or not by their nature. One person’s intimidation may not be another person’s; or one person’s show of respect may not be another person’s. It ultimately becomes the professional judgment of the judiciary that will give these principles life in an individual court case.
Mr DUNHAM: The example that you used of a child being interrogated for two days, with this legislation in place would not have happened, whereas before, the judge could not rely on statutes of this type?
Dr TOYNE: The reason it would not happen following the passage of this bill is because there are other sections in the bill before us that do deal with the nature of cross-examination, which specifically say that you cannot harass or intimidate a child witness.
Mr CHAIRMAN: Are we still dealing with clause 7?
Ms CARNEY: I think so, Mr Chairman. Just one moment. Oh, yes. Has the Criminal Lawyers Association of the Northern Territory been consulted about this bill specifically? I know what happened and you had better be honest.
Dr TOYNE: My advice is that this has been widely circulated since its introduction in the last sittings, particularly to the members of the DPP, many of whom belong to that organisation.
Ms CARNEY: You are aware, though, of the organisation, the Criminal Lawyers Association of the Northern Territory?
Dr TOYNE: Yes.
Ms CARNEY: Was it sent to them with your second reading speech?
Dr TOYNE: My advice is that they are aware of it.
Ms CARNEY: They were aware of it, but it was not specifically provided to them? I suggest that had that organisation been made aware of the details of this bill, they would have contacted you about it. I also note with great interest that you call yourself the great consulters of the Northern Territory and yet are very selective about those you consult.
Still on clause 7, the same section. Attorney-General, notwithstanding the non-enforceability of the guiding principles for which there is no sanction, and notwithstanding the use of the word ‘must’ in section 21D(2), is it the case that you would consider extending those sections to other legislation so that it would include other witnesses or victims, for example, women victims of domestic violence or women who have been the victims of other sexual assaults? If not, why not?
Dr TOYNE: We are reviewing the Domestic Violence Act at the moment. There is no reason why we cannot look at this sort of provision in other legislation. It sounds like you like it enough to see it in other acts.
Ms CARNEY: Don’t be cheeky. It is peculiar legislation, this section. My point is that you clearly have the view that children should be treated with dignity, respect and compassion, that they are not to be intimidated and that the court should take various measures to limit that.
We are at one, but I say that it is drafted in such a dreadful manner based on, presumably, not very good instructions, and what it leads to is a mess because there are the principles and yet, by use of the word ‘must’, it is a direction that creates an obligation. You ‘must’ do something as opposed to you ‘should’ do something. So the words are quite different.
Putting all that to one side, is it the case that women victims of sexual assaults are not treated with dignity, respect and compassion in cases in which they are involved?
Dr TOYNE: On that logic, every time we introduce legislation, you would have to then re-review every other item of legislation to make sure that any new principle is transported in. In the drafting of this section, it is very much in accord with the form of similar provisions around the country.
Ms Carney: No, it isn’t.
Dr TOYNE: If you are worried about it, go on a whistle-stop tour. There are seven Attorneys-General around the country. Go and see them and tell them how dreadful you think this structuring of the principles in this legislation is and see how much support you have. This mirrors similar provisions right around the country.
Ms CARNEY: You are just being selective because when it gets a bit sticky, you say: ‘Oh, well, that is everywhere else’ and I do not think you know what the other legislation is, anyway but then, earlier on in relation to another part when I talked about Western Australia, your friends over there coming up with, quite rightly in my view, a $100 000 penalty or imprisonment for 12 months or both for the improper use of a video from a sexual assault, you say: ‘No, we do not need to do that in the Territory’. Again, your arguments are not consistent. They are not satisfying and you are making an ass of the law by coming up with stuff like that.
To the extent that I understand your answer, I will plough on. The fact that I have raised it and you say: ‘We might think about putting it in other legislation’ illustrates, doesn’t it, that this bill has not been thoroughly thought through? Do you agree with that?
Mr Henderson: No.
Ms Lawrie: No.
Mr Kiely: No.
Ms CARNEY: Attorney-General, I am sure you can speak for yourself. Do you agree with that?
Dr TOYNE: Sorry?
Ms CARNEY: Do you agree? Did you hear my question?
Mr Henderson: Why would he agree that the bill has not been thoroughly thought through?
Ms CARNEY: Well, Mr Chairman.
Mr CHAIRMAN: Order! Attorney-General, either answer the question or do not answer the question. He has the choice.
Ms CARNEY: For Hansard purposes, I think he should.
Mr CHAIRMAN: No, the Attorney-General does not have to answer a question.
Ms CARNEY: All right, I will take that as – so he is clearly not answering that question, even though his little friends want him to. I have finished with that clause, Mr Chairman.
Clause 7 agreed to.
Clauses 8 to 10, by leave, taken together and agreed to.
Clause 11:
Ms CARNEY: I will not ask the questions I had in relation to clause 11.
Mr CHAIRMAN: Member for Drysdale, do you have a question?
Mr DUNHAM: I have two questions, Attorney-General. I wonder if you could tell me whether this clause also deals with perpetrators who are under 18?
Dr TOYNE: It is specified as any person who is charged with an indictable offence. That takes in every perpetrator or alleged perpetrator; it does not put a limit on the age.
Mr DUNHAM: Yes. I am talking about the evidence of a child, and I am asking you if that includes the evidence of a child who is the perpetrator?
Dr TOYNE: I am advised, no, it does not because the perpetrators do not necessarily have to give evidence at all.
Mr DUNHAM: So, in the unlikely event that you have a silent perpetrator, it does not apply. In the event that you have a perpetrator who has to give evidence, and who is under the age of 18, does this clause apply?
Dr TOYNE: Yes, I am advised that this is applicable to the committal stage of a matter. It does not apply to the full trial, but the perpetrator would not have these provisions available in a committal.
Mr DUNHAM: I suggest that you might need to re-word your bill then, because the way I read it, a sex offender who is under age 18 has the same principles in relation to a child witness as the victim. There are two questions. First, can you tell me how many sex offenders have been charged in the Northern Territory under the age of 18 in the last year? Can you tell me whether, in a future year, about that number of people will be able to use the advantages bestowed under this act as child witnesses?
Dr TOYNE: Why would I have that information here?
Mr DUNHAM: You are drafting a bill. I assume you know what its impact is.
Dr TOYNE: I do not have that information. I will take it on notice.
Mr DUNHAM: So, firmly, for the advice of lawyers, the courts and others, a perpetrator of a sexual offence who is under 18 is incapable of using the child witness provisions of this act? Do I understand you correctly?
Dr TOYNE: During the committal hearing.
Mr DUNHAM: Right. My second question goes to the issue of vulnerability. In relation to earlier legislation through this House, there was some discussion about the vulnerability of children, whether they be 18 or 16, and there was some strong argument put that children were vulnerable up to age 18 in relation to sexual matters. It was the case, put by your government, that children over age 16 had certain mental capabilities that rendered them different. I wonder why then in this act you have used 18 as the definition for a child.
Dr TOYNE: The use of 18 years as the threshold for coverage of these provisions is because of the definitions under the child protection provisions within the Territory. We wanted to align these supportive arrangements in the courts with the child protection provisions.
Mr DUNHAM: I applaud that move, Attorney-General. I wonder whether you, like me, believe there is an element of vulnerability about young people under age 18. You do not? Well, I do. He signified ‘no’ by way of head shaking.
Dr TOYNE: No, I was just talking to my advisors, so do not verbal me.
There are many age thresholds in our legislation: when you can vote, when you can drive a car, the age of consent, and the age at which we want to provide protection. The child pornography legislation we will introduce in these sittings is set at 18.
We felt that the most appropriate age to establish these support arrangements would be those used in the child protection provisions. That is why we have gone to that. It is not based on a judgment about the relative vulnerability of a 16-year-old or 18-year-old. We are simply aligning it to the legislative environment in which it will exist.
Mr DUNHAM: So it is a legislative convenience rather than any presumption on your part about the vulnerability of people under the age of 18, is that correct?
Dr TOYNE: I believe I have made the point as to how we reached that decision. There is not much more to be said about it.
Clause 11 agreed to.
Clauses 12 to 16, by leave, taken together and agreed to.
Clause 17:
Ms CARNEY: Attorney-General, you would be aware that clause 17 deals with the time limits prescribed for prosecutions in the bill. Various time limits are imposed. What sort of representations and by whom have been made to you expressing concerns about these time limits?
Dr TOYNE: I can advise that I have had no representations directly to me. However, the development of this legislation involved a discourse with the Director of Public Prosecutions. As part of dealing with any concern about the impact of this provision on the outcomes of court hearings we, jointly with the DPP, examined the outcomes of the Victorian legislation, which has been in force now for several years. Upon seeing the outcomes of the Victorian experience, the DPP was comfortable with the provisions.
Ms CARNEY: I am sorry. Please do not take this the wrong way. You faded a bit so I may not have heard you correctly. Is it the case that the DPP has advised you or your office that they are happy with the time limits? Yes or no?
Dr TOYNE: I have already stated there was no direct - it would be inappropriate, in fact, for the Director of Public Prosecutions because of his independent status to be directly negotiating with me on legislation that would be going into the court system. All the discourse occurred between the policy section of Department of Justice and the DPP and his staff, and these matters were worked through between the two and to their satisfaction.
Ms CARNEY: I suggest that there remains in the minds of many lawyers in the Territory, and it is not for me to name them, concerns about the time limits. Clearly, you do not know about them but others do. It is unfortunate that you as Attorney-General do not know that there is a widely held view that the time limits are unreasonable and unrealistic. Again, I am astounded that as Attorney-General you do not know that.
Attorney-General, what do you say in relation to an example I gave this morning where, for instance, forensic evidence might not be available within the time limit that you have prescribed? How do you envisage it working so the DPP cannot be in breach of the act? What happens if forensic evidence is not available or has not become available through forensic experts within the three month period?
Dr TOYNE: The provision in the bill is that the court has been given the ability to extend it. It merely has to consider the reasons put to it. The provisions are in 3A(4) and (5) dealing with extensions say the court can not only grant an extension not exceeding three months of the period, but can also grant more than one extension as indicated in (4).
That is the very reason we included the discretion, to provide for the variety of circumstances in which cases are prepared to go to court. Similar provisions exist in the Victorian arrangements. The combination of a strong signal or expectation of three months to the beginning of the trial and the flexibility provided to the court to vary that if circumstances dictate are resulting in some very good outcomes in Victoria. They are finding that not only can people within the justice system live with those provisions, but they are getting a much better clearance of these types of cases. You will appreciate that any long delay, and some of the delays are extraordinarily long, in these types of cases are very much to the detriment of both the victim and the justice system.
Ms CARNEY: You have referred to the extensions being available in the proposed new section. Did I hear you correctly? You did refer to the extensions, the ability to seek an extension?
Dr TOYNE: There is more than one extension available to the court.
Ms CARNEY: Okay, yes. Why, then, in your media releases of 5 April – again, Mr Chairman, the member for Wanguri can sigh and carry on, but some of us are taking this debate very seriously unlike he is. Could you direct him to mind his manners because I might do something unparliamentary?
Members interjecting.
Mr CHAIRMAN: Order!
Ms CARNEY: Why did you include in your media releases of 5 and 18 August, the following:
Why were you not honest and say: ‘time limits will be included, but there will also be the ability to seek extensions.’?
Dr TOYNE: What are we going to do with media releases on that logic? Do we issue the entire bill as a media release? I have seen a few of your media releases, and I tell you what: there are some omissions in those as well.
The new factor in this legislation is that we are trying to limit the time used in preparation for these trials. That is the new element in this legislation. The courts have always had discretion to extend time to prepare for hearings, so (4) and (5) simply confirm in a structured way what has gone on in the operation of the courts for many years.
If you want to now mandate what we put in our media releases, I would love yours to contain all the facts as well. It would be very interesting; a whole new look for yours.
Ms CARNEY: That was a pathetic response.
Mr CHAIRMAN: Member for Araluen!
Ms CARNEY: I take it that you do not accept that you have spun and spun this bill. There is evidence of it everywhere, even here where you want media organisations in the Northern Territory to pick up this release and say: ‘That looks great, doesn’t it?’ You want people like me to have briefings with your office and walk out upbeat and thinking this is great. You want people like Sue Lowry from Victims of Crime Northern Territory – I assume you gave her the same sort of briefing as I was given - she also would have walked out of the door with a bit of a spring in her step.
However, after the bill was introduced it became abundantly clear that it had spun out of control and that you were less than honest in the propaganda that you disseminated prior to its introduction. Why weren’t you honest there and why weren’t you honest in your second reading speech? Do you have a problem with honesty, Attorney-General?
Mr HENDERSON: A point of order, Mr Chairman!
Mr CHAIRMAN: Yes. Member for Araluen, I think that needs withdrawing, please.
Ms CARNEY: I will, Mr Chairman, thank you.
Mr CHAIRMAN: Thank you, that is all.
Ms CARNEY: I have another question.
Mr CHAIRMAN: Give a chance to the Attorney-General, please, to answer …
Ms CARNEY: To answer the question I just withdrew?
Mr CHAIRMAN: The Attorney-General has the floor.
Dr TOYNE: I would like to say something. Mr Chairman, I am trying to ignore the offensiveness coming from over there, but I believe that if you asked out in the community, I do not think you would find too many people who are saying that I have misled anyone on this or any other bill.
We should get back to the legislation before us. I would like to hear some points on the time limit on prosecutions, proposed section 3A.
Ms CARNEY: Probably happily for you, because you are pretty good at ducking and weaving, I have a last question in relation to this clause and others. That is: will you delay the passing of this bill until next week to give your advisors the opportunity to consider the information I have provided, to consult with relevant stakeholders, albeit it in a rushed way, because that has not happened, and I am talking about victims of crime who have not been told all of the details, including the Criminal Lawyers Association of the Northern Territory? There are plenty of others, they are just a few. Will you consider delaying this until next week?
Dr TOYNE: Mr Chairman, the member has had the benefit of some three hours of debate, maybe even longer because we started before 11 o’clock this morning, to persuade me that somewhere within this bill there is a fatal flaw or a flaw of any type. I have simply not been persuaded that such flaws exist.
In fact, I will not be delaying the passage of this bill even for 10 milliseconds. We are getting this out and we going to start using it. History will judge us all. If the provisions are as terrible as you say they are, we will have an amazing problem to deal with, politically and for me as a legislator along with my personal reputation, in amending legislation. I can certainly say this: after introducing 87 items of legislation through the parliament, this will be number 88, not many have come back to this House for revision. In fact, I could probably count them on less than one hand.
I am confident, as always, that we have expert people within the agency doing the work of developing this legislation. My officers, as always, spent many hours working through all the detail, testing the detail of this legislation. I am confident that this is a good bill, has good provisions and will do an enormous amount of benefit for the people whom we set out to help when we started developing this legislation.
When we come in here and make our maiden speeches, they often come from the heart. One of the issues that I freely acknowledge you raised in here three years ago is very much at the centre of this bill today. I cannot believe you want to hold up the changes that this will bring to court hearings, and I am simply not prepared to hold them up on the arguments you have proposed today. I am not convinced by your arguments.
Clause 17 agreed to.
Clause 18 agreed to.
Bill reported; report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a third time.
Mr BURKE (Brennan): Madam Speaker, I listened with interest to the debate this afternoon which became reasonably inflamed at times because people have different views as to the points that were being made in relation to this legislation.
Whilst we were in the committee stages of the bill, a media release issued by the Attorney-General was drawn to my attention. I assume he takes responsibility for the release. The contact is Richard O’Leary.
I find the release particularly disturbing, and I give the Attorney-General the opportunity to clarify his comments in the third reading. In clarification, I hope that the Attorney-General will disavow himself of the release and have the gumption to apologise for the comments contained within it.
I imagine that, notwithstanding the fact that the Attorney-General and the government might take issue with some of the points the shadow Attorney-General raised in relation to this legislation, they may not agree with the points that she has made, they may be very confident that the legislation fulfills the objectives that they have set themselves, it is particularly disturbing that the Attorney-General would issue a media release whilst this bill was still in its passage stages. The bill had not even been passed. The purpose of this House is to persuade, in argument, as to the merit or otherwise of the legislation. The Attorney-General supposedly prides himself in being one who is considerate and interested in the information that is being put to him. That is one of the stands that he takes publicly and prides himself on his integrity in that regard.
No one in this House could suggest for a moment that the shadow Attorney-General does not have a deep, long and abiding interest in the welfare of vulnerable children. No one could suggest that. I ask the Attorney-General in that context whether he would bear in mind the context of Standing Order 62 which says, in part:
Whilst this bill was in its passage, before it even passed, whilst the shadow Attorney-General was properly exercising her responsibility to question aspects of the bill, he would issue a media release that says, first:
This legislation. He went on to point out quite specifically:
Mr HENDERSON: A point of order, Madam Speaker!
Mr BURKE: I am in the third reading.
Mr HENDERSON: The third reading debate is supposed to be confined, very deliberately, to the content of the bill. What we have here is …
Mr Dunham: You are an idiot! What do you think this is?
Mr KIELY: A point of order, Madam Speaker! I ask the member for Drysdale to withdraw.
Madam SPEAKER: Order!
Mr HENDERSON: What we have here is the member for Brennan debating the content of a media release …
Mr Dunham: Which describes, purportedly, the content of the bill.
Mr HENDERSON: Madam Speaker, I urge you to get him to get back to the point before us, which is the bill.
Madam SPEAKER: The subject matter of the media release is the bill.
Mr BURKE: I say with the utmost seriousness, and I certainly am not playing politics. I am appealing to the Attorney-General in the context of whether he was aware of what these people were doing upstairs when they issued the media release, and I am appealing to his integrity.
I will go on. It says the shadow Attorney-General opposes:
Directly and by suggestion, not innuendo, the Attorney-General is suggesting that the shadow Attorney-General protects paedophiles directly in that media release. To play politics with the shadow Attorney-General, you are suggesting in the opening comments, at a time when Australians are alarmed about paedophilia, that the shadow Attorney-General, in her debate in this House, is moving to protect paedophiles in Australia by opposing the measures of this legislation. That is disgraceful, Attorney-General, absolutely disgraceful!
You can say that you are disappointed that she does not support the legislation, that she has problems with it and you do not agree with the problems that she has with it. However, you know and everyone knows that nothing that is said in this House can stop the government’s determination from passing this bill today. Therefore, there is no possibility of any suggestion that anything the shadow Attorney-General might say could possibly stop the implementation of this bill at the time the government wants it unless the government itself decides to hold this bill up.
What you have done is suggested that the shadow Attorney-General favours paedophiles, the actions of sexual predators against children and, therefore, she opposes this bill and the measures in this bill in order to act against those sorts of actions. That is plain, straight-out wrong.
I ask the Attorney-General to have the gumption to stand up here and say that it was not his intention to make that suggestion in the media release. This is damning to a person. It is not the sort of thing with which you play politics.
The aim of the Attorney-General is clearly to get coverage in the paper tomorrow that says that the shadow Attorney-General has opposed this legislation and aims to ensure that children are not safeguarded. That is just wrong! It is just wrong and it makes a mockery of this parliament, the debate in this House and of this particular individual who anyone, surely, will accept, whether you like the way she argues in this House or not, whether you agree with the points she makes or not, that she has a deep and strong interest in the welfare of children. To suggest that she does not in a media release and to try to get a headline to achieve that is an absolute disgrace and I ask the Attorney-General to apologise.
Mr DUNHAM (Drysdale): Madam Speaker, I too was offended on two counts. The first is that the House is yet to make its decision. Okay, you are the government and you have the numbers. It is one issue to talk about assuming that things will go through, they will be unscathed and they won’t be argued. This House is a parliament. It is a place where we talk, it is a place of debate and we should debate loudly. Often we hear the rejoinder from the other side, ‘I am going to write to your electorate, I am going to put out a media release’ or whatever. On nearly all matters we debate, that is probably reasonable politics. This I think to be defamatory and actionable. It not only presumes that parliament was going to pass this by virtue of the numbers, but it presumed it was so enlightened, such perfect legislation that it was incapable of being debated unless someone had nefarious motives.
The first time I met the member for Araluen, within the first two sentences she used words that we cannot use in this parliament, and it was about child abuse. She is a vigorous advocate on matters relating to the protection of children. I know it, because I was the previous minister for the Child Welfare Act. I know that she put in an enormous amount of work, of her own time, into advising me of some of the short comings of that act. I know her bona fides in this area as someone who has stood in the court and argued cases. None of us in this room have done that. So for such a proficient practitioner to come to this place and give us the benefit of her enormous, vast wisdom and experience, it should have been taken by the Attorney-General as something that was constructive criticism.
It should have been taken from him as something from a practitioner who knew the pitfalls of presenting matters like this in court. While she was able to say a good prosecutor might think this or a good defence lawyer might think this, I do not think she was couching it in terms of leaving this place and being able to go out there and use these loop holes to persecute children because I know that not to be the case.
In the first place, I am mightily offended at the arrogance, the sheer arrogance, of assuming at lunchtime that we had perfect legislation that would go through unamended and would be ticked off during the day because there are sufficient numbers on that side.
Mr Kiely: There was no amendment offered.
Mr DUNHAM: You be quiet!
Mr Kiely: There was no amendment offered.
Madam SPEAKER: Member for Sanderson, order.
Mr DUNHAM: While I am on my feet, I wonder if you could dress appropriately.
Madam SPEAKER: Order!
Mr DUNHAM: We have all put on weight in here, but if you can’t do that button up, go and get a bigger shirt.
Madam SPEAKER: Member for Drysdale, withdraw those personal remarks.
Mr DUNHAM: Okay, leave it unbuttoned.
Madam SPEAKER: Just withdraw!
Ms Lawrie: You are a disgrace.
Mr DUNHAM: I may well be a disgrace, but I am very upset about this matter.
Madam SPEAKER: Member for Drysdale, I did ask you to withdraw.
Mr DUNHAM: I withdraw. I withdraw. The second matter is not just the arrogant assumption about the processes of this parliament. The other matter is the savage attack on the integrity of my colleague on a matter that is passionately and transparently held by her. I suggest that this media release is something that the Attorney-General should withdraw during this third reading.
There are a few matters over which we play politics. One of them is not child abuse. One of them is not child abuse. It would be unthinkable to believe that anyone in this House opposed any measure that would afford protection to our children. It does not fly from there that everything the Attorney-General introduces in this House is so perfect that it is beyond any debate or constructive criticism. Were that the case, the Attorney-General would have been able to answer several questions that he could not answer without seeking sustained and prolonged advice from his advisors.
It is evident to everyone in this House that some of the questions put were very thoughtful, insightful questions. Indeed, on the answer he gave to my question, I believe him to be wrong. Nonetheless, he has bravely put on the Parliamentary Record what he thinks this act will achieve and he may well be right. I don’t think he is. I am not a lawyer. Let us see whether the act is as unflawed as he thinks.
I suggest in the interest of not starting a range war on matters relating to child abuse, paedophilia and the personal proclivities of members of this House regarding such matters, that the Attorney-General do the right thing and withdraw this media release immediately.
Mr HENDERSON (Leader of Government Business): Madam Speaker, if there was one item of legislation that should have had the total support of all 25 members of the House, it would have been this bill. None of us would deny that we have to improve protection of children giving evidence in our courts in order to get to the truth and if guilt is found, the appropriate penalty be applied.
We have a process and my colleague the Attorney-General, from day one, has offered a consultative approach to dealing with legislation. This legislation was introduced during the last sittings. My understanding is that the shadow Attorney-General was given a full and detailed briefing and left that briefing extremely happy. She has subsequently had time to look at the bill in detail.
In a spirit of cooperation to get this legislation right in a non-controversial way, I would have thought that there would have been a phone call from the shadow Attorney-General to the Attorney-General’s office saying: ‘I have very real concerns with this. We need to discuss it. I propose the legislation needs to be amended or scrapped altogether and we start again’. No such calls were made, let alone received. The first we knew that this legislation was so hopeless and devoid of any capacity of lifting the bar to protect children as vulnerable witnesses in the legal system was today.
We have then gone through a three or four hour process. I know the member for Araluen is passionate about the issue, but the way debate has ensued today has been vicious and venomous and I would almost say contemptuous of the process. On such a serious issue, you would have thought that had she approached my colleague the Attorney-General with very considered problems with this, we obviously would have had a look at it. I know the Attorney-General and have known him for many years. He is passionate about this issue and he would have taken those concerns on board and considered them thoroughly.
I do not know why the wheels have fallen off today on a bill that should have been treated with seriousness. Some of the questioning today was venomous and fatuous. I am not a lawyer either, but I can read and understand plain English, and some of today’s questioning was fatuous.
I do not know what media release the member for Araluen issued at lunchtime, but she was all over the radio airwaves saying that this was hopeless legislation, that it was a chook’s breakfast and needed to be pulled. That is pretty offensive as well, not only to my colleague the Attorney-General, it is offensive to the legal officers in the Department of Justice - the policy people, the legal people, the drafting people in Parliamentary Counsel - who have worked for a long time to pull this legislation together.
For the member for Araluen to come in here and display the petulance that she has today denies belief. This should have gone through as great legislation that will protect our kids through the legal system. I do not know what has happened, apart from pure politics, between the day that the member for Araluen received the briefing and her performance today, but people who live in glass houses should not throw stones. The member for Araluen needs to look at her performance and behaviour in her conduct of this debate because I can guarantee that my colleague the Attorney-General, had issues been raised with him in the intervening time, would have taken them and considered them seriously and he would have come into the House today with a position on it.
If the issues were serious, where are the amendments? We have not seen one amendment on the floor of this parliament. Nothing circulated. If she wanted to make this bill better, amendments should have been drafted and circulated.
Madam Speaker, I stand in total support of my colleague on this. This is good legislation and I commend it to the House.
Ms CARNEY (Araluen): Thank you, Madam Speaker. How long do I have?
Madam SPEAKER: Five minutes.
Ms CARNEY: There are three very quick things I would like to deal with. One is that in relation to the bill itself, as I have said, it has good intentions. We are at one insofar as the intentions of this bill are concerned. However, good intentions do not make for good law.
It is very obvious that various provisions are not properly thought through. There is no need for me to rehash all of the arguments, but I do believe I have put some detailed and very thoughtful analysis into this bill.
It is very disappointing that the Attorney-General and his colleagues, some of whom do not know anything about it anyway, have the gumption to say: ‘No, Carney, you do not know what you are talking about’. Well, I do, and I will stand by every single thing I have said in this parliament today. When others are out there experiencing difficulties with your bill, the likes of which you clearly cannot imagine, I will remind them that it was your bill, Attorney-General.
In relation to the comments about why did she not come and tell us? You blokes have changed. Listen to this. You blokes have changed, and accordingly, I am changing with you. You used to listen. You used to be a listener.
Ms Martin: Even Terry could get an amendment to the nuclear waste bill!
Madam SPEAKER: Order!
Ms CARNEY: It has changed. If I thought that you would listen, would I have come to you? Absolutely. But you have all become such an arrogant, pathetic, petty bunch, why would I bother? You conduct yourselves in such an unprincipled way, and I will come to the media release shortly, you do conduct yourselves …
Members interjecting.
Ms CARNEY: You, the whole lot of you on the 5th floor conduct yourselves in an appalling way!
Madam SPEAKER: Member for Araluen, get back to the bill please.
Ms CARNEY: Madam Speaker, when bright lights like the member for Wanguri stand up and say: ‘She should have come to us’, I say if I thought I had a shot, I would have. But I do not have a shot, so what I have to do is give it my very best shot on the floor of the parliament, the floor of the parliament, incidentally, that is so important to this rabble on the other side.
They had a policy before the last election vowing that they are not going to abuse parliament, they understand what parliamentary democracy is all about and they love it. Well, they get very antsy indeed, do they not, Madam Speaker, when we exercise, as we do as members of parliament, our right to come in here and debate legislation? I thought that was what this was all about. Are we not parliamentarians in a parliament talking about legislation? Tell me if there is something I have missed. Tell me if we are not to have debate about legislation, tell me if detailed, thorough analysis of legislation is something that the NT Branch of the Australian Labor Party does not want in this parliament because if you want to be up-front about that, well, we will have to consider our position. If the day has come where you people do not want us to exercise our right in this parliament, then it is a very sad day for the Northern Territory, indeed, a very sad day.
In relation to the media release, and I will come to the one more offensive part than others in a minute, it is typical of the releases from the Attorney-General’s office and typifies the way this man has changed since coming to office. I used to have a lot of respect for the Attorney-General. No longer. His conduct and that of others on the 5th floor, some of which I will not detail publicly, has been nothing short of disgraceful. In any event, the media release says that we supported the bill. I said in my media release: ‘Often the devil is in the detail’. When we got the detail, did we find a devil? Absolutely, we did! We found that the spin, the propaganda you threw out to Northern Territorians did not resemble what was in the bill.
What do you think I am going to do when I see that? Do you think I am just going to stand here and put up with it? I do not think so. I said at the beginning that my life was too short for me to simply nod my head to bills that are a dog’s breakfast. I will never do it. I have never done it on any legislation, as the Attorney-General well knows, and today is no exception. In relation to the media release …
Ms Martin: Fifteen seconds.
Ms CARNEY: I know that I have 10 seconds left. I do expect an apology, Attorney-General. I will be taking the matter further and I will leave you to guess what that might be in the event that you do not apologise. Politics is politics, but this is garbage.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I have always accepted that the member for Araluen has a genuine commitment to child protection in general. What today has illustrated is she does not know how to turn it to maximum effect through the parliamentary process. I made it very clear, right from day one - in fact, it is the whole purpose of the structuring of the legislative process in this House - that there is the opportunity between the tabling of a bill and its ultimate debate to have a dialogue about the provisions.
You can claim that it is no longer worth anyone’s while to come and talk to me. I resent that. I have always prided myself on the fact that if someone comes up with a genuine concern and ideas or suggestions that will improve the outcome for Northern Territorians in whatever I have responsibility for, I have consistently and without fail given a serious response to that.
Let me reiterate the process that I wanted to establish and have established in this House. When a bill is tabled, there is ample opportunity to come and talk about amendments if there is merit in the suggestion. I will always get work done through the department on any suggested amendment that I feel could add value to a bill. That offer was made on day one; it still stands.
Equally, I have said that there is no prospect of walking into parliament on the day of debate on a bill and proposing amendments of a technical nature without the ability to have their merit examined by the agency. It is simply not good law-making; it is making technical provisions on the run without recourse to the expert advice that would normally apply to the development of legislation. We cannot afford to make laws in the Northern Territory on that basis.
I am reiterating today the process, which is very clear, for members. I welcome any member, whether it is the opposition or Independents or members of our own Caucus, if they value-add to legislation that has been presented to this House.
I do not believe that I have changed or that there is any less opportunity to do that today than there was three years ago or anywhere in between. I have demonstrated it on enough occasions now that I believe I can point to my record on that.
In respect of the media release, I wish the members for Brennan and Drysdale had applied the same passion about a debate still in progress in the House to their own colleague. I was reacting to the member for Araluen racing as fast as her little legs could take her to the nearest media outlet to talk about the debate. The media release I issued said I found it absolutely bizarre that the member, on one hand, can have on a web site, comments welcoming the bill and its contents, comments she had made in other forums as well at the time, and suddenly has this trenchant opposition to the bill.
I am not and did not say that she does not have the right to come in here and take a position on it. What really disappoints me about the member was that in the two months that intervened between the time that she formed an initial opinion on the bill and the time that we came to debate here, two months in which the detail of the bill was available to her, not one contact, not one discussion with me about the bill.
The member knows absolutely, Madam Speaker, that I would have responded positively to an approach.
Madam Speaker, the media release simply said that the member had indicated that the opposition was going to oppose the bill. When you oppose a bill, you oppose its contents. The rest of the media release simply outlined the contents of the bill. Now, if you take exception to that, perhaps you need to get a thicker skin but when you oppose something you oppose the contents of it. You cannot oppose it and agree with the things that are being done. It does not work that way. If you oppose the bill, you oppose its intent and you need to get out there.
What I will put on the public record, and I am more than happy to, is that I acknowledge that you have a sincere commitment to these issues. I acknowledge that you would like to see these issues worked on and resolved. My commitment is there as well. I believe that the legislation we are passing today is good legislation and, as I said earlier in this debate, we all have to live with the results of it. If the results are as bad as you say, I will probably have a pretty hot time of it in the next couple of years, but if you are wrong, I hope you will come and say: ‘Well, you did get it right’, and let us celebrate the fact that some of those kids going through those court hearings are going to have a better run.
So let us get that on the ground and see how it goes in the practical environment of court hearings and hope that we get some higher levels of convictions of these predatory people who are committing these crimes.
Motion agreed to; bill read a third time.
SUSPENSION OF STANDING ORDERS
Move Motion of Censure
Mr BURKE (Brennan): Madam Speaker, as there is no question before the House, I move that so much of standing orders be suspended to allow me to move a motion of Censure against the Attorney-General.
Motion agreed to.
Mr BURKE (Brennan): Madam Speaker, I move:
That this House censure the Attorney-General for breaching Standing Order 62, which states in part:
This is a motion that can be dealt with very quickly simply by the Attorney-General apologising to the shadow Attorney-General.
He ended his comments in the third reading speech by saying we live by our actions. Well, the actions of which I accuse the Attorney-General this afternoon are the actions of impugning the reputation of the shadow Attorney-General, breaching Standing Order 62, which clearly states that that is not allowed in this Chamber, doing it publicly and libellously in a manner which I believe is absolutely disgraceful.
The Attorney-General stated that by opposing the legislation, the shadow Attorney-General has therefore opposed those aspects of the legislation that protect children. That is clearly not the case. That is clearly not only misleading this House, but misrepresenting the shadow Attorney-General . She has opposed the bill in the way it can act in its implementation and has made various suggestions as to how that could be improved in legislation.
Madam Speaker, it cannot be left to be alive that the Attorney-General can stand by a libellous media release without the censure of this House. I place my case on the motive that is behind the first paragraph of the media release, which says:
This is an absolute misrepresentation and a clear suggestion to Territorians, who are alarmed about paedophilia in our community, that a member of this parliament is supportive of actions that would allow paedophilia in all its forms and actions that would make vulnerable witnesses and children more vulnerable, particularly in the courts, to go on. That is an allegation against the shadow Attorney-General that I believe impugns the reputation of all of us in this House and cannot be allowed to stand.
I expect this censure to be lost by weight of numbers, sadly. I gave the Attorney-General the opportunity to apologise to the shadow in the third reading, to disavow himself of the comments in that media release and he refused to do that. He said that the shadow Attorney-General and opposition should have a thicker skin. Let him get a thicker skin.
You cannot, Attorney-General, be allowed to be the top law officer in the NT and, by media release, impugn the reputation of my colleague the shadow Attorney-General without inviting censure from the opposition, and that is why you have it today.
You cannot suggest that somehow, the shadow Attorney-General, by her actions in this House, has done something that protects the actions of paedophiles. You cannot do it. You should not do. You cannot somehow make the connection that because she opposed the legislation that you introduced, because she used this as a House of debate to question the legislation, she is aiding paedophiles in Australia. You cannot make that suggestion.
You certainly cannot say that what the shadow Attorney-General opposes is preventing young victims having to live through ordeal again and again through the trial process. That is clearly something she does not oppose.
You cannot say that she opposes protecting other vulnerable witnesses, such as adults with an intellectual disability. You cannot say that she provides for children and other vulnerable witnesses to give evidence by pre-recorded statements in committal proceedings and therefore she opposes that aspect of the legislation.
You cannot say that she opposes introducing time limits for prosecution in sexual cases, and you cannot say she opposes abolishing oral examination of children in committal proceedings for sexual offences. You cannot say that her actions in this Chamber are bizarre.
The issue is not the debate in this House. The issue is the reputation of a colleague and member of this parliament. If it were on many other subjects, I would agree that we need to have a thicker skin, but no one in this House should be allowed to get away with accusing any member of this House of supporting paedophilia in any of its forms. No one should be allowed to get away with that.
The shadow Attorney-General is correct: for a government that came to government with such high standards, you soon dropped them. There have been conversations in this House today about the personal abuse that is creeping into this House more and more. If you want to get right down in the gutter, we can get down there, too. Member for Casuarina, take note.
We do not want to go that far, but if you want to start off with that business today, do not walk away from this media release. You should walk away from it. I can tell you that I personally have a lot of respect for you and the way you discharge your duties as Attorney-General, but you diminish not only yourself, but everyone in this House, by allowing this media release to stand.
The media is listening up there tonight. Why don’t you stand up and be a man and say: ‘This media release goes too far. We might have political differences, but this media release goes too far. I certainly didn’t make any suggestion that the shadow Attorney-General in any way, shape or form supports any of those actions that are in the media release. I am certainly disappointed that she didn’t agree with my legislation. I do not agree with the points she made. The legislation stands. The government stands by its legislation’? But disavow yourself of this media release and this censure motion can go no further.
If you do not do that, it is a sad day for this Northern Territory parliament, and it is a particularly sad day for you, personally, Attorney-General, because there is one thing that the newer members of this House should have figured out by now, if you have not figured it out already, and that is what goes around comes around. It might be your go around turn today, but it will be your come around turn tomorrow. You have an opportunity to stop the wheel from turning if you want to now, and all I do in the censure motion is ask you to do it.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, it has been a very difficult day. It has probably been a very difficult couple of days in the parliament, as you yourself have pointed out. We do become very heated in debate.
I have spent most of today being called unprincipled, arrogant, an idiot, a fool. If we are going to talk about reconciliation, and I presume that is what this censure motion is all about - that the member over there feels that her very long commitment to these issues has been somehow impugned - well, maybe it has to be a two-way process, because I pride myself very much on trying to maintain objectivity and respect for this House.
In the old days when we were in opposition, I got several demerit points for never being thrown out of this House because I genuinely respect the processes that go on here.
In respect of the issues before us, the member for Araluen has not entered this exchange today with an attitude that allows me to respond to her. She has not used the process that I, in high sincerity, offered her, both in the general processes of legislation here in the House, and in the particular negotiation that could have occurred on this bill itself.
There are many issues involved in the bill, issues about which she and I have spent many years trying to change. Every time I see a kid out there in the community, I want to know what I can personally do to support them. All I am trying to say is that I came here with equal passion about this legislation as the member for Araluen.
For that reason, I was disappointed not only with the attitude that she adopted during the debate, which I found personally very offensive, but also the fact that she had gone to the media, and I will read a transcript from the 12.00pm ABC Radio News:
If the opposition want to say that I had no right to respond to that then, perhaps what is good for the gander in this case is also good for the goose. Either we are not going to comment about a debate in progress in parliament and the position taken, or we are. The opposition has said very clearly that they are going to oppose this bill. My media release quotes directly from the CLP web site:
Ms Carney even goes on to, I think, claim credit for some of the content of the bill. I will not deny that we have had discussions about it, and that I have taken note, as I promised, of what she had to say in the House right from the time of her maiden speech. She said on the web site:
In my media release, and I do not retract this part of it at all, I said it is a bizarre position to take. Right up to the time that legislation came on for debate in this House, two months after it was tabled here and two months after the member had given that response to the legislation on introduction, we now, out of the blue virtually, have this trenchant opposition to it on all fronts: There was absolutely nothing right with the bill; everything had to be chucked out, removed. That is what I am calling attention to in this media release, the fact that it was a bizarre series of positions that the member took.
I will retract one part of what was said. I do not want to leave on the public record that I am impugning your commitment to these issues. I believe that you have a sincere commitment to protecting kids and to improving processes within the justice system to achieve that aim. The media release, by putting your name against the contents of the bill, could convey that, although it was not in the words, and it certainly was not the intention to say that that was your personal position.
What I was indicating, quite correctly, is that the CLP was opposing the bill; this is what the bill deals with; these are the contents of the bill. When you oppose a bill, you oppose the contents of it. That is a statement of fact and it is an incontrovertible fact. You will have it on Hansard from right now that I do not believe that is your personal position, that you are uncaring or opposed to the type of protection the bill is providing for kids.
That is as far as I believe I have to go. I would be very grateful if the member could show some graciousness in return and say that I am not arrogant; that I do include members of this House in the legislative process to the highest degree possible; I am receptive to people or any member who wants to bring a proposal in legislation to me for inclusion in a bill. All of those things are on record. They are in my records of past action. After a whole day of what has been described as venomous attacks on my person and integrity, perhaps an apology might be a gracious way to end the day, and we can then get on with our working relationship across this Chamber with better spirit in future bills that we are going to debate.
However, I believe the CLP needs to explain, if it is going to oppose the bill and show such trenchant opposition to the bill that went through today, its policy. What are you going to do about it? What I know now is that as of about half an hour ago, we have the prospect of working legislation, once it goes through for assent, and it will be in the courts and being used in a very short time. I am happy with that result for a day’s work - in fact, it was quite a few months’ work on this legislation.
I again say that I acknowledge publicly that the member for Araluen has a genuine and long-standing commitment to these issues, but equally, the rest of the media release stands because it deals factually with the position taken by the CLP today and the contents of the bill.
Mr DUNHAM (Drysdale): Madam Speaker, I think we had an apology of sorts there, and I am grateful to the Attorney-General. I think he realises that my colleagues, the members for Brennan and Araluen are offended by this media release and the impugning that goes with it. I thank him for his apology because it has gone a long way to put this matter to bed, largely.
I was suspecting that something like this might happen because there were a number of interjections while my colleague was speaking, about where she had obtained information, and they came from the Leader of Government Business and others, and it seemed that it was turning into a fairly hot debate. She has a fairly vigorous style of debating, I admit, and I have been…
Ms Martin: Offensive is probably closer to it.
Mr DUNHAM: Pardon?
Ms Martin: Offensive, I would have thought was closer.
Mr DUNHAM: Offensive? It may well be offensive to you but it is it is pragmatic. Warriors who go out into the community to fight the good fight for children often fight hard. That is why I was so offended in the first place. I have seen this warrior in action and she does fight hard. She fights vigorously for the rights of children.
It is a long bow to draw from the Attorney-General’s difficult day to the issues in the media release. If you look at his umbrage, there was concern about the security of videos of traumatised children recounting stories of the sexual horrors that they have faced, and that is a reasonable thing for us to consider.
Indeed, the Attorney-General says that he will consider it. Even though he does not see it as necessary to put it into statute, he also believes it is an important issue. So what was on the radio did not say, ‘I think Dr Toyne aids and abets people who assault children’. Dr Toyne was offended by the fact that there were some criticisms of the capacities and style of this legislation and whether it was adequate to continue to defend children insofar as the images on videos were concerned.
We have all seen and read about the unauthorised release of videos, so you cannot make the assumption that this is a trite, stupid or in some way a fabrication from the member for Araluen about this issue. It is a significant issue.
He retorts by saying okay, you have offended me by talking about where the videos might be stored, and I am saying that you oppose preventing young victims having to live through the ordeal again and again, and you oppose protecting vulnerable witnesses. That is a very long bow to draw. It was only a couple of days ago when Hansard will recall that this very member introduced a bill in to protect witnesses. Hansard will also recall that the Attorney-General opposed it. He opposed the bill to protect witnesses.
If this process of saying here is a bill to protect witnesses, the Attorney-General opposes it, therefore he is a person who believes that vulnerable witnesses should not be protected. He has a form of words in his bill. He says: ‘Mine is better than yours’ and ‘Thank you for doing this several months ago, but I have only just come onto it’. He does not like being accused of being arrogant, but he drops this thing a month ago, which is more complex than the bill my colleague introduced, and he expects us to have a thinking attitude to it. Rather foolishly, we believed that his public utterances would be vaguely similar to his statutory utterances in the bill.
As we went through clause by clause, we found that there was a vast difference. It is our duty to point this out, and we can use words like ‘fraud’ and ‘it’s not what you wanted’ and ‘you are misleading parliament’. They are forms of offence we all get from time to time and they really deal with matters of legislators not really hitting the mark or being sloppy or tardy or missing the case when there was a bill on this parliament’s agenda for some months and it took him until the 11th hour to have a look at it. All his arrogance of asking why no one talked to him and why we didn’t run through it, in this case, can be put on the other foot because on Tuesday, did the Attorney-General make an appointment to see my colleague, the member for Araluen? Did he go and see her? Did he say: ‘I have a few clauses here that might make your bill a bit better’? No! He showed up in parliament and said: ‘It all stinks. Get rid of it’.
This is the same bloke who says: ‘I dropped mine a month ago. I have had several months to read yours, but I dropped mine a month ago. I want you to read it, and here are some media releases on it’ and all of that stuff. It is the height of arrogance to make the assumption that we will come running up to his office and say: ‘Gee, that’s wrong and that’s wrong and I put a lot of work into changing this’ when we suspected that it would be rammed through, and it was.
It could be that it is brilliant legislation. It could well be that we will never experience problems in our courts again with vulnerable young witnesses. I suspect that is not the case. I suspect that, no matter how we try and strive, we will always have problems in this area and we will always have to look at doing it better. We might even have to go to practitioners. We might even have to go to people with experience in this area.
What good fortune did we have in parliament tonight? We had an Attorney-General presenting a bill and a practitioner with years of experience trying to give some legs to the bill, some resilience, trying to give some protection to young children in the bill being told that she opposed preventing young victims having to live through the ordeal, that she opposes protecting vulnerable witnesses, she opposes providing children and other vulnerable witnesses to give evidence in pre-recorded statements, she opposes introducing limits and opposes abolishing oral examination of children.
That is a pretty long bow. If the logic of the Attorney-General is to be believed, there is a lot of stuff to which he is opposed. We can go to the bill that we discussed on Tuesday, which attempted to do a number of things. For instance, it was to protect vulnerable witnesses. If the Attorney-General knocked that bill out, can we say the Attorney-General opposes protecting vulnerable witnesses? It determined what was in the best interests of justice. So is the Attorney-General, in opposing the bill of my colleague, opposed to the interests of justice?
If we are looking at the best interests of justice in my colleague’s bill and it is opposed, is it the same argument that she can mount by media release that we have an Attorney-General who is not interested in justice? I think not.
For him to say that he was mightily offended that some words flowed across the parliament about his competence and like things, that is the cut and thrust of debate in here. It is another level altogether to talk about people who are uncaring about children brutalised in our society by sexual offences. That is where he went, and that is not the right area to go.
I am heartened that his apology, from my reading of it, might satisfy my colleague, and I have not conferred with her because this debate is on foot, but I thought at least it goes to: ‘I was wrong; I impugned her character, which I did not mean to do, and I know her to be a worthy, humane, upstanding and caring person’.
That satisfies me. I think he has made a vital mistake in making the assumption that unless you are on board the good ship ALP as legislation comes through this parliament, you are against everything that democracy stands for and everything that those statutes represent. That is a foolish argument, and I believe that it fully offends Standing Order 62. There is absolutely no doubt in my mind that the member attributed directly, not by innuendo, but directly to another member, unbecoming conduct or motives. The release carried the heading ‘Carney plays politics over bill to protect children’. We do not play politics; we do politics. Politics is our job. It is our very job to invite politics into matters relating to how statutes and legislation pass through this parliament.
The insinuation is that it was a frivolous, vexatious activity, this playing of politics, and it was merely to use this bill as a play thing for the furthering of the political interests of my colleague. That is totally unfair, and I say that as someone who met a lawyer called Jodeen Carney before she was Jodeen Carney, MLA, and I can vouch for her credentials. I have seen her work. I have seen the results of her work. I know that she was the advocate of children in courts in cases that my particular make-up and weaknesses would not allow me to do. I can say that on the record. I would not be able to do what this shadow Attorney-General has done in her work life.
Hopefully, some of the tempers have been cooled. I do not think it helps that the Chief Minister comes in here and wants to continue the debate by various trivial interjections …
Ms Lawrie: Huh!
Mr DUNHAM: No huh about it. Some of the stuff that flies across this Chamber is becoming more vengeful, vitriolic and hurtful.
Dr Burns: Oh, now come on! How can you say it with a straight face?
Mr DUNHAM: Okay, I will take the point of the member for Johnston. Some of the debate in here is not becoming more vengeful, vitriolic and ...
Madam SPEAKER: Shall we just get back to the censure motion?
Mr DUNHAM: The censure motion is about this, Madam Speaker. It is exactly about this. It is about this Chamber progressing towards the brink of using this place, and the words that are used in this place, as matters from where there is no comeback.
I am grateful that the Attorney-General has given a route to come back from this particular thing. I leave it to the judgment of my colleague whether she wishes to progress the matter further. I, for one, in the words that I hear, am grateful that he has used some wisdom to retreat from the position that has been put in this media release.
Mr HENDERSON (Leader of Government Business): Madam Speaker, obviously, we will be opposing this motion for a number of reasons. It is going to be interesting to look at the Hansard of this debate to see exactly what was said during the course of the debate.
When I look at the media release, I have it here and I have read it, I can certainly say I have seen a lot worse. I have seen a lot worse over the years in regards to a political attack on any member of this House in the current session of parliament and certainly in many previous sessions. I understand that this is a very sensitive issue and, as I said in the third-reading debate, of all the legislation that we pass through here, why this debate has descended into such depths of acrimony is totally astounding.
I did not hear all the comments that my colleague made when responding to this, but the undeniable position of the shadow Attorney-General regarding the comments that she made in the second reading, where she indicated that the opposition would be opposing the bill, and in the wrap of the committee stage of the debate when she urged my colleague the Attorney-General to defer the passage of the bill into law for a week, whatever period. With all these significant concerns that are out there in the legal world - all these dozens of esteemed lawyers who have huge concerns with this bill - not one of them has contacted my colleague, the Attorney-General’s office. You would have thought that if there was this massive uprising in the legal profession with huge concerns in regard to this bill, that in the two months that it has been on the Notice Paper, the lawyers who practise in this area of law - and it represents significant reform - I imagine a large number of them would have looked at the bill. I would have thought that if there was this huge groundswell of opposition in the legal profession, one of them would have picked up the phone to the Attorney-General’s office and said: ‘Can I speak to the Attorney-General? I have a real concern with this bill’. Did you receive one call?
Dr Toyne: No, zero.
Mr HENDERSON: Not one call. I challenge the shadow Attorney-General to provide any evidence that there is this huge groundswell of opposition in the legal profession to this bill such that we should delay passage to allow these concerns to be heard. The only person we have heard who has any concerns about this bill is the shadow Attorney-General, concerns that are so deep, so passionate, so conviction-based that she could not pick up the phone to the Attorney-General or walk across the road in Alice Springs from her electorate office into the Office of Central Australia to say: ‘Hey, Mr Attorney-General – Pete, I have problems with this bill’.
The position today had not been flagged. As my colleague, the Attorney-General, stated in his media release, all the comments that have been publicly made by the shadow Attorney-General have been positive - until today. Today, she waltzed in here and for four hours paraded line by line, word by word, through the bill, saying that this is such a heap of garbage, it is a chook’s breakfast and deserves to be thrown out or, at the very best, the passage of the bill should be deferred.
What is the impact of that? She said the bill needs to be thrown out and re-written. We have legislation today that has been in the public domain for two months on which an enormous amount of consultation took place beforehand. What is the result of that: either the bill being withdrawn and re-written because it was so appalling, and that was her initial position, or deferred?
The impact of that is that, for a period exceeding the time between now and when the bill is assented to, children will continue to be exposed to the current processes within out courts. That is the outcome of what she was espousing today. That is all that my colleague, the Attorney-General, has referred to in his media release, pointing out the bleeding obvious that if this bill does not pass today, the outcome will be that kids in our courts will continue not to have the protection afforded to them in this legislation. That is pretty obvious, and that is all that my colleague has said in his media release.
As I said, I have seen a lot worse on both sides of this parliament. In his initial comments, the member for Brennan talked about my colleague, the Attorney-General saying the member for Araluen was protecting paedophiles by this. I thought: ‘Gee, that is a bit strong if Pete’s put that in his media release’. I got hold of the media release and it does not mention it at all. It does not mention the word ‘paedophile’ or ‘protection of paedophiles’.
Mr Stirling: That is not what the member for Brennan said.
Mr HENDERSON: That is not what the member for Brennan said. I cannot find anything in this. The sensitivity today I find absolutely extraordinary. I am still grappling with why the member for Araluen has been so venomous and vexatious during debate on the bill today.
There would be a significant number of people who were listening to the parliamentary broadcast today, people in Parliamentary Counsel, the Department of Justice, the legal officers who have worked so very hard on this legislation for many months now with the best intentions of putting the best possible legislation together that reflected the Cabinet decision that this legislation arose from. Those public servants have no right of reply in this parliament. I would be very surprised if there is not a large degree of hurt amongst those people with the accusations that the member for Araluen has laid out today that this bill is absolutely hopeless and it is not going to achieve what the intent was set out to achieve, it has been so appallingly drafted that you can drive a truck through it and there is going to be no improvement whatsoever in protection of children throughout court processes.
I could stand here and accept it as part of the argy bargy of the political process. If it had been my colleague, the Attorney-General, who actually sat down at his computer and drafted this legislation, I could have accepted that that is part of the argy bargy of the political process. The fact is that it is not. We have highly respected, highly competent, esteemed public servants, legal officers in the Department of Justice and Parliamentary Counsel who have busted a gut, Madam Speaker, to get this legislation together. For them to have been vilified, harangued, their competence called in to absolute question, alleging that this bill is so flawed that it needs to be thrown on the scrap heap without producing one person from the legal profession to back her comments up is absolutely outrageous.
I am inclined to amend this motion and call on the member for Araluen to apologise to those public servants for the vilification and vitriol that she has heaped on their competence. It is absolutely astounding.
I can say that as Chair of the Standing Orders Committee, I will be referring this debate to the committee to look at our standing orders to see how we can further afford protection to our public servants who have no right to reply in this place. They have no right to reply in this place to the venomous tirade of invective directed at their competence. It is absolutely astounding. This censure motion holds absolutely no water. I would probably not have accepted it but I had not seen the media release when the member for Brennan jumped up and made the allegation that my colleague, the Attorney-General, had accused the member for Araluen of protecting paedophiles, I thought we had better have a look at this, but when I read the media release, it does not say anything of the sort.
It just points out the consequences of withdrawing this bill, as was called for. It is so bad it needs to be withdrawn altogether or at least deferred. The consequences of that is the status quo remaining in our courts until such time as a bill to accord them further protection is passed. All it does is maintain the status quo. Again, I am not a lawyer but I will be astounded if she could find anything to take my colleague to court on about this matter.
Members interjecting.
Mr HENDERSON: Not one amendment. Not only could she not produce one lawyer, one third party advocate, to back up her comments that this bill was so flawed that it should not even been debated and passed today, she did not produce one amendment to try to improve the legislation.
Four hours worth of grandstanding and rhetoric, out to the media at lunchtime saying that this is so flawed it is a chook’s breakfast. If anyone has been playing politics today, it is the member for Araluen. In playing politics today, she has called in to question the competence of a large number of people who have been putting this legislation together and who, I would imagine, are pretty upset about the way this debate has progressed and pretty hurt by comments from the member for Araluen. I call on the member for Araluen to apologise to those public servants for calling their competence in to question …
Ms Carney: Well you know what you can do!
Madam SPEAKER: Order!
Mr HENDERSON: For calling their competence into question and asserting that they have not done their work, they have not done the research on best practice legislation to pull this together. If anyone should be apologising today, it is the member for Araluen.
Madam Speaker, I move that the motion be put.
Motion agreed to.
Madam SPEAKER: The question now is that the censure motion be agree to.
Motion negatived.
Continued from 19 August 2004.
Mr DUNHAM (Drysdale): Madam Speaker, we support this bill. We think it is a great thing.
Ms Martin: Where is the shadow?
Mr DUNHAM: Pardon?
Ms Martin: Where is the shadow?
Madam SPEAKER: Order, thank you! Chief Minister, order! We are in debate.
Mr DUNHAM: What is your problem? Under standing orders, I can rise and speak. If you have a problem with that, you are going to have to change the standing orders.
We support this whole heartedly. In fact, we are quite proud to be the architects of this very strong legislation, stronger pretty much than anywhere else in Australia. It is interesting that when it was first introduced, it was seen as a big break through. We had briefings from pretty much the same people who are working there now, Mr Thatcher and others in the police department, and it was seen as the best thing since finger-printing.
We introduced very strong legislation, the like of which was not available to governments in other states because they had very strong human rights activism going in those places and it was seen that DNA science intruded on people’s human rights.
The legislation that we passed was Australian best practice and we know that because the other states are now looking to copy it. According to the police minister on radio recently, there are several other states looking to replicate our very good DNA legislation.
It should be strengthened. Members will remember that when we introduced it, there were several of us who stood out the front and had buccal swabs taken. I was among them. It was important that we said to the community that we think this is a very good crime fighting device. Notwithstanding some of the protests in other states from human rights activists, we thought that it protected not only the rights of victims, but of people erroneously accused. There is a long history of matters relating to DNA here, in the UK and other places that I do not need to recount here.
What is really important is that the government has finally recognised that it is the good DNA legislation put in place by the CLP that has been responsible for the drop in property crime because what we found, and this was evident when it was introduced, is that often there is a progression of crime, which was the UK experience, so that someone who opportunistically broke in became someone who chose to break into places, who became a voyeur, who became a rapist. It was not until later when the sequences of crime were identified through DNA that you could see the graduation in severity of offences from some of these people.
We thought it was pretty important to introduce DNA legislation and to focus on property crime because we thought it was a fairly good preventative technique to stop people early, while they were doing the relatively minor crimes of break and enter, compared with what might follow, particularly if international examples held true.
We were very pleased to hear minister Henderson, and I will quote it into the Parliamentary Record, on Monday 27 September, which is only last week, say on the 7 am news on ABC 8DDD Radio:
It also has been recognised by the government that the clean up in property offences is largely attributed to DNA. The CLP government not only put the lab in on the campus of Peter McAulay Centre at the cost of some millions of dollars, but we introduced the legislation and statutory underpinning that was necessary.
In a quaint way, it is a very good accolade from the Police minister to his predecessors, and he is right. It is tough legislation. It should be in place in other states. Along with the science that is available to us in the lab out at the Peter McAulay Centre, it has been the major impact on property crime, and is definitely a preventative technique for criminals who would go on to harder, harsher and worse crimes.
We support it. We support other states picking it up. We believe that it has been the major contributor to the drops in property crime and we thank the Police minister for his accolades.
Mr HENDERSON (Police, Fire and Emergency Services): Madam Speaker, I thank the member for Drysdale and the opposition for their support.
I am happy to hand out accolades where they are deserved. Certainly, this legislation, when it was introduced by the previous government, was groundbreaking. We supported it at the time. We continue to support it and, yes, my accolades do go to the previous government and the officers at the time who developed the legislation.
We have stood firm. As government, we inherited this legislation three years ago. My colleague, the member for Nhulunbuy, the first Police minister during our term of government, took on an extraordinary fight at one Police Ministers’ Council where one of the states, and certainly the Commonwealth – which is very interesting, given that we have, hopefully, only until Saturday and then after Saturday it will be a Labor government, but a conservative government at the time – was trying to undermine our legislation and essentially demanded for the Territory to be part of a national DNA exchange program, saying that we would not be admitted to that program unless we wound back some of our legislation. We refused to do that. We are still holding strong, and the Commonwealth is slowly backing off. The reason that they are backing off is that, along with the other states, again, the police here pioneered the use of this DNA legislation for mass volume crime, especially property crime. That was pioneered here in the Territory.
Previously, DNA has been used for crimes of violence. We have seen, through a number of Genesweep operations, a massive clear up of property offences. Police commissioners and police ministers around the country have seen the success that we have had and we now have exchange agreements in place with Western Australia, Queensland, Tasmania and the ACT, and we are hopeful to conclude an agreement with South Australia by the end of this year.
Police ministers and police commissioners are looking at what is happening in the Territory, and this is good. It is good for Australia. I have absolutely no time for some of the civil liberties arguments that somehow this is an invasive process, and the fact that we keep DNA profiles forever on the database, and somehow people’s rights are being abused. I, too, have had a buccal swab taken. I have had my fingerprints taken. The reality is, from a civil rights perspective, particularly if you look at the United States where capital punishment is still a fact of life in most of the states, DNA has been getting people off death row, people who, prior to DNA technology being available, would have died at the hands of the state. Some people on death row can prove their innocence as a result of DNA technology. DNA does not convict, on its own, innocent people.
Yes, I will hand out accolades that it was good legislation. It is even better legislation as a result of these amendments. I hope that this parliament, through terms to come, continues to support and strengthen this legislation wherever necessary because what we have seen since this government came to office is a reduction in property crime across the Northern Territory of around 45%. Part of that is due to the DNA technology and Genesweep operations. Another significant part is the extra resources going to the police and the fantastic work they are doing in targeted operations, and work by the Police Commissioner.
The result of all of those things is that your chances of being broken into in the Northern Territory today, compared with what we inherited when we came to government three years ago, have reduced by 45% reduction. There is still a long way to go, but this legislation has had its place in achieving those very significant reductions in property crime.
Madam Speaker, I am very pleased that the opposition support these amendments. I can flag that I have one committee stage amendment that we need to go through before passage of the bill.
Motion agreed to; bill read a second time.
In committee:
Mr CHAIRMAN: The committee has before it the Police Administration Amendment (Forensic Procedures) Bill 2004 (Serial 241) together with schedule of amendments No 87 circulated by the Minister for Police, Fire and Emergency Services.
Clauses 1 to 8, by leave, taken together and agreed to.
Clause 9:
Mr HENDERSON: Mr Chairman, I move amendment 87, that the whole of section 147B(2) be omitted and substitute in its stead:
The amendment to section 147B(2) is not major, and is in line with the original intent of the amendment bill. This subsection is designed to provide protection for persons who volunteer samples to assist in criminal investigations. The reasons for the desirability of this protection were outlined in the second reading speech. The main reason is that by providing this protection, we will encourage suspects to freely give samples, which will help establish either their guilt or innocence.
The original clause made it clear that samples could not be used for other criminal investigations unless they involved an offence where there is a maximum penalty of 14 years or more imprisonment. However, police legal advisors have given this matter more detailed consideration and now believe that the subsection should be re-worded to make it clear that not only can it not be used for other investigations, but it cannot be used in other court proceedings unless the offence is one that carries a penalty of 14 years of imprisonment or more.
The legal advisors contemplated that there was a risk that the intent of the legislation may be circumvented if it was possible for another party – that is, not the police - might seek to get access to the sample information for the purpose of another court case. If there was a risk, we could see third parties issue subpoenas for this information, which had been volunteered with assurances of protection.
This amendment to section 147B(2) covers the same area as the original subsection, but makes it clear that the intent cannot be overcome by another party, other than police, seeking to get access to the volunteer samples. It does this by making it clear the prohibition includes investigations and court proceedings.
Amendment agreed to.
Clause 9, as amended, agreed to.
Remainder of bill, by leave, taken as a whole and agreed to.
Bill, as amended, agreed to.
Bill reported with amendment; report adopted.
Mr HENDERSON (Police, Fire and Emergency Services): Madam Speaker, I move that the bill be now read a third time.
Motion agreed to; bill read a third time.
MOTION
Note Paper - Remuneration Tribunal Report and Recommendation No 2 of 2004 –
Statutory Bodies
Continued from 24 August 2004.
Ms MARTIN (Chief Minister): Madam Speaker, this afternoon to brief members on the key elements of the Remuneration Tribunal’s Report on the remuneration of members of statutory boards and committees.
On 30 October 2003, the Administrator, acting on the advice of Executive Council, requested the Remuneration Tribunal inquire into and report on the remuneration paid to members of statutory bodies, and make recommendations in relation to the manner in which future reviews may be undertaken. The tribunal was asked at the same time to consider reforms to the classification structure for statutory bodies. To date, this is the most comprehensive inquiry undertaken by the tribunal in relation to statutory bodies. Whilst the tribunal makes a range of findings critical of the current system of administration of statutory bodies in the Territory, it also notes that the government is aware that there have been deficiencies. The report notes:
Some of the key findings of the report include:
A number of deficiencies regarding the current system were also outlined in the report, such as the rationale for the current fee levels, inequity of hourly rates, fees reflecting responsibility, ad hoc additions and amendments, and members’ responsibilities and contributions.
There will be financial implications if the government accepts the tribunal’s recommendations for an increase in remuneration, the payment of self-interest members on these boards which regulate the professions, and the introduction or regularising of entitlements such as travel and preparation time.
The report notes that since the sitting fees were last adjusted in 1994, they have fallen behind, taking account of the average weekly earnings growth differential over the same period. The estimated cost to government to implement all fee increases as a whole will be around $600 000. This includes fees to be paid to self-interest members on boards who were not previously remunerated. The additional cost is considered value for money and recognises the efforts and responsibilities of members of statutory boards across government.
Members of statutory bodies perform an important role within government. Collectively, their decisions can determine critical personal, business and property rights. It is necessary that members understand that they must act within the law, be loyal to the Crown, recognise government policy, act ethnically, exercise prudence and be economical with public resources.
There will also be resourcing implications if the government adopts the recommendations about improved administrative support for statutory bodies.
The report addresses the need for dedicated and professional support for statutory boards and committees within government in such areas as the development of policies and provision of advice on member recruitment, appointment and induction, ethical standards, governance standards and efficiency and effectiveness expectations.
It is anticipated that this resource would also be responsible for reporting members’ appointments and terminations, reporting meetings and remuneration information, the development and maintenance of a comprehensive centralised database on statutory bodies and the maintenance of a register of potential members. Many of the tribunal’s recommendations reflect the need to ensure these concepts are understood and observed. They are important from a good governance point of view and will bring the Northern Territory into line with best practice around Australia.
The key recommendations of the tribunal include a restructure of the fee schedule, new administrative support arrangements and legislative changes. Recommendations include:
Mr MILLS (Opposition Leader): Mr Acting Deputy Speaker, I acknowledge the work of the tribunal and the effort that goes into such reports. The report is duly noted.
Motion agreed to; paper noted.
Mr STIRLING (Employment, Education and Training): Mr Acting Deputy Speaker, much has been said over the years about the difference between the baby boomer generation, which ended in 1961, and Generation X, which followed. One of the differences evident is the attitude that they take toward work, life outside of work and the concept of quality time with self, family and friends.
Our generation of workers had drummed into us the belief that the longer you worked, the more hours you put in, the more this reflected your commitment and your dedication. It was a sign of productivity, and often a key determinant of your promotional chances in the workplace. Times have changed.
Today, more and more workers question what is important in their life, and the answer is, to them, not working longer hours. Today, people do not define themselves exclusively by where they work or what they do and, as an ageing baby boomer myself, I applaud this change.
This ministerial statement articulates the government’s work-life balance policy issued in the booklet on members’ desks. It will be examining work-life balance issues and their application in the Territory public sector. It will point to efforts taken by government in implementing a flexible workplace.
The government is committed to the development of a responsive, flexible public sector, which provides excellent services to the people of the Territory. We support employees in balancing their work and life commitments, and we recognise that balancing the needs of the workplace with those of the employees will create a more productive and effective public sector.
The concept of work-life balance recognises that all employees have commitments outside of the workplace. These commitments may relate to family, education, the community or to general health and wellbeing.
All employees, for many different reasons, may need to balance their work and the rest of their lives, and reasons could include:
A number of significant changes have occurred in Australian society over the last 30 years. These have had a direct impact on the way work is both viewed and carried out. Family structures have changed. Between 1976 and 2001, the proportion of families made up of the traditional couple with children fell from 60 to 41% of the Australian family mix.
Today, there is a growing number of families that are either single parent or couples without children. There has been a shift in financial and social expectations. Embedded concepts of equal opportunity and the changing roles of families, as well as the need for dual incomes due to financial pressures, have all contributed to more women entering and staying in formal employment. These circumstances are particularly evident in the Territory. Couple families here are more likely to have two incomes than those in the states. The situation is similar for one parent families, with Territory single parent families more likely to have a working parent than all states except Western Australia.
Another variable comes through our ageing population, and a consequence of this change is that many more people of working age now need to care for an elderly relative or partner than has previously been the case. As stated earlier, members have a copy of the policy booklet distributed with this statement, and the policy contains a six point implementation plan which we will now set into action.
First, government will articulate the case for work-life balance issues. To ensure that these issues are treated seriously, we will make sure evidence is available from case studies conducted by the public sector to show the business case for implementing a flexible workplace and specific strategies.
Second, we will consolidate currently available work-life balance options.
Northern Territory public sector employment conditions allow for a wide range of flexible working options, and offer excellent entitlements to employees. There are numerous options for work-life balance practices that agencies are currently able to implement. Some provisions are set up in the Public Sector Employment and Management Act, the relevant award or certified agreement. They include:
Implementation of our work-life balance strategies will see us ensuring that these tools of a flexible workplace are widely understood as options for employees.
Third, we will investigate new work-life balance options. Following is a list of the innovative options which are in use in other organisations and, in some cases, are already being used by some agencies within the Territory public sector. It is not intended to be an exhaustive list of options, nor does it suggest matters have been determined. They are possible options in developing workplace flexibility, keeping in mind the operational and budgetary constraints of the agencies. These are possible options in developing further workplace flexibility:
Fifth, we will be promoting work-life balance. We will be articulating the issues publicly – for example, through this statement - and promoting the issues throughout the agencies. A one-off event to promote work-life balance was held last Thursday in the form of a day-long conference. The conference featured a range of experts in the field including national award winners for best practice organisations, mature aged work force specialists and a consultant who delivered workshops on introducing work-life balance initiatives.
The benefits to developing sensible work-life balance working arrangements are significant: increased stability to attract and retain skilled employees; improved productivity and reduced staff turnover; increased return rate of female employees from maternity leave; reduced recruitment and training costs and increased return on training; reduced absenteeism, lateness and stress in the workplace; improved employee morale and commitment; improved occupational health and safety; reduced worker’s compensation accidents and lost time injuries; increased flexibility in management practices; and increased flexibility to meet varying workload demands.
Mr Acting Deputy Speaker, the government is committed to being a model employer. We do value the public sector. We recognise that the public sector has worked hand in hand with industry in driving historic economic development of the Territory and still plays that role today. This government believes its incumbent on us to be responsive to the needs of public sector workers. Increasingly articulated is the need for workplace flexibility. The policy detailed today will be implemented in a sensible and considered way and I am hopeful that these innovations will see a better, more responsive workplace for the Territory’s public service employees.
Madam Speaker, I move that the Assembly take note of the statement.
Dr LIM (Greatorex): Mr Acting Deputy Speaker, if I were a public servant listening to this debate in the offices across the public service, I would be very pleased with the way this government has come along and said: ‘We are there supporting the public service. We are there to do as much as we can for them.’ Don’t get me wrong; I support the initiatives that the minister has outlined as to what he thinks the government should do for the public service.
Ms Martin: Why don’t you say so rather than being begrudging?
Dr LIM: Taking on the interjection by the Chief Minister, I am not begrudging at all to the public servants who deserve every bit of support that this government can give. But, do you know something? Public servants really have been very angry for the last three years. I wonder if the Chief Minister remembers this. Does she remember this: the thing that she did three years ago before she was elected? She promised the public servants no sackings. Your jobs are secure. No public sector job would be lost. Immediately after she got in, 1500 jobs disappeared. Over the last three years, what has happened? She has had a fist around the public service throat. For three years she has strangled them. Suddenly she has become the best friend of the public service and that is the problem I have with this government.
The Chief Minister and Minister for Employment, Educating and Training say: ‘Hey! We have such a beautiful initiative for the public service’. Remember this document, minister? You may not have known of its existence. It is in the bibliography of your booklet, by the way, and is called Flexible Work Practices. This document was published in 1997. I quote from the introduction:
It goes to say that employees raised the issue of flexible work practices, in particular what is available and how to access them. That was written by David Hawkes back in 1997. Obviously the plans, the initiatives, have already been in place. The minister, in fact, drew attention to them in his speech and I will come to them in a little while.
We have many important issues to discuss: the economy of the Territory, tourism that has been poorly let down by the Minister for Tourism, the Chief Minister, we have nuclear waste transport; it was talked about all day today, but when it comes to debating it, you decide to give it a miss and come up with this instead. You have to ask the question: why is the government doing this? Is it preparing itself for an election and now trying to court the public service?
The minister has come up with the statement, saying that he is committed to the development of a responsive, flexible public sector that provides excellent service to the people of the Territory. No one can disagree with that; we want a balanced lifestyle, a lifestyle that makes work enjoyable so you can go to work and have time for family. At the end of the day, it is family that matters more than anything else and if we have a good, balanced life, obviously that is going to work.
That was similarly stated back in 1997. For the benefit of members, I will read a couple of paragraphs from David Hawkes’ document Flexible Work Practices. He asked:
He then lists four benefits for employees and the employer. Obviously, a balance between work and lifestyle is very important. We all live in the Territory because of the lifestyle. If work suddenly takes over or consumes most of the day, what is the value of living in the Territory? We may as well be locked up in an office in the middle of Sydney.
While there are shifts in the social fabric of Territory society, the aging population is really not significant at this point of time. Obviously, over time as the population ages, being able to split time so that you are not working full-time each week will be a consideration.
The minister, in stating his various points, only referred to this document, published by the CLP back in 1997, was a meagre 10 words:
Whoever wrote the speech obviously did not have time to write an original speech because it was not quite lifted from that document, but many things were quoted. Page 12 of the minister’s speech referred to flexible working hours. If you go to page 7 of Flexible Work Practices, it is headed ‘Flexible Working Hours’. From Flexible Work Practices, I quote:
The minister said in relation to flexible working hours:
It means very much the same thing, doesn’t it? The minister went on to talk about home-based work. Again, more paraphrasing of this document, and he went on from there.
I wish there was more on which the minister could elaborate rather than repeating what has already been said. Very little that is new has come out of it. The one thing that I found a little bit hard to accept was step four, piloting a new approach. If you look at this the booklet that he referred to, Work-life Balance in the Northern Territory Public Service, on page 15, it gives the various objectives, one to six, with some time lines. When you study those objectives in detail, looking at the actions, performance indicators, responsibility and time frame, while the time frame extends from November 2004 to February 2006, the actual outcomes of those objectives are very much paper-oriented. Even the performance indicators that are listed in those tables are all desktop models of what is likely to happen if a particular program is introduced. Nothing is there to say that people will be taking part in programs.
Is that just because of timing, or is that a big con by this government of the public service to try and woo them back, to try and show that, over the last three years, that the hardship that they have gone through will now be rewarded by a government that is going to do something for them in this autumn of their term? But, then again, just like this promise that the Chief Minister gave before the last election, then turning around immediately after gaining government and sacking public servants, is this going to happen again? Make the promise now just before the next general election, and immediately after the election is over, everything disappears off the table.
The minister said the government is committed to being a model employer. A model employer, you would think, would be fair, would trust public servants to give fearless, honest advice. However, the public servants to whom I speak, who are my friends, say they have an atmosphere and environment of fear. There is a cultural fear in the public service. They are terrified to speak out because of the punitive actions that may be taken on them. Who has politicised the public service? Do not tell me that you have not. This government has politicised the public service. Talk to many public servants out there and they will say it has happened like it has never ever happened before.
At least the CLP can stand proud and say we were ethical about it, we did not politicise the public service, not like you, not like the Labor Party has.
Members interjecting.
Dr LIM: When the minister then said this policy had he detailed today will be implemented in a sensible and considered way. You have to think those are weasel words: it is going to be implemented in a sensible and considered way. In other words: ‘Hey, when we get back in to government next time around, we are going to be slow about it, we are going to be very considered about it, we are going to make sure there is enough money there to do everything’ and then if it does not happen, ‘When we considered the issues, we considered it is not worthy so it will not be supported’.
That is the problem. While the sentiments in the booklet are something that I support, and if I were a public servant, I would dearly love it. What I fear is the commitment of this government to follow through on it. That is the problem. I am not certain that the government will follow through on it. It is too glossy. There is no money put aside. There are no resources to make sure that this program will take place. If there is no money put aside for it, irrespective of the time lines, which at the moment give no indication of what real outcomes we are gong to have apart from a few people, pilot teams, who sit at desks and manipulate the processes to try to achieve outcomes on paper. That is not good enough. The public service needs more than that; they need your support.
I believe that under the flexible working practices document, several things have been taken up. We know that public servants have taken up flexible working times. They are able to work extra hours through the day and then take some time off through the week. They have attempted to job share and that has been one particular section that has not been well used in my opinion. I know of many nurses in Alice Springs who would love to job share in the Alice Springs Hospital and they have been denied that over the last three years. One of the reasons why we do not have enough staff is because many of the nurses living in Alice Springs have not been able to job share at the hospital. If they could, I am sure the hospital would be able to get itself better staffed.
Career break schemes have been on line for a long time. People can take extended leave or leave without pay to do whatever they have to do in their own lives. Those are the things that have already been taken up.
Home-based work or telecommuting has largely not been taken up. We still have to go through a bit of culture change to get ourselves thinking that we can work independently and efficiently at home. For some parents who choose to be at home to care for the family, perhaps this will be a good thing.
What this is all about at the end of the day is whether you can trust this government to fulfil the promise contained in this booklet. That is something that I cannot trust. I do not believe that the actions of the government in the last three years give me any confidence that they will follow through. When you have a document signed by the Chief Minister, when she was Leader of the Opposition, saying: ‘When I get in, there will be no job losses’ and then it happens. What is going to happen with this one?
Morale in the public service is not particularly high and the Chief Minister would know that. Now we are in election mode, they say: ‘Let us do something to sweeten up the public servants’. I have to view that very cynically and say: ‘This is the way they do it’.
In closing, I want to draw attention to the closing paragraph of the minister’s statement where he said:
which proves that much of the document is rhetoric and will not see the light of day. If I were in the public service, while I am very keen to see this happening. I would want a minister to sign, seal and deliver it before the next election. If that is the case, obviously I would have confidence because it has been delivered. However, until the minister does that, I am particularly concerned that nothing much will come of it. Minister, you have to convince more than just me or your colleagues in this matter.
Ms MARTIN (Chief Minister): Mr Acting Deputy Speaker, I would like to be able to say that I welcome the Deputy Opposition Leader’s contribution to this debate. However, it was negative, it was …
Mr Stirling: Nonsensical.
Ms MARTIN: Nonsensical is a good word. It was conspiratorial and wrong in its facts. Fifteen hundred cut out of the public sector? From where does he get his numbers? We now have a larger public sector than when we came to office. How can we have cut 1500 out of the public sector? We have increased key areas. We are increasing police numbers, nurse numbers, teacher numbers and child protection workers. I have seen my own department grow significantly because now we run a whole-of-government approach. We have seen the public sector grow strategically. I can only thank our public servants for the work they do and apologise now to those public servants in Justice and in Parliamentary Counsel for the offence they have had to put up with this afternoon. They should not have to put up with that. We respect our public servants. To hear the ridiculous words of the member for Greatorex saying we had politicised the public service, as compared with the Country Liberal Party after 27 years who never politicised the public service only shows that the grasp of reality of the member for Greatorex seems to have abandoned him all together.
This is an important statement. To say it is politically motivated is simply an absurdity. It is a good statement about an important issue for a very significant proportion of our work force. It would have been nice to think that the member for Greatorex read the statement and responded in a sensible and, one would even hope, intelligent way.
The issue of work-life balance and access to flexible, family-friendly workplaces has emerged as one of the greatest challenges for workplaces in the new millennium. In Australia, all tiers of government and many private sector companies have recognised the benefits of work-life balance initiatives to the community and the economy.
My government is no exception, and acknowledges that managing the balance between work, family and community life is an issue of concern for many Territorians. We are working to enable employees to achieve a better balance between their work and personal lives. In a recent survey conducted by the Office of the Commissioner for Public Employment, approximately 30% of our public service employees reported going home feeling stressed, while nearly a quarter said that work commitments often or always prevented them from spending a reasonable amount of time with family and friends. A quarter also stated that they took work home. Over 60% of respondents said they regularly worked outside of normal hours and 90% said that flexible hours are important when planning for long-term career goals.
The issue of work-life balance is particularly pertinent for women. All employees have commitments outside the workplace, but it is women who undertake the majority of unpaid domestic, caring and volunteer work in the Territory. It is mostly women who are affected disproportionately by the need for a harmony between the public and domestic spheres of their lives. In numerous surveys conducted by the Office of Women’s Policy, women have consistently identified that creating balance in their lives and being supported by the workplace in their roles as parents, partners, workers, carers and active community members is of increasing importance. There is little doubt that women now live in a far more complex work and family environment where needs such as job satisfaction and a fulfilling family life are in constant competition. So what has changed and how has it changed?
There has been a significant change in the typical Australian working household. Nationally, women have increased their work force participation by almost 20% since 1966. The Territory has one of the highest female work force participation rates, with 68% of working age females in the labour force compared with 57% nationally.
Women are also more likely to be working full-time in the Territory; that is 64%, compared nationally with 55%. Between 1991 and 2001, the number of Australian women in the work force with children under the age of five increased by almost 5% to 49%. Again, in the Territory, the proportion of women working who have young children is higher than the national figure and is 58%. In addition, in the Territory, both parents are employed in 65% of families with children. Child care is a prerequisite for any parent to be able to participate equitably in the work force.
Women are participating in the work force at greater rates than ever before, yet men’s domestic sphere roles have not changed significantly. Child care remains predominantly the responsibility of women and this has significant implications for their social and economic status. Women are being forced to choose to either provide care under the stressful conditions of bearing a dual role, or give up paid employment at an economic and social cost to themselves and their families. This inequitable division of labour also results in many women who choose to continue to work doing so on a part-time or casual basis, leading to insecurity, low pay and little on-the-job training. Women may also have limited opportunities to apply for senior positions owing to job requirements including overtime and travel.
This combination of factors leads to women with a reduced ability to remain in the work force or to be competitive in job advancement. Many women are therefore choosing to delay having a family, reducing the number of children they have, or choosing to remain childless. The resulting lower birth rates will eventually diminish the number of new entrants into work force.
At the same time, people are living longer. Flexible work practices are needed to attract and retain older employees, particularly women who may also have the responsibility of family caring.
The issue of work-life balance also has implications for the employer. The President of the Territory’s Chamber of Commerce and Industry recently stated that:
The reality, Mr Acting Deputy Speaker, is the new generation of workers are seeking employment opportunities that offer them a life outside work. A lack of work-life balance can also lead to greater expense to companies and agencies owing to loss of productivity, high staff turnover, loss of knowledge and expertise and unnecessary administrative costs.
Increased work-life balance has great benefits for the economy: flexible working hours, part-time work, home-based work, job sharing, time off in lieu, and career breaks are all options that will facilitate employees joining and remaining in the work force.
What initiatives has my government undertaken to address this important issue? The concept of work-life balance recognises that all employees have commitments outside of the workplace that impact on their working lives. For the NTPS, this means adopting a broad range of policies and practices that make agencies more responsive to the needs of its employees, making it easier to manage competing work and family or community commitments.
Nationally, employment arrangements and conditions supporting women’s participating and progression in the paid work force are still quite limited and fragmented. Some enterprise agreements have a non-statutory, family-friendly employment condition. Others have some flexible work arrangements in an enterprise agreement. Many workplaces do provide family-friendly conditions in policies rather than formal agreements, and access to them is often discretionary.
In the Territory, NTPS employment conditions already allow for a wide range of flexible working options, including generous annual leave entitlements, flexible hours and sick leave, which can be accessed to care for dependants. Currently, an exciting range of flexible work practices are under consideration in the next enterprise agreement. Paid maternity leave, for example, is an important work-life balance issue for women. Women lose opportunities to gain on-the-job training, promotion and experience largely because of absences from paid work owing to child bearing and domestic responsibilities. While unpaid maternity leave has assisted many women in returning to employment, the low levels of paid maternity and parental leave still affect the duration of absence and ease of women’s re-entry to the work force.
My government is very proud of the fact that it has increased the amount of paid maternity leave in the NTPS to 14 weeks and, in that, we led the country. The Territory has the longest average hours of attendance at child care centres, occasional care and vocational care service, and this is due, in part, to high full-time employment levels in the Territory relative to other jurisdictions.
Although responsibility for child care is across all levels of government in Australia, my government is largely responsible for regulation in relation to child care policies, procedures, facilities, staffing and licensing. By comparison with other states, the NT continues to maintain relative affordability for centre-based child care services across all income brackets. This is, in part, due to payment of operational subsidies. My government has increased the Territory subsidy for each child. We have also provided funding to support the development of a Child and Family Precinct in Katherine and established a Community Liaison Unit to identify community needs. Additionally, we have developed a work force strategy to assist the training and development of early childhood staff so that quality child care is available.
In recognition of the importance of this subject to the private and public sectors last week, the Office of the Commissioner for Public Employment and the Territory Chamber of Commerce co-hosted a conference examining a variety of practical issues surrounding the topic of work-life balance. At the conference, our Commissioner for Public Employment, John Kirwan, launched Managing Work-Life Balance in the Northern Territory Public Service, a policy and implementation plan as outlined by the minister in his speech, which will result in agency action plans for work-life balance, resulting in a better public service.
The Policy and Implementation Plan will first be piloted across two agencies, including my own department. In conjunction with the conference, the Commissioner’s Awards for Equity and Diversity featured a commitment to work-life balance as a special category award. Eight nominations were received from agencies throughout the Territory public service, and initiatives range from flexible work arrangements such as job-sharing to a return-to-work program and career self-management.
I am pleased to acknowledge the Shepherdson College Community Education Centre as the winner with their initiative Creating a Flexible, Supportive, Successful Workplace. From 2001, the college has undertaken a series of initiatives to improve outcomes. The most successful of these have been the strategies to attract, recruit and retain qualified and motivated staff. The college has increased its component of indigenous and male staff in line with both local community concerns and national issues in education. The provision of flexible work options, including work from home, part-time work, support for specific education needs of all staff, and support for health needs have contributed to substantially reduce staff turnover, which has resulted in higher enrolment, attendance and improved student outcomes. The work-life balance outcomes demonstrated by this initiative are far reaching and cover non-traditional working arrangements such as working from home and child-care assistance as well as partnership arrangements with the community to improve outcomes for both indigenous and non-indigenous employees.
I am delighted that my government is acting to create family-friendly workplaces that will benefit both men and women, make the Northern Territory government an employer of choice and act as a showcase of how effective and successful workplaces should operate in changing our environment. I congratulate the Minister for Employment, Education and Training on this terrific initiative.
Mr WOOD (Nelson): Mr Acting Deputy Speaker, I find it a very interesting statement, especially the opening remarks made by a Labor minister. The minister comes across with an opening statement that the concept of work-life balance recognises employment commitments that may relate to the family, education or to general health and wellbeing. I would have thought that what we are talking about today should have always been part of Labor Party policy, not something new. In fact, is it not the case that eight hours work, eight hours recreation and eight hours rest are very fundamental to the family and general wellbeing?
Mr Stirling: Do not educate me on Labor history.
Mr WOOD: It is only a short history lesson. Wasn’t this the very core of Labor policy?
Mr Stirling: I wrote more than you ever read.
Mr WOOD: Thank you, minister. Does this statement today reflect the possibility that Labor and unions have lost sight of those core principles since those days, got too mixed up in political and academic rhetoric and forgotten the families and their workers?
You would think that an employer of any political persuasion who cared for his workers and wanted to make sure he or she had loyal and happy workers would have naturally tried to include flexibility for those workers. We always need to realise that, even in our jobs as politicians, we need to look after the workers on whom we depend so much to help us in our political life. I would be the first to say that I am not always as responsible and mindful of the needs of my workers as perhaps I should be, and have to cover my failings with extra lunches to thank them for their patience and hard work.
Whilst I support looking after workers, this has to be balanced, especially within the public service, in making sure we are providing an adequate service to the public. So while the government may offer all these flexibilities in its balanced work and life program, who is making sure that consistent service is being provided by the public servants? If I ring up at lunchtime or at 4 pm, will I have someone to speak to or will they say that this week the person is working from home or having a career break, or involved in the keep-in-touch scheme, or having a cultural floating holiday? In other words, is the balance of work and life balanced too far one way so that the public service that people expect is lessened by this new approach? Will recorded messages now become the normal response when you ring up?
Do we need all these options in the first place, or could not the existing ones already in place, such as flexitime, be sufficient or at least broadened? Could, for instance, a supervisor be given the ability to make decisions based on circumstances at the time, or is it the way of the public service that everything has to be in little neat partitions or classifications? Will we need a new Department of Balance? I can see this as a title for a new Monty Python movie. Will we then have a Minister for Silly Walks, too? Don’t we have to be careful that we do not end up losing the plot and making things over-complicated? For instance, if public servants have the right to have a floating cultural holiday, will they be working on picnic day when no-one else is at work? How could that work?
Minister, whilst I agree with the sentiments, the object should be to keep things simple. This statement seems to be making a bigger bureaucracy, more issues to put on the table at enterprise bargaining, a more complex work environment, and more management issues. Yes, we have to look after our workers, but provision of service is still important. Flexibility is good, but could you build an LNG plant if workers in the private industry had all these perks? I doubt it. Perhaps we should remember those who work in private industry are the ones who keep the economy going.
Yes, we need to look after families and workers. Perhaps we should be looking at those who are forced by the contract system to work 60 to 80 hours even though they might, in theory, be meant to work 40 hours or less. They are the ones who need flexibility because it is the contract system of employment that causes stress. They need to have a balanced life, but are forced to be productive by working long hours. Their contracts might only last three or four years and they have the fear of losing their jobs. They have difficulty securing a mortgage for a house, and these are the people who need some relief.
It is a nice idea, but it is too complex. Let us keep it simple: look after the workers but do not drown them in complexity. Use common sense managers rather than more forms to fill in. Yes, we need to balance work, life and families; it is important. However, let us keep a balanced approach.
Ms LAWRIE (Karama): Mr Acting Deputy Speaker, this evening I add my support and congratulations to the Minister for Employment, Education and Training for delivering this groundbreaking ministerial statement on balancing work and life in our Territory public sector.
It has certainly been Labor history to make progress in the conditions of people’s working lives. In the new millennium, it is described, in a sense, in the balance of work-life. The conference on work-life balance last week was quite successful and much lauded.
It shows that this government takes leadership on issues that are central to many working people, whether they have family commitments, carer or elderly commitments, or they are active participants in the broader community life, there are always a lot of factors that put stress on people’s ability to work the hours. Increasingly, since the 1980s, we have seen the expectation in growth of working hours throughout the country. We used to know something called the 38-hour week. It is very hard to find anyone in the private or public sectors now who is working a 38-hour week.
It is good to see governments grappling with trying to recognise the need to reduce long working hours so that people have that much healthier balance with their life in having time to spend in the community and with their families, and to get the real sustenance we all derive from a well-balanced life. It seems somewhat hypocritical, however, for politicians to be debating work life balance when often our lives fail that test indeed.
I am a Generation X-er to whom the minister referred. I grew up in an era in which I do not accept that you have to commit your entire life to work. I have seen that in previous generations. I have seen the absolute commitment to work, but I do not think wanting to find a balance means that you are less committed to work; it just means that you are, perhaps, smarter in how you approach the issues of employment and your broader responsibilities in life outside of the workplace.
I had the experience in the mid-1980s of watching industries reform hours of work. I was part of a restructuring program that introduced flexible working hours into the private sector. The member for Nelson should have a look at some of the advances in awards in the private sector because there are quite a lot of flexible working hours that were introduced throughout Australia’s private sector in the 1980s.
Indeed, I took a case before the Australian Industrial Relations Commission on a flexible hours test within an award to introduce four-day rosters in a particular workplace and happened to win that case. It was argued, soundly, that some workplaces can lend themselves to shift work that reduces their working days from five down to four. Indeed, we were able to prove through the good, hard work of the workers in that workplace that they could be just as productive, just as effective and deliver a quality product in that private enterprise in a four-day working week.
The employers fought that every step of the way. Interestingly enough, elsewhere in that workplace they had introduced a four-day working week for a different section of employees. They just could not bring themselves to see an initiative taken from the work floor in terms of a four-day working week. Employees took that initiative and I took that case on for them. The commission, in its independence, found in favour of the employees and they have a four-day working week. It has been introduced without any drama, and certainly made the three days off far more of a balance in people’s lives.
In a four-day working week, you push your working hours to a 10-hour shift, which is still just under the 12 hour maximum recognised in all work studies as being the maximum ideal. Anyone who has had a look at employment studies knows that if you work beyond 12 hours, you are really completely ineffective and damaging your health. So pushing up to a 10-hour working day, whilst it is one of those long days, the compensation of an additional day off a week, a third day off, is very attractive to many people. It means they can have a significant outside-of-work life. The Generation X of which I am part is more and more attracted to this type of flexible working hours scenario, and I congratulate the minister for indicating that the public sector will pilot many of these initiatives, will have a look at how flexible working hours can be enhanced.
I facilitated a scenario in the public sector recently whereby a single parent with five children wanted to reduce their working hours so that they could be there for the children after school. There was a 20 year commitment in the public service in a particular role that would have allowed flexibility for a reduction in work hours to that point. At the middle management level, there was a desire to knock the request back, and I have to say, to their credit, the CEO on the advice of OCPE, I believe, recognised that it was a very reasonable request to work from 8.30 am to 2.30 pm and the reduction in hours, flexible working hours, was introduced for the public service employee.
I urge managers of divisions and units within the public service to embrace the innovation that exists within workplaces for flexibility within work hours and the recognition that you gain a great deal in productivity and loyalty from an employee who has had their circumstances taken into account. When they have put in many years of work and commitment to an enterprise, surely it is a reasonable exchange of loyalty to recognise that people’s lives often move in peaks and troughs of varying ability to perform in hours at work. There should be recognition that you take the good times with the bad with your employees. If you give the flexibility of accommodating their needs during their bad times, you will find that in good times, they well and truly respond and, in turn, give more back.
Productivity does not need to drop at all with the introduction of a range of initiatives. Indeed, many international studies have shown that productivity can be increased by flexibilities within the workplace where you are treating your workers with dignity that, often, a range of accommodations can provide.
I look forward to the public service grappling with the issues of work-based child care, for example. I have participated in a few feasibility studies, again in the private sector, that look at workplaces with 800 and above employees with work-based child care. Whilst it was an issue that was around in the early 1990s, it seems to be an issue that has slipped off the national work agenda somewhat. I encourage the public service to look at that as part of a promotion of effectual and family-friendly workplaces.
It is, as you heard the Chief Minister say, very much a reality in the Territory that we have a lot of people confronting issues around child care. The average age of a Territorian is 28 years, which falls very much in the breeding years, so whether they are a single parent or a dual parent, you often have the issues of child care as a barrier to employment progression. If you can make child care accessible, and accessibility comes in the sense of a work-based child care system, you are opening up a very attractive working environment. You will find many people attracted to applying for work in that area where the advantage of work-based child care exists.
I know, for example, the Defence forces are very good with issues of work-based child care. Large Defence institutions throughout Australia provide on-site child care and neighbourhood houses that have programs and activities for after school care. That is seen very much as a plus for Defence families.
I welcome the minister’s statement that we will support employees in balancing their work and life commitments. A background in caring makes me attuned to the needs of a whole range of people in our community who are caring for relatives or friends who either have an illness or who are aged and frail. These carers often struggle economically because there are far too many barriers existing to full-time employment and very few employers are willing to embrace the flexible issues of job sharing or part- time work.
I encourage the government and our public service to show leadership in providing these flexibilities. Job sharing does work. It has been proven to work, just as part-time employment is a very effective way of providing high productivity during peak workplace periods. We all know that there are certain tasks and certain times of the day when you could do with another set of hands on deck, so to speak, and part-time work provides for this. It is a very economical option for the employer. I encourage the government to identify the role we can play in being far more flexible in how we create employment positions within the public service.
I congratulated the minister previously in the House for providing the opportunity for our over 65s to continue in the public service. These are people with phenomenal skills and they have a great deal to add to our employment picture. They are often the leaders, teachers and trainers in our workplaces. To have been forcing them out of the public service in the past was erroneous. It is terrific now that under the changes in public service employment conditions, they can stay on if they wish. As we know, Australians, through our healthy lifestyle, are living longer and wanting to participate in the work force longer. Where that is a person’s wish and we have a government that embraces that, it is a positive move.
I congratulate the minister on the six-point implementation plan that will set many of these objectives into action. If you simply have a policy that does not have any implementation attached to it, you will have the status quo prevail. The good news in this statement is that there is an implementation plan. The Chief Minister did say two agencies will be piloting the introduction of the work-life balance policy.
It will give everyone the opportunity to have a good look at what aspects of it are feasible and what aspects of it could be refined, and then what should expand through the public service. I congratulate the CEOs of the departments who have put their hand up to pilot the work-life balance policy. I believe that they will become lead agencies in our public service.
I would like to see more opportunity for home-based work within the public service. We have the technology these days to allow for more employees to be outside of the central workplace undertaking work on a home-based scenario, whether that is part-time home based and part-time in the workplace, but those flexibilities are highly useful to allow people to meet various commitments. There is no reason why, for example, in the industry I came from as a journalist, I could not create and file a lot of my work from home. As a reporter, I could have worked home-based if the policy had existed within the system. For the sub-editing aspects of my work, I would had to have been in the workplace, but I use that as an example that there are industries and jobs that lend themselves to being home-based by their nature, whereas we know that for some, such as nursing, you have to be at the coalface and in the workplace.
Career breaks is an essential issue, particularly for women. As we know, women move in and out of their career as a result of child birth. It has been a real block in the past for a lot of women who have had to leave their career, often at a critical point, and take time out. Looking at the opportunity to improve career breaks so that we are removing disadvantages will be welcomed by many women.
I have a great deal of respect for our government’s initiative for paid maternity leave of 14 weeks. However, I encourage the agencies to have a look at the opportunity for that to be described as family leave. Families are far more flexible these days, and baby rearing is not just confined to women anymore. We have many examples in our society where the fathers are the ones who opt to stay at home and rear the baby. I am looking forward to some good assessment of how family leave could work within the public service initiatives that we hope to see flow from this new policy.
Further, I congratulate the minister on looking at a whole range of work-life balance options that include voluntary reduced work time, compressed working week, preferred rostering, which the minister said is being used by the Western Australian Health Department, and wouldn’t that be a welcome initiative in quite a few of our rostered workplaces such as police and the health areas? I have worked shift work and I have had to arrange rosters and I know how incredibly difficult it can be at times to create rosters that meet your employees’ needs as well as your workplace output needs. Interestingly enough, if you go to the extent of consultation that often requires just a little bit of extra effort, you have far better rosters and you have far happier workers and therefore you get a reduction in turnover of worker at that workplace.
In respect of encouraging a family carer’s room, you have heard me talk in the past about looking at the issues of child minding within the workplace, and there are a range of steps that can be taken apart from the family carer’s room. Obviously, facilities for nursing mothers and looking at work-based child care feasibility, particularly in our very large public service office blocks. When new office blocks are being built, why aren’t developers looking at the opportunity to incorporate into a section of a floor work-based child care? I can assure you that people would be snapping up that opportunity. I have seen it happen elsewhere in Australia.
Looking at the various different holidays and day options, volunteer days is really recognising that we are a diverse society. We have diverse needs and being able to incorporate that into a workplace is a wonderful initiative, and I congratulate the minister, OCPE and the departments for embracing the opportunity to see how that can fit into our public service.
The Territory is a wonderful place to live. Many of us are here for lifestyle. A lot of my constituents have boats and love to go fishing, and having the opportunity to marry your work commitments with your enjoyment of the Territory’s great lifestyle is a terrific initiative. It will go a long way to retaining our public servants and to encouraging more people to come and live and settle in the Territory. The better policies we have implemented within our public sector, and the leadership that this statement shows that we are embarking upon, will do a great deal to enhance our productivity and our attractiveness to many employees throughout Australia.
At the end of the day, many people are realising that money does not compensate for the loss of your ability to be an active member of a family or community. I see many volunteers in my electorate who need the opportunity to have time off from work, whether it is to take the NT school hockey side on a trip to Canberra or to arrange a fund raising event, they could not do that in a restrictive work environment.
I encourage the minister in the good work that he is doing to implement a working environment in our public service that means that Territorians can participate far more in the broader rich, diverse community life that we enjoy here.
Ms CARTER (Port Darwin): Madam Speaker, what an interesting speech we have had from the minister here this evening. It is entitled Balancing Work and Life in the Territory Public Service.
Working conditions in the Northern Territory public service are very important. However, this statement is surprising in number of ways. First, it is incredibly short, given all the problems that we face in the Northern Territory public service. Then, even more surprising is the fact that it is quite blatantly a rehash of the Flexible Work Practices program that was implemented by David Hawkes, the Commissioner for the Public Service, when he held that position in 1997. I know he introduced that because I was working in the public sector at the Work Health Authority. We were particularly interested in these workplace issues and I remember it very well.
I was very surprised last night to read this statement and realise what a substantial rehash it is from what was introduced here exactly seven years ago this October.
I welcome the statement because what it is really doing is that, after this Martin Labor government has been in for over three years, we all know that morale in many areas of the Northern Territory Public Service is grim; in nursing in particular. I know that because nurses tell me, and you know that, and particularly the Minister for Health knows it because they conduct exit interviews with staff, and staff tell their senior people how unhappy they are working in the Northern Territory public sector.
You have done this and I know why you have done it: to stick a bullet up certain managers and to get them to start thinking about the retention of staff. I do applaud that effort to get managers to think about putting in, as you say, a work-life balance.
All of the legislative abilities through the Public Sector Employment and Management Act of 1993 have been in place now for 11 years. The problem that we face at the moment is that there is no energy in the public service, particularly in management, to embrace the fact that they can offer flexible working conditions for their employees. As we have heard from a number of speakers tonight, that is particularly important for women, which of course reflects significantly on our ability to retain nurses.
There is poor morale. You know it; you cite it on page 3 of your document where there is a graph that represents the results of the survey that has recently been done in the Northern Territory Public Service. Of the respondents, 32% said that when they went home, they felt stressed. We are well aware of the fact that there are significant levels of stress in the Northern Territory Public Service.
Let us look at what is on offer. If you look at the old version, the 1997 or seven-year-old version, David Hawkes, who was the commissioner at that time said, and I quote:
What does the minister have to say in his introduction? Something pretty similar, and I quote:
Very similar statement, reflecting what is available to the public service at that point in time and it remains the same today.
One of the reasons I am highlighting these was very evident from the member for Karama because, once again, she said the word ‘congratulate’ about 10 times during her response to this statement. Congratulating the minister, and I am quoting her, ‘ground breaking’ innovations and initiatives and a new policy and this government takes leadership. Well, it is all old news, quite frankly, member for Karama. It has been around now for 11 years, the Public Sector Employment and Management Act, and the ability to do these things has been there for some time. Certainly, managers need to pick the ball up and get cracking on it.
If we look at the old version, the David Hawkes version of 1997, and look at the benefits of flexible working conditions, we see that the benefits for the employee are listed as: satisfaction from a balanced lifestyle, reduction of stress, retention of work skills, blah, blah, blah. For the employer: increased productivity, staff retention, reduction in staff absenteeism. If you go to the new version, today’s version, on page 6, there is a list that I have cross-checked and today’s statement repeated the same sort of things that were evident seven years ago in the David Hawkes version. There are many similarities in the two documents.
With regards to the flexible options available to staff, if we look at the old version, on page 3 it starts to go through these and, if you reflect on what the member for Karama has just told us, you will notice a startling resemblance to her new innovative ideas and initiatives to what was written about seven years ago. We have part-time employment, job sharing, a variable year work, career break schemes, short-term absences for family and community responsibilities, home-based work and flexible working hours. Goodness me! How new is that? How innovative is that? Not very at all. Good ideas, valuable ideas, things that should be done, but they are not brand new, so do not take credit for that.
With regards to the action, what sort of action should we take? If we go to what was available seven years ago, the NTPS, under the very capable leadership of David Hawkes, issued a series of information bulletins, and this is Bulletin No. 9 of 1997. In it, David Hawkes lays out all the options that I have already mentioned, and then he has a heading How to Manage: Management of Existing Arrangements. This is the action phase. He deals with the procedures for implementing this, how to have flexible work practices through the key elements of leadership. I will quote here:
The next thing that has to happen is they need to collate employees’ opinions. It says they need to consult and communicate with all employees through, for example, focus groups, questionnaires, formal committees and informal staff meetings. Then they need to decide on suitable options and circulate the CEO’s decision to the rest of the department. There is the action plan that was attached to the 1997 version of today’s statement and booklet. Of course, on pages 6 and 7 of the new version, we have similar action from this minister. This is all seven years old and it is nothing new.
At page 23, if you are looking for something new, it is right at the back. It is the second last page entitled Options for the Future. This sounds pretty good. These options include: annualised hours where people can bank up time in order to get more flexible working hours; reimbursement of child care costs for work and travel outside normal hours; half-pay recreation leave; staggered retirement; floating cultural holidays; and a volunteer day for work with a charity. That sounds great, doesn’t it? Then you read the small print, which is not all that small because it heads it up and says:
Madam Speaker, as you can see, that is the escape clause and, by golly, it’s a whopper. This is the only new stuff in seven years that this government’s been able to come up with and there is a whopping great clause to let the NTPS and the minister off; you are not to really get your hopes up too high because we may not very well do any of these. There it sits, tucked at the very last page. That is disappointing.
There is nothing new, but I hope it sticks the proverbial rocket up certain people to get them thinking about the need for flexible working arrangements being offered because staff are crying out for this sort of thing.
The fact that we do not have flexible working arrangements in many nursing areas is causing problems, and I am going to talk about nurses in the 10 minutes I have left because they form the largest group of professionals within the Northern Territory Public Service. They are the biggest single group and they are very important.
Recruitment of nurses, for example, is incredibly important. As all members know, there is as national and international shortage of nurses, which means that we have to be smart and savvy and attractive to nurses from around this country and overseas. We have to market the Northern Territory as a place to which they want to come and work. One of the things nurses will be looking at is what sort of working arrangements there are in the Northern Territory.
When you talk about recruitment of Australian nurses, you must be very aware of things such as the average age of an Australian nurse. It is incredibly concerning to realise that the age of the average Australian nurse sits somewhere around 44 years. The problem is, of course, that with the aging of the nursing work force, there is not this wonderful group of young nurses in their 20s bounding into the hospitals to look after patients and earn a dollar.
Instead, there is a more mature group of nurses and one of the features of this group of nurses is that they have, generally speaking, significant family commitments. When they are looking for a job, they are looking for a job that provides them with a working life that allows them to provide care to their families as well as to the patients at work. This is why we need a work-life balance and flexibility. Once again, I congratulate the minister on the statement. It looks great. Let’s hope that in another 18 months, we can see that it is having an effect on the recruitment of nurses to the Northern Territory.
Recruitment is one thing, retention is another. It is the retention of nurses that is causing the biggest problem. They may come, but they do not stay. It is a huge disappointment. There is a range of reasons why nurses do not stay in the business in the NT and, Madam Speaker, with your support, I am going to touch on some of them, even though I will concede to those opposite that they do not fit neatly into the statement tonight, but it is an important issue and it is an opportunity for me to speak on them.
One of the first points is morale. If we have flexible working conditions with regards to hours, morale is helped some way. Unfortunately, morale is poor in a number of areas in nursing. We only have to back through the newspapers over the last six weeks to pick up some of these issues. Here we have a letter, written by name and address withheld, dated 4 September, and I will quote:
This person concludes with:
A few days later, we get a response from Dennis Blackford, Branch Secretary of the Australian Nursing Federation NT Branch, and in his response, Dennis says:
That is the issue of bullying.
Occupational Health and Safety is another matter raised in this strategy, and particularly issues of being tired and making mistakes at work. In the last few weeks, we have learnt about a number of issues of violence against nurses in the NT. In the Northern Territory News, on 28 September, a couple of weeks ago, there was the very sad story about Margie McLean, who some of you may know, I certainly do know Margie, who is an amazingly dedicated, long-serving nurse, an inspirational person to know. The heading is ‘Drunk woman attacks remote area nurse’, and the comment from the paper is:
There are problems with safety in the remote areas. At Royal Darwin Hospital last weekend, on Sunday morning, we had an incident where a mentally-disturbed man tried to injure nurses with scissors. A friend sent me an e-mail, and naturally I removed the identity, that said:
So there we have a staff member at Royal Darwin Hospital’s Emergency Department expressing serious concern about the morale of staff with regards to Occupational Health and Safety at Royal Darwin Hospital at the moment.
Over-work is an issue, again, that you could read into this minister’s strategy. Unfortunately, due to the lack of staff in, I would argue, just about every nursing quarter of the Northern Territory at the moment, the chances of being able to implement some of these strategies are a bit slim. Classic examples at the moment of over-work have been Port Keats, or Wadeye as it is known, a large Aboriginal community, the sixth-largest in the Northern Territory, which had to close down its services a couple of weeks ago, except for emergency services, caused by a lack of staff. We have had Alice Springs Hospital, where we hear excuses like Rotavirus and pneumonia and things like that. I had a nurse ring me at 7.30 this morning from Alice Springs Hospital who told me that the rate of overtime is shocking, to use her word, and that beds have been cut due to a lack of nursing numbers. That is the stress caused by over work and difficulty, I would suggest, in rosters, given the amount of overwork that is having to be done. At Royal Darwin Hospital, overwork …
Ms CARNEY: Madam Speaker, I move that the member be granted an extension of time.
Motion agreed to.
Ms CARTER: Thank you, Madam Speaker and members; I shall not be long. There have been a couple of items in the paper with regard to overwork and lack of staff at Royal Darwin Hospital recently. One was on 23 September: ‘Tot gasps on as hospital calls fail’. These are calls to the emergency number late at night, and the end result is that no one can answer the phone. The other one is from 3 October and it says, ‘Nine hours to see doctor: RDH slammed’. Once again, the reason why it has taken so long for someone to see a doctor is invariably a lack of staff. That little kiddie had to wait nine hours and eventually was admitted to hospital, so it was definitely a sick child. These are illustrations of an under-resourcing of staff, staff are overworked and these are the outcomes.
With regard specifically to the minister’s booklet Work-Life Balance in the Northern Territory Public Service, there is a significant lack of flexibility in employment conditions offered to nurses. There is very little permanent part-time work available or job sharing. Classic examples of this are at the Palmerston and Casuarina Community Health Centres. As I mentioned before, the average age of a nurse is in their 40s. Many have children and need to perform duties as a mother and a carer, and they would desperately like to work part-time or to job share. Conversely, we have a significant shortage of nurses suitably qualified and experienced to work in these community health centres. The end result is lots and lots of vacant positions because the nurses do not want to work full-time and, yet, the managers insist that they do work full-time. I am personally aware of this, as I have heard it from staff.
I read from page 3 of the new booklet Work-Life Balance:
This is the Northern Territory public sector:
That is an indictment on this government because those numbers are so low. Yet nurses do want to work part-time and job share. They are living in the community, they want to work and we need them.
I encourage the minister to use this as I hope he will, and I am sure he will, to work with the managers in the Northern Territory Public Service. Please speak to the Minister for Health on this. Please tie a ribbon around one of these books and give it to him because the Health Department desperately needs it. The booklet addresses piloting in a couple of areas. Please pilot at one of the community health centres. Please let the nurses enjoy the flexibility that is offered and has been on offer in the Northern Territory for the last 11 years.
To conclude, Madam Speaker, and I quote from page 3 of the minister’s booklet:
Quite frankly, at the moment, in our dreams. It is over to you, minister, and I wish you and yours all the best.
Mr KIELY (Sanderson): Madam Speaker, I thank the minister for his timely statement. I will pick up from where the member for Port Darwin left off. The member for Port Darwin’s contribution showed us why we need this policy now. All the points she raised are addressed in this policy. She alluded to flexible working conditions introduced some seven years ago, which, as we kept on hearing from the opposition, were the David Hawkes’ flexible working conditions. It was not David Hawkes’ policy; it was NTPS policy. It was NTPS policy of that time, just as today we see work-life balance in the NTPS. These are two policies, one building upon the other, applicable to the NTPS.
If you do any research on this, pop in to the web site, type in work-life balance, and you will see something like 400 000 plus entries. Work-life balance is not some new product that has been dreamed up out of OCPE. Work-life balance has been going on for quite some time. There is a great body of evidence around the place that supports why we need it.
If we look at our own evidence at page 3, from which the member for Port Darwin just quoted. I put it to you that the policy from seven years ago did need revisiting, does need revisiting, and has been revisited by this government and the NTPS as it stands today. The take-up rate for certain areas of flexible working conditions has been low. We have to ask ourselves why. That is what this policy is all about: it is asking why and addressing the question. It gives an indication of why, on page 3 once again, and I do not know why the member for Port Darwin could not pick up on it: 32% come home feeling stressed; 40% have difficulty in finding time for themselves; 25% for whom working commitments prevent reasonable time; 27% take work home; for 44% workload is unpredictable. That is why we are here today debating this statement. Surveys have been done and we have found that the policy of seven years has not been picked up as we would like it to be. What are we supposed to do - just roll over? Or are we supposed to say ‘Let’s work on this thing. There are some good ideas in here and let’s get to it’?
The member for Port Darwin said there was a big out clause in fine print, but it is actually the lead on the page headed Options for the Future. Of course, the NTPS does not commit to them because they have to be tried. When I was involved in looking at work-life balance issues in the public sector, I always worked on the principle that they had to be cost-neutral.
Ms CARNEY: A point of order, Madam Speaker. I draw your attention to the state of the House.
Madam SPEAKER: There is no quorum. Ring the bells. There is a quorum. Continue, member for Sanderson.
Mr KIELY: I would like to thank the member for drawing that to our attention. Clearly, flexible work practices seem to be working in the House if we have to call a quorum. Perhaps, member for Karama, you were incorrect about politicians not be able to be flexible in their attendance.
Ms Lawrie: Correct, member for Sanderson.
Mr KIELY: Thank you.
Ms Carney: Have you finished?
Mr KIELY: Pardon?
Ms Carney: Have you finished with your banter?
Mr KIELY: No. I use banter; I do not use vindictiveness. I do not rip into the public service. I like working with the public service.
Madam Speaker, when I was tied up with work-life balance aspects in my role in the public sector, I always worked under the principle, with my executive team, that it was supposed to be cost neutral.
We heard the opposition spokesperson for employment, education and training, and I think he is also the opposition spokesman for the public sector, say: ‘You have not funded it. How is this going to be done?’ It demonstrated to me a great misunderstanding of what these policies are all about and how they work. I do not really think you fully understand …
Ms CARNEY: A point of order, Madam Speaker. I again draw attention to the state of the House.
Madam SPEAKER: There is no quorum. Ring the bells. Continue, member for Sanderson.
Mr KIELY: Just as I get into full slide, things like this happen.
Once again, I note the flexibility of this House in its approach to work, and the attention drawn to it. It is wonderful that we have flexible attendance patterns in this House. I think the opposition is more attuned to flexible working options than government, but that is just a casual observation.
The opposition spokesman on public sector employment does not know what he is talking about. He does not know what flexible work practices are about. He prattled on but did not have a clue. Flexible work practices have been working in the public sector for quite some time. It is the rate of pick up that this government wishes to address.
The member for Port Darwin said: ‘With this work-life balance, I hope it puts a rocket up certain people’. Let me say to members of the public sector: this policy is not about being punitive; it is not about putting a rocket up anyone. This work-life policy is all about making a better place to work. Small wonder the member for Port Darwin attracts all the disaffected people. Does she come to the minister and say: ‘We have these issues’? No! She lets it fester because it is in her own political interest. She does nothing to do to help these people she suggests come to her with these issues. I call on the member for Port Darwin that, when someone comes to her, to address the issues rather than letting them fester because they are issues that bring down morale in a workplace.
We also had the member for Nelson, and it was a dinosaur approach to productivity gains within the workplace, say if we bring in work-life balance, who will answer the phone at four o’clock? If I phone at lunchtime, will I be told that someone is at home because it is their day off? It doesn’t work like that. The whole idea is a reasonable and sensible approach to work-life balance, working with the supervisor. People have to negotiate with their colleagues in the workplace. One of the principles of an effective work-life balance program in the workplace is that the work has to be done. You don’t say: ‘Righto, you’re off. The work doesn’t get done’. The work has to be done. There are to be no productivity losses. Smart workplaces work together and ensure that the phones are answered at lunchtime, make sure that someone is in the public contact area at four o’clock. It was a rather dinosaur approach.
The member for Nelson gave the Deputy Chief Minister, who has a stronger grounding in the Labor history and values than the member for Nelson, a lecture on the history of the labour movement. I should inform the member for Nelson, because he did not pick up on it, that in 1972 or 1973, it was Gough Whitlam’s government that introduced flexitime to the Commonwealth Public Service, the first one to do it.
Member for Nelson, if you are going to give history lessons, let’s give it all away. Let’s have a look at how successive Labor governments have been working to improve the lot of workers.
Dr Burns: He means the DLP!
Mr KIELY: It was the Whitlam government that introduced maternity and paternity leave. It is this Territory Labor government that has introduced 14 weeks maternity leave. Labor governments get behind workers. Why do Labor governments do that? Because they are the leading employer in Australia and it is up to governments to lead the way on industrial reform. It is government where you can show that things work. That is what this government will be doing: leading private enterprise and showing them the way that things can be done.
I have worked in private enterprise, and they have their own policies. AMP had a great family-friendly policy in Melbourne. There is a host of others throughout the country, all the larger bureaucracies in the private system as well as smaller ones that use family-friendly or flexible work practices to get by because they know that to the bottom line, it makes a difference. They know that if they retain staff, they can make a better quid out of them.
They know, that if you introduce flexible work options, you have a happier, more productive work force, and it has been proven scientifically time and again that flexible work practices are the best way to go, rather than trying to say: ‘You be here at four o’clock; you answer that phone’. There is room within the public sector to introduce these different options.
On the matter of compressed hours, years ago, when I was working for Telecom, there was a nine day fortnight, an RDO, compressed working hours. That is what we had there. It is as old as …
Dr Burns: Telegraph boys.
Mr KIELY: Telegraph boys, just about. There is nothing new in that. I brought that practice with me when I came into the public sector. I said: ‘Righto, I will work compressed hours’, and I kept my RDO by working those hours.
Look at study leave. I have taken study leave before. That is a flexible working arrangement, and that kept me in the workplace. I was a public servant for something like 16 or 17 years in the federal and the NTPS, and I stayed there because of the flexible working conditions. I had a young family.
Dr Burns: And a sense of achievement for working in the public service.
Mr KIELY: It was. It was a sense of achievement for being there in an innovative workplace. I had a young family, with the wife as the primary carer, as is the case in today’s society. She had taken leave without pay, maternity leave. She is a nurse. For her to return to work, I was able to work compressed hours and knock off at two o’clock, come home, take up the care of the children while she went to work and worked a 10-hour shift. So I was working variable hours in the workplace, she was working compressed hours and getting something like 20 hours under her belt, and that was enough to get us over the line in times of economic strain we found ourselves in as a new young family. I have had first-hand experience with flexible working practices in that area. It is timely for us to be looking at it. Just think of the letters the member for Port Darwin was reading out. If ever there was a call that it is time for us to work with the NT public sector and look at reviewing our practices and working more on them, that was it.
Other practices the NTPS has include a carer’s room. This is a great thing. I would like to see it taken up across more of the agencies. A carer’s room is not only for people coming in with kids who might be a little bit sick or anything of that nature, they are not really meant for that. Your partner might need to get off to the doctor and just needs to be with someone before they go off. They can be in the carer’s room. The whole idea is that you pick up your workplace, you slot it into the carer’s’ room and you work from there.
There is a cost because you have the cost of perhaps a terminal or a desk, but as far as keeping someone in the workplace being productive, where you could possibly lose them to a day’s sick leave or carer’s leave, what is a workplace to do? Where is it going to benefit most, by paying for a day’s carer’s leave with nil productivity out of the worker, or do they have a carer’s room where they make something like four or five hours out of that person for the day? It is tremendous.
When we talk about floating cultural holidays, I remember an instance where a person phoned in, and they were of the Jewish faith, and said: ‘Look, all these Christians are getting Christmas, but it is Hanukkah, why can’t I have this?’ I said: ‘You can! You can have that day off. You can take it on flex or you can ask for a day’s special leave’. These are the flexible approaches to work that we should be looking at, that line managers, executives and CEOs will be looking at because, with our government, through the OCPE and this plan, the work-life balance policy will be linked to strategic plans. This will be part of their daily business, and they will have to report back on it. That is the difference.
It is not like the previous government which introduced or promoted these packages but then did not follow through. This is going to be monitored by OCPE, this will be reported on, and this government will be looking for results because we know that it will, in the end, build a better workplace for all the people in the NTPS. That is what we are all about: building better workplaces, making greater career paths and a more professional workplace. The NTPS call these days is making itself an employer of choice. I hope they achieve that and become an employer of choice. This work-life balance policy will help bring that about.
I commend all those in OCPE for the work they have done, all the HR operatives throughout the agencies, the CEOs - as a matter of fact, the whole of the NTPS. It is great that they have this. I know a lot of the people who are going to be working with it, and I know the hard work that they have put in. Good luck to them.
I think of work-life balance more as work-life blending because you cannot separate work from private life or your home. It is a nonsensical argument to say: ‘Work is over there, home is over here; these two do not mix’. That is not the way it really is. You have to blend it together, so it is work-life blending if you manage to get the balance right. I practice work-life balance in this job. If I am working all weekend, the same as everyone else here, I make sure that I get the time off with my family. I make sure that I balance my interviews and meetings with people in the community. I take work home and I work from home on a weekend rather than go into the office. These are areas that we as politicians can get work-life balance. It is applicable to us and it is incumbent upon us, particularly in this job, to make sure that we practice what we preach; that we do get this work-life balance. You are more productive when you do manage to achieve it.
I do not hold with the member for Nelson’s dinosaur view of industrial relations and work-life balance. I do not think he recognises the pressures and the differences in today’s society as we have moved along. The fact is that we are all working longer hours for different reasons. He does not seem to appreciate that.
This policy is a good thing for primary carers who wish to re-enter the work and get their skills up. All round it is a win-win. It is timely that we look back. It is seven years since the last policy was introduced. That the wording is similar comes as no surprise. They are, after all, about the same thing. We have come a long way since Gough Whitlam, a Labor Prime Minister, introduced flexitime into the Commonwealth Public Service. We have come to 2004 where we have six weeks entrenched leave in the NTPS, which we never had before …
Dr Burns: Well, someone tried to take it from them!
Mr KIELY: That is right. Let us not have any mistakes; the CLP government did want to negotiate out that leave down to four weeks. Because of the distance that we have, this government retained the six weeks. The best thing was recognition that 12 weeks maternity leave is not enough, and this government introduced 14 weeks. You asked what we did for women in the work force. There is one remarkable thing for women, for families, and for men. As a bloke who has kids, it would have been great if my wife could have had that extra two weeks. I appreciate, from that point of view, the policy.
Let us see the opposition members in this parliament get behind and promote this policy. When the member for Port Darwin, who seems to get the most anonymous letters of anyone telling us how frightened people are in the public service, I do not know …
Dr Burns: Grizzle magnet!
Mr KIELY: Yes, it is like a big whinge magnet. Everyone goes to her, according to her. It is funny how they are all anonymous. Let us see her say: ‘Look, it is tough out there. What you need to do is go to your HR people, get a copy of this work-life balance, work with your supervisor, and look at a better workplace for you to be in’. That is what needs to be done. It needs the opposition behind it. We are behind it; the NTPS will be behind it. Then we will find private enterprise and the Chamber of Commerce will get behind it, too, and we will have overall a better working place in the whole of the Northern Territory.
Mrs AAGAARD (Nightcliff): Madam Speaker, I rise in support of the Minister for Employment, Education and Training and his statement on work-life balance the Territory public sector.
Around the world in the past decades, there has been a move for people to want greater flexibility in their working lives. There has been a recognition that governments and corporations need to recognise that their employees have a life and responsibilities beyond the workplace. Many people do not wish to be simply identified by their work life and seek to gain life satisfaction outside the workplace There has also been a move to recognise that people move through various stages of life while an employee, and it is important to recognise those stages in order to maintain and retain a more professional workplace.
Employers are now recognising these life stages. Their employees will be young and require greater training. There will be young married or single parents who have the issues of caring for their young children. They will have the need to take maternity or paternity leave, or care for sick or elderly parents or relatives, and then again to move to retirement.
The Australian government’s statistics on its About Equal Opportunity web site on Facts on Work-Life Balance in Australia indicate that Australian organisations are not providing enough flexibility to enable employees to balance competing work and family demands. The web site says that official statistics indicate that Australian organisations are not producing this level of flexibility and that only one in 10 enterprise agreements contain family-friendly measures; only 4% of enterprise agreements include paid personal leave; 3% include job sharing; 3% include paid parental leave; and 9% include unpaid personal leave.
Research also demonstrates that employees experience considerable stress associated with being unable to effectively balance work and family commitments, and that women are not returning from maternity leave or resigning because they are unable to combine work and family demands is expensive for organisations. The NRMA estimates that it costs $48 000 to replace a manager, $29 000 to replace a senior specialist and $12 000 to replace other staff. One in 18 male employees was working more than 11 hours a day in 1974 and in 1997, one in eight male employees was working for more than 11 hours a day. In 1974, one in six women reported feeling rushed. I am not quite sure what ‘feeling rushed’ means. In 1977, seven out of eight felt that life had become more frantic.
All of these statistics serve to emphasise a core issue that many employees in Australia are now coming to terms with as they seek to recruit employees. As both male and female workers confront rapidly changing patterns of paid work opportunities and work time arrangements, it is often those companies perceived to care about the people aspects of business such as work-life issues, for example, that are attracting and retaining the best talents.
Also, Australian government statistics say that one-third of all employed men and one-third of all employed women have dependent children under 15 years of age. However, nationwide survey data has also shown how common it is for employees with dependent care responsibilities to have to take time off work. Nearly one-third of employed care givers have claimed that care giving commitments cause repeated interruptions at work, resulted in them having to take fewer hours, or both. Almost one-quarter have taken periods of unpaid leave, 16% have taken less responsible jobs, and 13% have refused promotions.
Unfortunately, women continue to shoulder much of the responsibility for caring for dependent family members and this impacts on their opportunity to participate equally with men in the paid work force. Employed mothers with dependent children are much more likely to work part-time than employed fathers with dependent children. Fifty seven per cent of employed mothers work part-time compared to only 5% of employed fathers. Women with dependent children are much less likely to be employed than men with dependent children and unlike women with dependents who have a consistently lower participation rate than women without dependents, men’s participation rates increase with the presence of dependent children. Two-thirds or 66% of employees who took a break of six months or more were women, most of whom, 62%, cited family reasons as the main reason for the break with more than half of those having a child or children under 12 years of age; while the majority of men, 44%, took their most recent break from work of six months or more for personal reasons.
Madam Speaker, there is a wide range of benefits arising from more flexible workplaces. Some of these include, for employees: the ability to maintain employment and skills while meeting family and life commitments; retaining the benefits of ongoing employment; increased job satisfaction and performance; renewed energy and increased morale; improved well-being and reduced stress; improved skills in time management, team building and shared responsibility; increased opportunities for study; increased flexibility with caring and other personal commitments; fewer distractions and interruptions to work; and employment opportunities for those unable to work full-time.
For employers, there are also many benefits including: more efficient use of employees and increased opportunities for employees to undertake new roles; a more motivated and energetic work force because external needs are met; increased performance and productivity through improved organisational climate; reduced absenteeism and associated costs as employees can meet their personal obligations in their own time; competitive edge in attracting and maintaining skilled employees, particularly those who cannot work full-time; reduced recruitment and training costs; retaining valuable employees and reducing turnover; improving organisational health through reducing illness and stress; improving client service and reflecting a diverse client base; improving public image as an employer of choice; attracting skilled and talented potential employees; responding to changing employee requirements for how work is organised; increased organisational loyalty and commitment; reduced length of maternity leave; increased rate of return from maternity leave; maintaining and sustaining organisational knowledge; and reduced workers compensation claims.
It is clear that it is a very good idea to introduce work-life balance into our public sector and into corporate Australia because the benefits are important for both employees and employers.
The minister’s statement and the accompanying booklet outline the many initiatives that the government has or will put into place to improve the work-life balance of our 15 000 Northern Territory public servants. It covers flexible working hours, home-based work, job sharing, part-time work, career breaks, and part-year employment, which enables employees to take a number of weeks in unpaid leave each year.
It also covers short-term absences for family and community responsibilities, as well maternity and paternity leave, the Territory being the leader in paid maternity leave with 14 weeks paid leave for NTPS employees.
Around 9500 public servants are women and, on average, 300 women a year in the service have taken maternity leave over the past five years. These women and their families will undoubtedly welcome the many measures for families, such as home-based work. Apparently, the OCPE conducted a work-life balance survey in November 2003 and 4.7% of staff surveyed indicated they had used home-based work arrangements, and 57.6% indicated that they would have used these arrangements if available. The survey also indicated that 30% of staff make use of flexible hours, and a further 50% indicated that they would use these arrangements if they were available.
I commend the Health and Well-being programs, which can be used, including the provision of a gym in the workplace or subsidised gym membership. One of the things that all of us need to look at is attaining or retaining levels of fitness, and this is an excellent idea. I particularly commend the parental leave seminars and information packs for expectant parents, the family carer’s room in the workplace, which enables employees to continue to work whilst minding a child or family member when other care arrangements break down, facilities for nursing mothers and child care referral services.
Our public servants are very important people who put in place the policy of the government of the day. It is important that we recognise the needs in their lives for work-life balance, and I believe that the Policy and Implementation Plan as presented by the minister today works towards meeting those needs.
I congratulate the minister and the Commissioner for Public Employment, Mr John Kirwan, for their work on this policy, and commend the statement to the House.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I thank the members for Greatorex, Fannie Bay, Nelson, Karama, Port Darwin, Sanderson and Nightcliff for their comments.
I will begin with the member for Greatorex, the first speaker on the statement who told us that public servants are angry and the Chief Minister has her fist around public servants’ throats. I suppose if someone had their fist around my throat, I would be somewhat angry, too. It is bizarre for the Chief Minister to have her fist around the throats of 15 200 people all at one time, but nonetheless, that is the view of the member for Greatorex.
He also said we have created a culture of fear, that public servants are terrified to speak out and that we have politicised the public service. This is what I see when every time I go down to DEET and walk through the workplace and say g’day to people: they all run to the corner, cowering in fear, terrified to speak to me because we are such a bad government.
He said the Chief Minister promised something about no job losses and we have lost 1500 public servants. When we came to government in August 2001, the public service stood at 14 600 people. We have worked to meet our commitments of 100 extra teachers, 150 extra police and 75 extra nurses. We have had increases in Community Development and other areas of Health, such that figures now are 15 200. I just do not know how we could ever have lost 1500 public service jobs. The member for Greatorex needs to have a little look at the facts and figures before he runs with absolute untruths such as those he has put on the record tonight.
His other contribution was about tourism, apparently being let down by the Minister for Tourism, and why are we doing this now. He was critical of the initiatives as well, but failed to offer any himself in terms of what he or the Country Liberal Party government might do in this area.
The member for Nelson’s main query seemed to be who would be ensuring service delivery was in place so that if you rang at four o’clock in the afternoon, who will ensure that the phone is actually answered when we have all these flexible work practices in place. I would have thought he would know that we pay managers quite good money throughout the public service to manage their workplaces, and they are charged with the responsibility of allowing as much flexibility as a workplace can afford but still deliver the service or the product with which it is charged.
As is often the case with the member for Nelson, he likes to have two bob each way. He spoke of support for workers in his contribution, but then claimed the policy goes too far. It is a bit hard to know whether he supports it or not, because, yes it is all good but I think it goes too far, so I think with that, he probably does not support it at all.
The fact is in the future, employers are going to have ever more difficulty attracting and retaining a work force and those organisations that do go the extra yard to offer good conditions of service, those organisations who value their employees, will prosper and it will become a requirement for business to survive, not because you need to be good and nice to your employees; they will have to provide a wide range of incentives, initiatives and moves toward family-friendly workplaces in order to have a work force at all. The number of employees coming on to the labour market year by year is going to decline markedly over the next 20 years. If you are not prepared to come half way and meet some of the needs of a changing mix and a changing work force, you will not have a work force at all and you will be out of business.
The member for Port Darwin was, I am pleased to say, generally pretty positive about it despite the fact that she kept mentioning that many of these things have been around for some time. That is true, but it does not devalue them at all. She did talk about the low rate of take-up in the Northern Territory in comparison with the take-up across other public sectors throughout Australia. One reason that hits me that there might be a lower take-up in the Territory is that it would reflect the demography of the Northern Territory. We have a younger population overall compared with the rest of Australia so that people in their younger years are prepared and want to work full-time as much as they can in those years, and perhaps it is older workers that look more for the work-life balance. That is just one reason that would seem fairly obvious to me. There may be other reasons, and I hope that the pilot projects undertaken, the quite intensive analysis and interviews with employees, might give us those reasons why we have such a low rate of take-up.
She talked about nurses being the largest group of professionals. They share that with teachers in the Northern Territory. In fact, there are slightly more teachers than nurses. Nonetheless, they are both large groups within the public sector. The average age of nurses, according to the member for Port Darwin, and I do not dispute it, is around 44 years, not unlike that of our teaching work force and not unlike that of the work force across Australia. Those points about recruitment and retention that she was talking about are very much behind what is driving this whole policy and program of renewal and encouragement to the public sector and to managers to go that extra yard and do what they can, where they can, to encourage take-up of these initiatives.
I thank the member for Sanderson for his contribution because I thought it was very valuable, coming from personal experience as a line manager in the public sector for many years. He was able to underline at a very personal level the importance of these initiatives in the workplace, and how useful they can be for the employee, certainly, but also for the agency that was able to keep someone at work when other circumstances would have meant that that employee had to miss a day or a couple of days work.
I thank the Office of the Commissioner of Public Employment and the commissioner himself for his input on this. We never went out to pretend that this is all new. I worked on flexitime in the Commonwealth Employment Service in Bundaberg in 1982. That was 22 years ago. We had flexitime in place and the ability to work that bit longer each day so that you could have a flexiday at such time as you built up something like seven hours and 21 minutes, or seven hours and 26 minutes I think it was in those days. We never pretended this is new. What is new or refreshed about it is a new approach: a pilot in a couple of agencies to really put some of these initiatives to the test to find out what will work, what is practicable in the workplace and then we take that pilot to the broader stage of the public sector overall.
In general, Madam Speaker, I thank all members for their contributions, positive and otherwise.
Motion agreed to; statement noted.
Ms MARTIN (Chief Minister): Madam Speaker, I move that the Assembly do now adjourn.
On 2 September this year, at the Holiday Inn Esplanade, I had the pleasure of launching the 2005 Northern Territory Young Achiever Awards.
These awards recognise the exceptional abilities, achievements and potential of our youth. Government is a proud supporter of the awards, sponsoring the Minister for Young Territorians Excellence in Youth Leadership Award. The Territory’s Young Achiever Awards provide us with the opportunity to promote the positive achievements and contributions of our young people and to encourage them to be actively involved in the community.
The importance of the awards to the community is apparent by the extent of local sponsorship, which is impressive. In addition to sponsorship from government and the Australian government’s support through National Youth Week, the major sponsors are the Darwin and Palmerston Sun, Channel 9, Imparja, TIO, Holiday Inn, Centralian Advocate and Airnorth. In addition, a number of organisations directly sponsor the awards: Charles Darwin University, Woodside, Power and Water, Perkins Shipping, Somerville Community Services, ConocoPhillips and Drake.
The Darwin launch was most entertaining. Jonathon Uptin from Channel 9 was the MC, Judith McFarlane from Darwin High sang the national anthem - just 14 and she has a beautiful voice - Corrugated Iron dance group gave a great performance, and it is good to see those young people achieving excellence in the arts.
Maria Scaturchio was the speaker for the morning. Maria was the winner of the 2004 Minister for Young Territorians Excellence in Youth Leadership Award and the Territory Young Achiever as well, and she certainly shows the ability she has when she makes a speech at occasions like that.
The following day, at the Alice Springs Civic Centre on the council lawns, I was able to launch the same program in Central Australia. Imparja television host Merv Castillion was the MC. Imparja is a major sponsor and Merv was joined by Frank Wade, who is the Company Secretary. Jessica Westbrook, a young Centralian woman, sang the national anthem. She is a young Territorian with a bright future. She closed the awards launch with another song and it was appreciated by all those in attendance.
Also speaking at the launch in Alice was Greg Thompson, Managing Editor of the Centralian Advocate and Jon Bourke from TIO. In Alice Springs, we were entertained by dancers from St Phillips College and their performance was most impressive. Garth Forrester, who was the finalist of the 2004 ConocoPhillips Environment Award gave a speech and demonstrated why these awards are significant. He talked about the impact it had on his life and the pride that he had and then the pride that grew in his job once he was recognised with an award like this.
The Northern Territory Young Achiever Awards program will culminate with the naming of the overall winner, the Northern Territory Young Achiever 2005, at the launch of National Youth Week celebrations on 9 April next year.
In the meantime, I urge all members to look at the wonderful and talented young people they may know and consider nominating them, or you might be able to assist others in making nominations for this celebration of excellence and achievement of our young Territorians.
Mr Deputy Speaker, I would like now to update colleagues on news from the Fannie Bay electorate. On Wednesday, 22 September, I had the opportunity to co-host a function for residents and bowls club members at the Darwin Bowls Club in Fannie Bay. Since the demise of the Arafura Bowls Club, Darwin Bowls has picked up a number of new members and is going through an exciting period of rejuvenation. As you will recall, following the sale of the old Arafura site, a commitment of $100 000 has been made to support the Darwin Bowls Club. We hope that this will enable to the bowls club to encourage greater membership and provide improved services for their members. Actually, I think that sum might be $150 000. Anyway, the get-together function was an initiative of the club to foster a good neighbour relationship with surrounding residents. I was pleased to support the club in this initiative by distributing invites and sponsoring the food.
The Darwin Bowls Club has embraced the concept of a Good Neighbour policy and is proactive in developing positive relationships with residents in the area. Congratulations should be given to the club for their approach. Thanks to the entire committee, especially Kay Cook, Russell Knight, Maureen Hartree and patron Gary Lambert for their support of this function. Thanks also to club members Elsie and Kevin Caton, Patricia and Chris Gamble, Ken Hill and Jane Barlow. There was an excellent turnout of residents along East Point Road to meet club members, including Louise and Randall Jones, Alan Anderson, Steve and Mac, and Sue Coleman.
I turn now to the Tournament of Minds. Two of the primary schools in my electorate, Parap and Stuart Park, recently participated in the Tournament of Minds at Charles Darwin University. It was held on 11 September. Students were given a problem to solve and gave up their own free time to work as a team to come up with a solution. I congratulate all students, teachers and parents involved in this event.
From Parap Primary the student teams comprised Aien Buckley, Rachel Tolliday, Lee Marie Perham, Allicia Cann, Mathew Hodgson, Lachlan Macdonald, and James Constantine. The team was managed by Elizabeth Duguid and supported by Sohum Raut, Mr Myers, Mrs Kattelus and Miss Piper along with a few mums and dads who went along. The Parap students participated in the maths-engineering section and had to make a code machine to crack a mathematical code. They successfully cracked both their codes on the day.
From Stuart Park Primary, the participating students formed three groups and gave up several lunchtimes to work on their solutions. Group one comprised Rhiannon Pazos, Myra Richards, Kristy McAway, Simone Richards, Emma McLaughlin, Emma Folley, Stephanie McCallum and Kerrie Crowfoot. Group Two was Lewis Cole, Max Budack, Jack Kelly, Brendan O’Sullivan, Makayla Earnshaw, Meaghan Reilly, Krista Bridgman also assisted by Matt Kelly. Group three was Odessa Tippett, Rosie O’Reilly, Sally Harding, Annie Piper, Sophie Budack, Zac Menzies, Asha Nur and assisted by Chris Nolan.
Also in September, I attended some of more than 70 events that form the Alice Springs Festival of the Desert. The opening street parade kicked off the festival. Several thousand people watched the event, the focus of which was the Power and Water Light the Way lantern parade. To me, the highlight was the involvement of a wide range of people, especially the 25 kids who decorated their bikes for the Decorate Your Bike competition. Connor Somerville and Anthea Connelly were the deserving winners of the competition. Congratulations to Ildiko Padanyi, who was the coordinator of the street parade.
The next day, I attended the Desert Mob Marketplace held at Araluen. This was a new event in which Aboriginal arts centres set up art and craft stalls with all items for sale under $200. I was one of the almost 900 visitors who spent a total of $43 000 in that single afternoon. Not only was it a great place to buy, but it was a wonderful opportunity to meet artists and art centre workers, and to see the huge variety or work done throughout Central Australia.
On the Sunday, I was delighted to officially open Desert Mob, a stunning exhibition of 387 recent works for sale from Central Australian Aboriginal art and craft centres. About 550 people attended the opening and an additional 4000 have visited so far, and there are still two weeks to go before the show closes. $260 000 worth of entries have been sold so far, with the total value of exhibits worth over $650 000.
Interestingly, well over half of the sales have been to interstate buyers. This is another indicator of how important Aboriginal culture is to our tourism industry. Congratulations to the team at Araluen for the success of Desert Mob including Suzette Watkins and the Curator, Tim Rollason. Congratulations also to the arts centres and the artists for their outstanding work.
That night, I enjoyed having a go at being MC at the Alice Vista Social Club. This was yet another festival event that encouraged Territory talent, and I was most impressed by the musicians as well as the upbeat atmosphere of the evening. It was also pleasing to see that Oz Opera’s La Boheme was a sell out in Alice. I enjoyed the opera so much I was very pleased to be able to go twice – in Darwin as well as in Alice, and it was definitely worth the double effort.
BassintheDust formed part of the Alice Springs festival this year. I could not attend myself, but the line up five national and four Territory bands gave broad appeal to over 1000 young people who attended the event. Congratulations to Rosie Dwyer and Jess Costar, two young people who did a lot of the work pulling this concert together.
Embedded into the festival was the SEGRA conference, the Sustainable Economic Growth for Regional Australia conference. This was the first time this annual event was held in the Territory. Delegates were able to experience the wealth of visual and performing arts that contribute to regional development – socially, culturally and economically.
There were many more events held as part of the Alice Springs Festival of the Desert. I do not have time to here to talk about Desert Song, which gathered together 2000 people in the Todd River bed to listen to indigenous musicians or the Wearable Arts Acquisition Awards, which wowed a sell-out crowd last Saturday.
However, I would like to take the time to congratulate those who put their heart and soul in to making the festival such a success: Artistic Director, Di Mills; General Manager, Jennifer Standish-White; and the Chairman of the festival Clive Scollay all put in a huge effort. Past and present committee members, all volunteers, were Steve Anderson, Robyn Van Dok, Darren Pfitzner, Stephanie Smail, Citta Williams, Marguerite Baptiste-Rooke, Athol Wark, Rachel Clements, Ellie Butcher, Diarmuid Hurlihy, Nieta Milne and Caroline Angel. Many, many others were involved, from volunteers to sponsors.
I was proud that the Territory government invested in the Alice Springs Festival with core funding of $100 000 plus free rent at the Red Hot Arts venue. We also sponsored some of the individual events such as the play Justice, which was written, directed and performed by Alice locals, and, of course, we were the sponsors of BassintheDust.
Arts are critical to the Territory lifestyle and they also mean jobs and tourism opportunities, but most rewarding is the strength of the involvement of the Alice Springs community. The festival has gained a momentum of its own and is testament to the strong and ever-growing visual and performing arts community in Alice and the Central Australian region. I look forward with anticipation to next year’s Festival of the Desert.
Mrs BRAHAM (Braitling): Mr Deputy Speaker, I, too, congratulate the organisers of the Alice Springs Festival. They did a fantastic job and we have had such growth in talent in Alice Springs.
Last Saturday night I went to the Wearable Arts Acquisition Awards. I have to admit, I do not understand how these people have such great creative ideas. The Wearable Arts were outstanding. It was really a sell-out night. There were 430 people in the Araluen Theatre to see this tremendous display by all the local talent. I have to congratulate Nicky Schonklala, the Project Coordinator, and all those who were associated, including the festival Artistic Director Di Mills and General Manager Jennifer Standish-White.
The Yeperenye Natural Fibre Award, to the value of $1000, was won by Janine (J9) Stanton. Now, how on earth this girl ever thought of this I will never know, but the whole outfit was inspired by feral animals. The headpiece, necklace, top, pants and belt were made from fibres from feral animals, including feral cat fur, dog hair, human hair, rabbit hair, camel hair, emu feathers, silk and cotton. The cats were all road-killed, found out of town and were skinned and tanned by J9 herself, and the two cat heads sat here. It was an incredible outfit and, as I say, I do not know how she ever came up with the idea of having an outfit from feral animals. She had a dog with her who also joined the fashion parade, and he was wearing an emu feather collar with dreadlock wings.
The Gallery Gondwana Recycled and Found Object Award of $1000 was a joint project of Jo Nixon, Virginia Sitzler, Sarah Hill, Steph Gaynor, and Liz Scott. This, again, was beyond my imagination. It was called Venetian Bride. It was a bridal gown, constructed entirely of pre-loved venetian blinds, all stitched together by recycled wire. If you can imagine a skirt of venetian blind parts, and even a little venetian blind as the head dress. This outfit was so stunning that it also won the People’s Choice Award, which CAAMA introduced this year as new category and a prize of $500. It was just one of the wonderful things there.
The Yeperenye Open Fantasia Award of $1000 was won by Colleen Byrnes from Sew for U. It was called Desert Summer, and it was the most beautiful outfit made by this lady, who is an outstanding seamstress. It was a silk top. It had wool slivers. It was decorative rayon and metallic thread, and it was all used to create a stunning fabric representing the sun. She has such a fantastic technique with her sewing machine that she was able to do this, and it was embellished with sequins and beads to give that desired perfect effect, and I have to admit the model look absolutely beautiful in it. It was quite an outstanding piece of art.
The Student Award was interesting, and there was a young student from Gillen who was in Year 4, a young boy. He did not win it, but I have to mention him because he entered a garment that he made after a workshop. I love the way he described it. It was untitled, but the dress was made of ‘tubular material and see-through blue stuff, an old t-shirt and small pieces of red material’. Congratulations to Sean Chalmers, his first effort as a Year 4 student in a very difficult arena. Let us hope he goes on to win it in a future year.
The Yeperenye and Travelworld Student Award plus $500 was won by Kelly Trembath, a Year 12 student at Charles Darwin University in Alice Springs. She also received, as part of the prize, an air fare to Sydney for work experience with fashion designer Akira Isogawa. It is quite a treat for her to work with this designer. Her dress was called The Ultimate Gardening Dress, and it was made uniquely from gardening hose, soaker hose and watering tin. It was a fun, abstract dress designed to represent watering the garden. She also won it last year and went to Melbourne to work with designer Alana Hill. Winning that category two years in a row demonstrates there is a future for Kelly Trembath as a designer in the fashion field.
Afghan Traders this year also had an award of $200. It was a Commendation Award, and it was won by Rebecca Koser. The entry was called By Gum. It was a dress made of gum leaves and branches, and it was absolutely wonderful. If you can imagine this flowing dress of gum leaves and the rustle as she walked. Such imagination I just do not have, and I commend it.
There were so many others that we would like to have awarded prizes, but I commend all the people who entered and congratulate them all on their imagination and creativity. It seems a shame that there is just one night when the Wearable Works of Art are shown to the general public. I hope that they are able to use those dresses in some other way as well.
I also inform members that Loraine Caldwell has started working here in our Parliamentary Liaison and Information Unit. Loraine has been associated with curriculum in education for a long time. I am very pleased to welcome her to the agency. She has been working on Celebrating Democracy Week. Year 10 and 11 students from across Australia were invited to apply for the Every Voice Counts Student Forum, which has been arranged as a special Celebrating Democracy Week opportunity for students.
Thirty-two students, four from each state and Territory, will participate. The four students chosen to represent the Northern Territory are Julia Winterflood who is from CDU in Alice Springs, Tamara White from Komilda, Eva Templin from Palmerston High, and Christopher Earl from St John’s College. At this forum, the students will experience and learn about some of the ways a citizen can have a say, express ideas, opinions, attitudes and preferences to government in our democracy. Students will also have the opportunity to meet and talk to politicians, members of lobby groups, the print media and radio, and they will gain a unique behind-the-scenes view of federal parliament and many of the processes in our Australian political system. The forum will take place in Canberra on Monday, 18 and Tuesday, 19 October as a key event in Celebrating Democracy Week. We wish these four students all the very best and I know they will have a great time in Canberra.
To finish, November this year will be the 40th birthday of the Lions Club in Alice Springs. They were inaugurated in 1964 and one of the inaugural members, Keith McEwan, is still a member of Lions in Alice Springs. He brought some literature, which he is gathering at the moment, for the celebration of this 40th birthday. The Lions Club was formed in 1964 at a dinner held at the Riverside Hotel, the old Riverside as we used to call it, and it was sponsored by the Lions Club of Broken Hill. The membership started at 23 and quickly grew over the following years to a top of 52 members. Mr Deputy Speaker, I seek leave to table the names of the Charter Inaugural members.
Leave granted.
Mrs BRAHAM: After the club grew to over 50 members, it was decided to form a second club in Alice Springs. On 20 September 1980, the MacDonnell Lions Club was chartered. During the years, the Lions Clubs of Alice Springs also chartered the Tennant Creek Lions and the Uluru-Ayers Rock Lions Club.
The official charter was celebrated on 5 December 1964 with a great charter dinner held at the Mt Gillen Hotel Motel, which no longer exists. The weather was kind and the celebration was held on the lawns surrounding the swimming pool. All the states of Australia were represented, with delegations coming from all over.
Over the past 40 years, many community projects have been carried out by Lions, and the Old Timers Home in Alice Springs is their Number One recipient. Many projects have been conducted by the Lions Club, including the Anzac Hill walkway, the Camel Cup Race that is held each year and the Hamilton Downs Youth Camp. These are just a few of their ongoing projects.
This year, because of the dwindling number of members in Lions Clubs across Alice Springs, they have decided to merge. The MacDonnell Lions and MacDonnell Lionesses Clubs have now merged into the one club.
The 40th birthday celebrations will be held in November to coincide with the visit of the District Governor, Bob Dewell, to Alice Springs, and will be held at the Old Timers Village.
I congratulate the Lions Club of Alice Springs which has worked tirelessly over many years as a service club in the town, which has been of great benefit to many of the people who they have served.
I also commend the work that Keith McEwan has done over many years. Keith has been in Alice Springs since 1960 when he first managed the Mt Gillen Motel. In 1964, he went to Hastings Deering and, in 1969, he entered the motor vehicle sales marketing area. We all know Keith McEwan from that business as he has been in it for many years. Keith now is a private hire vehicle owner and it is wonderful that he still active in Lions after 40 years in Alice Springs. I commend him and the Lions Club and wish them well on their anniversary.
Motion agreed to; the Assembly adjourned.
VISITORS
Madam SPEAKER: I draw honourable members’ attention to the presence in the gallery of O’Loughlin College Year 11 politics students, accompanied by their teacher, Mr Paul Stenchion. On behalf of honourable members, I extend to you a warm welcome.
Members: Hear, hear!
MINISTERIAL REPORTS
Bayu-Undan LNG Project
Bayu-Undan LNG Project
Ms MARTIN (Chief Minister): Madam Speaker, this morning I provide an update on the Bayu-Undan LNG project, currently under way at Wickham Point and offshore in the Timor Sea, valued at $5.5bn.
Offshore, construction of the production platform is completed, and liquid production is already taking place. Gas is being injected back into the deposit, and will be piped to Darwin in 2006 when the LNG plant is completed.
Onshore, in the past fortnight, we have seen a landmark event in the construction of the LNG plant. The steel-dome roof was lifted into place on the massive LNG storage tank constructed by Thiess TKK. After two weeks of preparation, the 92 m diameter domed roof was successfully air-lifted 33 m up to the top of the tank. No cranes were needed for the lift; just five fans, each no larger than a car engine, were used to pump the required air needed to lift the 1083 tonne roof into place. A cushion of air floated the dome into place in just two-and-a-half hours. It was then secured in place by welders. The storage tank roof raising is a milestone, because it means work can now begin on the tank’s steel interior, with the installation of the steel and nickel inner tank.
The steel roof itself was fabricated locally, by structural steel specialists, EC&E of Berrimah, one of the 18 major subcontracts that have been awarded to Territory companies. It is an engineering shop owned and operated by Anton Buic since EC&E’s operations began in 1977. The individual steel sheets that together make up the dome were fabricated by 25 Territory boilermakers and welders at EC&E over a four-and-a-half month period.
Also on-site, progress continues to track according to plan, with the marine jetty trestle that is also under construction. Pile driving continues in Darwin Harbour, with approximately one-half of the total 212 piles being driven in. Installation of the pre-cast concrete deck support beams will be the next step in the jetty’s construction process, transforming the jetty into a roadway trestle reaching out into Middle Arm.
Structural steel construction is well advanced or complete across the site on a variety of structures, except the ground flare area and several smaller pipe racks. All six refrigeration compressors and turbines have been delivered to the site from the manufacturers in Italy.
The control administration building, to be occupied by ConocoPhillips, will be erected and enclosed this month, with architectural finishes and interior work to come. Piping and electrical phases are under way, and there will be an accelerated rate of activity in the coming months.
Construction of the pipeline connecting the LNG plant with the offshore facility is well under way. The contractor, Multiplex Saipem Joint Venture, is currently laying the pipeline on the Timor Sea floor from the Seamac I barge, purpose-built for the offshore pipe laying. The barge is currently 100 km out to sea with 400 km of pipeline yet to lay. In Darwin Harbour, the Dutch-registered Jan Stens rock laying barge is currently dropping four grades of rock on top of the harbour pipeline. The rock, culminating with the largest boulder sized rock, will protect the pipeline from damage in the busy harbour and provide Darwin recreational fishing people with a new 22 km long artificial reef. The vessel will be laying rock in the harbour until late December this year
The Bayu-Undan project has delivered a wealth of benefits to Territorians: sales to Territory businesses; employment across a wide range of skills and services; and training in high levels of various trades. Project operators have issued in excess of 3500 purchasing requests to more than 250 Territory vendors. The total value of sub-contracts awarded to Territory companies is more than $230m over the construction period. Business is continuing daily in areas as diverse as purchasing fresh food to feed workers at the Palmerston camp to the purchase of hose and paper clips. Bechtel’s Palmerston camp, housing workers from interstate, now has 467 occupants out of a capacity of 800. Before the start of construction of the project, it was estimated that 1000 people would be employed in the project; but total employment to date has exceeded that expectation. Employment of non-manual and trades people now stands at 1270. The current number of tradespeople is now over 1000 employed of which approximately, and this is a fantastic figure, 54% are Territorians. That number is set to rise even further over the next six months when at least 200 more tradespeople will be required.
Onshore aspects of this project are 28% complete and the benefits, as I have spelled out, are there for Territory workers and businesses.
Mr DUNHAM (Drysdale): This is great story, Madam Speaker. I am a left brain person, but one cannot help being overwhelmed by the science. As the Chief Minister rightly pointed out, there were five fans to lift a roof that I understand weighed 1100 tonnes and one fan was used. One fan created one bar of pressure that was sufficient to lift that roof into place. The tolerance for a moving part of that magnitude and weight to be welded into a fixed part defies belief. It is a great accolade to the workers on-site, to the design team, to those people with speciality in this area who came from overseas, and there were many of them, for the lift. It stuns you - not just the magnitude, but the basic science involved for such an intricate purpose.
I applaud EC&E and Anton Buic. It is a company that has been around a long time; it has had a lot of work in mining areas including Groote Eylandt and other places. He is a good man and it is good to see him benefiting from this project. I hope the Chief Minister has spoken to Anton and I hope she has spoken to the boss of Shorelands because he has a different story on local participation; it is probably good to hear both of them.
I have had the good fortune to have a briefing from the Minerals Council and I have made a site visit by ferry with one of the people from Bechtel with the PRBA to look at the site from the seaward side. I have been fortunate enough to talk to several people who work on the site. It is a great project and it is good to see that it is happening. I have said in this parliament before that it is a pity that opportunities were lost and that is a matter for the Chief Minister to answer at some later time.
I query the figure of 54% on-site at Wickham Point. I have been told that it is less than that, but I applaud the fact that it is 54% and we would like to see verification from either the company or the Chief Minister on that.
Ms MARTIN (Chief Minister): Madam Speaker, what extraordinary negativity! Opportunities lost! Talk to Bechtel. As I said twice over the last couple of days in this House, Bechtel said that when they are building plants around the world, they only expect to get 30% local employment. We are at 54% and the opposition spokesperson instead of applauding it challenges the figure. He said that Bechtel is lying to us - that is what he is saying, basically, that Bechtel is lying because he disputes the figure on no basis at all.
Talk to the businesses that have some of the $230m contracts. Talk to those who are working there. Stop coming into this House and, on one hand, saying it is a great project and, on the other hand, bagging it. You are bagging the project. That is what the member for Drysdale needs to recognise. Stop speaking out of both sides of your mouth.
We have a lot of Territorians employed on this project. Well done, I say. Well done to our businesses for growing their capacities and being part of this, and our workers for upping their skills and being part of a great project for the Territory.
Charles Darwin University, Alice Springs Campus – Secondary Education
Mr STIRLING (Employment, Education and Training): Madam Speaker, I am pleased to update the House on arrangements for delivery of secondary education at the Alice Springs campus of Charles Darwin University.
While working through a number of transitional arrangements following the merger of Centralian College and Northern Territory University, now Charles Darwin University, it became apparent that the community, our teachers, the education union, parents and others had a range of concerns about the merger. Those concerns went to arrangements for the school council and governance issues in and around that, staff recruitment and career opportunities for teachers, communication, administrative structures and reporting processes.
I advised the House in the August sittings that I asked the department and the Charles Darwin University to prepare a report for Cabinet to advise options available to work through and resolve this range of community concerns. After careful consideration of that report, the government announced that as from 1 January 2005, Years 11 and 12 on this campus will operate as a separate government school.
We listened to the concerns raised and found them to be legitimate, and we have acted accordingly. The decision means the school will be co-located on the campus and will work in close cooperation with Charles Darwin University. It will not, however, be a merged part of the university. The school and council will operate as any other government secondary school.
Year 11 and 12 students will have seamless access to all the opportunities and educational pathways that co-location will afford, including vocational education, training and higher education. Students will be able to do VET subjects in school and achieve credit towards their NTCE, but they will be awarded certificates of completion from Charles Darwin University for that work. Year 11 and 12 students will have access to facilities, resources and staff across both educational institutions. School leadership and teachers will not change apart from natural staff movement that occurs from year to year.
All senior secondary school employees will be employees of the Department of Employment, Education and Training. The Chief Executive, Mr Peter Plummer, will meet with staff in Alice Springs in Term 4 to provide further clarification and the opportunity to discuss any other issues that staff may have.
A memorandum of understanding between the department and Charles Darwin University in relation to these co-location arrangements, such as the use of facilities and resources, is being developed in consultation with stakeholders of both institutions.
Current and prospective parents and students and the public were made aware of changes through several channels: letters to current parents; distribution of an information sheet to prospective parents; a previously scheduled parent information evening for prospective parents also provided an opportunity for parents to be updated and have questions answered; and a public forum held on 22 September 2004.
Madam Speaker, we have looked at the best long-term interests of students and we have put these arrangements in place with the best educational outcomes for students at the forefront, and the future of secondary education in Alice Springs overall.
We have listened to the concerns of the people of Alice Springs involved in these institutions and we have acted on those concerns with the best interests of the educational needs of the students as the motivator.
Dr LIM (Greatorex): Madam Speaker, I lament the backward step that this government has taken with the Centralian College, the way it has offered Years 11 and 12 in a seamless way with TAFE subjects, and now as part of Charles Darwin University.
I am glad to hear at least there is some settling of the confusion that has occurred in Alice Springs, with the minister having taken his eye off the ball for the last 12 months. The minister spoke about the seamless way that students can complete Years 11 and 12 and TAFE subjects, and that is good. That is through an MOU and not under the single governance of the Charles Darwin University. I believe it has taken a step back some 10 years, setting back the progress of the college in a way that I never imagined could happen.
What the minister has failed to describe for us, though, is the governance structure of Sadadeen Senior College, if we can call it that again - I do not know what the name is for the centre now; let’s call it Sadadeen Senior College, which is what it was back before 1992. What sort of council structures are there going to be? Is the school going to operate under the current school councils’ legislation? I hope it does because that legislation empowers school councils to govern in a way that will engage the community. If that is not the case, then I still believe that Alice Springs will be short-changed by this government. I would like the minister, in his response, to assure me that school councils legislation will be used to establish a school council for the Sadadeen Senior College, and ensure that students and parents will be fully engaged.
I am glad to hear that the teachers are now part of DEET and will retain their conditions of employment. That will satisfy the teachers’ concerns.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I thank the member opposite for his supportive remarks. I accept there was some uncertainty, and perhaps the process could have been a better one right throughout. Nonetheless, we are back on track. In relation to the school council, there will be a full council back in operation for the school. I assume it will be under the normal school council legislation; I cannot see any reason why it would not be. I am pretty confident I can give that assurance. It will have Charles Darwin University input to the council, which will make sense given the co-location arrangements, but for all intents and purposes, there will be a normal operating school council with the usual parental input.
Trade Delegation, Sabah and Sarawak
Mr HENDERSON (Asian Relations and Trade): Madam Speaker, today I report on my recent business delegation to Sabah and Sarawak from 9 to 15 September to promote trade and business opportunities between the Northern Territory and Malaysia.
The key component of the delegation was a Territory business delegation at the Sabah International Expo, or SIE 2004, in Kota Kinabalu. Thirty-six thousand people visited the Expo over four days, and I am proud to say the Territory had the largest Australian presence, and one of the largest international displays at this important trade fair.
The delegation was drawn from a diverse background, including transport, manufacturing, education, health, business services, tourism and primary industry. In total, 27 business people representing 13 businesses and the Chamber of Commerce, the Asthma Foundation, the International Business Council and local and Territory government travelled with support from the government’s Trade Support Scheme, and I am pleased to report there are many success stories to be told.
Among them: the International College of Advanced Education signed a memorandum of understanding for their on-line business and hospitality training packages to be used by a Malaysian private college; Mr Tom Dinning and Mrs Christine Dinning, on their first international business visit, very proudly constituents of mine, they live in Leanyer, sold all of their hand made boxes and received orders from a chain of gift stores across Malaysia; Territory Craft generated substantial interest in their Territory made craft products; and Mr David Gyles of Mozzie Catcher identified a number of potential customers for the patented mosquito attracting machine; Jim Lombard, from H2O Solutions has very good prospects in eastern Malaysia for his waste water recycling business.
About 30 Malaysian investors also turned out to hear a presentation from six of our business delegates and me on business and investment opportunities in the Northern Territory, reportedly one of the best turnouts for international exhibitor presentations.
The Chief Minister also attended SIE and, with the Chief Minister of Sabah, witnessed the signing of a memorandum of understanding between the Malaysian Chamber of Commerce and Industry and the Chamber of Commerce and Industry in the Northern Territory.
Every Territory delegate at SIE should be justifiably proud of their efforts. I am pleased to report the Northern Territory was singled out at the Chief Minister of Sabah’s official Expo dinner, with a commemorative award in honour of our participation in three consecutive SIEs, a good sign for future business partnerships.
Whilst in Kota Kinabalu, I was pleased to meet with a number of key ministers to strengthen the Territory’s relationship with Sabah. I was pleased to meet with Datuk Ewon Ebin, the Minister of Industrial Development; YB Tan Sri Chong Kah Kiat, Deputy Chief Minister; and Datuk Masidi Manjun, Minister for Youth Affairs.
I am pleased to report the Sabah government has again stated its commitment to increasing trade, business and cultural links with the Territory, including a commitment to attend Northern Territory Expo 2005 and the Arafura Games next year, the establishment of government staff exchanges to increase understanding and relationships, and encouragement to seek stronger ties with Sabah through education and tourism.
I was also pleased to receive briefings from the Sabah Economic Development Corporation, the Kota Kinabalu Industrial Park, and the Brunei Indonesia Malaysia Philippines-East Asian Growth Area, BIMP-EAGA, trading bloc. A fantastic outcome was that Darwin is to host a meeting of BIMP-EAGA officials and ministers, further strengthening the Territory’s position as the trading gateway between Asia and Australia.
From Kota Kinabalu, I travelled to Bintulu in Sarawak with a smaller business delegation. There, I met with the Bintulu Port and the Bintulu Development Authority. I was briefed on the development of their port, LNG facilities, and industrialisation plans. The level of development and growth in Bintulu is quite extraordinary. In just over 20 years, Bintulu has grown from a sleepy fishing village to be one of eastern Malaysia’s most important shipping hubs. Around 140 000 containers passed over their wharf last year. Bintulu is also home to the world’s largest single-sited LNG plant.
There are many lessons to be learnt from Bintulu as Darwin starts its journey of growth through the Australasia trade route and developing gas industry, and there are significant opportunities for business partnerships with Bintulu. In fact, the Darwin-based Australasia Group of Companies is working on the establishment of regular shipping links with the port of Bintulu and we are hopeful that that will come off by the end of the year.
I hosted a business dinner in honour of the visit of the Northern Territory business delegation, and this was attended by about 30 business representatives from the major industrial companies in Bintulu. I outlined in a presentation the development and investment opportunities in the Territory. I am pleased to report there were many interested parties in the Australasia trade route, and a delegation from Bintulu is soon to come to the Northern Territory.
Mr MILLS (Opposition Leader): Madam Speaker and members, if we had reports like this over the past three years I would be a much happier Opposition Leader. These are the reports we need on a consistent basis. It is an excellent report and there have been a number of very significant advancements in our Asian Relations and Trade strategy. We have followed, of course, the spirit of Ernie Dingo, a friend of mine, saying: ‘Go on; get out there’.
It was interesting to note that there were three of you, I understand, in Sabah at the same time. It is a big region and it is pretty curious that the three of you managed to jostle around together in Sabah. Nonetheless, it is a very welcome report. I have had a number of reports from members of that delegation who said that this was a very well-focussed delegation and that some very good, productive links have been made.
If we had reports like this on a consistent basis over the past three years, we would not be faced with the very concerning news of increases in the cost of freight on the Darwin to Adelaide rail. There has been an increase of 85% in the cost of freight on that rail. That is largely due to the bridge that was meant to be created by an effective Asian Relations and Trade strategy into the region to channel freight from the region down on that rail so that we would have a far more viable rail at this point. The announcement by operators to increase the cost of freight is a clear indication that the bridge has fallen down and you have now begun to reconstruct that bridge with effective communication within the region.
We needed to see strong trade from the region. We needed to see a continuation of genuine, clear, well-intentioned and well-focussed engagement that is only just beginning. It is too late because we have had an 85% increase in the cost of freight on the rail.
Madam SPEAKER: Opposition Leader, your time has expired.
Mr HENDERSON (Asian Relations and Trade): Madam Speaker, I do not know where the Leader of the Opposition has been. I have made a number of these reports over the last few years. It is not just me saying that things are improving. I will quote some latest figures from the Australian Bureau of Statistics and Austrade, which has praised the progress of the Northern Territory in driving up exports to East Asia.
The Territory is now the second highest exporter per capita behind Western Australia. We have been singled out for specific praise by Austrade for small to medium enterprises. This is not the big mining companies; this is the SMEs in the Northern Territory. About 78% of our exports went to East Asia in 2002-03, a significant rise.
We are backing exporters in the Northern Territory. We have increased funding to the Trade Support Scheme to nearly $0.5m this year. Every day, I am signing letters in my office to assist business people to get overseas and export. I urge the opposition to get behind these people, because it is the business people who do the business and they are doing a fantastic job.
Trade Delegation, Sabah and the Philippines
Mr VATSKALIS (Primary Industry and Fisheries): Madam Speaker, I rise today to report on my recent visit to Sabah and the Philippines.
As part of this government’s strategy for increasing the livestock trade to South-East Asia, my department has been providing technical assistance with cattle programs in Sabah and the Philippines. As a result, our exports of cattle to Sabah resumed this July with a shipment of 300 breeders, and last October 1000 feeder cattle were shipped to the Philippines for a cattle development project in Negros Occidental.
In Sabah, the Minister for Agriculture and Food Industry, Datuk Rahim, told me that his government was aiming for 30% self-sufficiency in beef production by 2010. To achieve this, they are integrating cattle production under oil palm and importing Australian breeder cattle for distribution to farmers and providing the farmers with proper training in beef cattle husbandry.
Minister Rahim reiterated his appreciation of our support for this program and the work done by officers of my department in providing technical advice and training to the Department of Veterinary Services and Animal Industries.
The Sabah government has commissioned new slaughterhouses which have been designed and built by Territorian, Mr Jim Scott. I visited the Kiansam pig abattoir where one of my officers, Mr Steve Sell, has been assisting Mr Scott and the Sabah Veterinary Services Department with accreditation of the facility and with training of slaughtermen and abattoir management.
I visited a multi-species abattoir and meat technology centre near Kota Kinabalu, which is still under construction. My department will help to establish this facility as a leading training centre in meat processing for the BIMP-EAGA region.
I inspected the Sabah Animal Disease Research Centre in the company of Mr Haji Awang Sahak Salleh, Director of the Department of Veterinary Services and Animal Industries, and I met with staff who will come to the Berrimah Veterinary Laboratory for training. It is important that we assist with their disease prevention as a first line of defence for Territory livestock industries.
My hosts took me to one of their cattle breeding stations to see the Braham breeder cattle that were recently imported from the Territory. Departmental officers have worked closely with government farm managers in Sabah to improve their operations and three of them recently came to the Territory for work experience. Our industry representatives and livestock exporters were able to meet with local Sabah importers and cattle producers for business discussions on prospective cattle importations, which are expected to reach 5000 breeders per year for the next five years.
Turning now to my visit to the Philippines, the Australian Ambassador to the Philippines, Ms Ruth Pearce, provided us with a briefing on the economic issues and challenges facing President Arroyo in her second term of office. Unfortunately, the Secretary of Agriculture was unavailable at the time of my visit, so I met with Assistant Secretary, Sefredo Serrano, and Mr Peter Ocampo, Director of Livestock Program. They acknowledged the collaborative work undertaken between my department and the Philippines Department of Agriculture, in particular regarding the Negros cattle project which addresses the poverty alleviation policy of the Philippines government.
In Negros Occidental, I met Governor Joseph Maraon, together with the principal investors of the cattle project, local farmers and business people. I pledged to provide further technical support when the project is ready to receive its next shipment of cattle.
While I was in Manila, I paid a courtesy call on the former Agricultural Secretary, Luis Lorenzo, and met with other influential officials to promote trade with the Territory.
Finally, I would like to acknowledge the work of Mr David Ffoulkes from my department. He accompanied me on the visit and it is clear that in both Sabah and the Philippines he is highly regarded, respected and valued for the work he has done in assisting with the development of their cattle industry. I would also like to express my appreciation to Mr Stuart Kenny of the NT Cattlemen’s Association and Mr Patrick Underwood of the NT Livestock Exporters Association who were part of my delegation, and Mr David George who joined us in the Philippines.
As a result of that visit, Minister Rahim will visit Darwin in the middle of November. Our government is prepared to sign a Memorandum of Cooperation with the Sabah department and we will have a number of delegations coming from the Philippines.
In the Philippines, I met with ex-Senator John Osmena with whom I met yesterday. The ex-Senator intends to import 2000 cattle from the Territory to the Philippines and he formally asked for our assistance in providing technical know-how and transfer of technology in order to establish a small abattoir for export facilities.
Mr BALDWIN (Daly): Madam Speaker, I sincerely congratulate the minister for that report. It is excellent news. It is good to see that you are re-establishing long-held relationships with those important countries to our north, Sabah and the Philippines, to name just two. It is great to see that our standing with those jurisdictions remains as good as it was in past years because there has been a slip in the last two years in keeping those relationships going and it is thanks to the likes of the Exporters Association and the Cattlemen’s Association that have continued those important contacts.
I, too, congratulate the likes of Mr Ffoulkes, Stuart Kenny and Patrick Underwood for the great job they have done over quite some years, and I put on the record my disappointment that Patrick Underwood is leaving his job shortly. I note that it has been advertised. I wish him well for the future and thank him for the great job that he has done on behalf of exporters.
Livestock exports are a very important part of our economy, as is the assistance that we have given to many countries to our north in helping them with abattoir technology, helping them go from wet markets to packaging meat for themselves, and feed lotting. We have a lot to learn from them as well, but those links are very important and I am glad the minister has had an excellent trip. I have received feedback and it was a very good trip. I thank him for taking the people he did with him and congratulate him for that. I hope you also had some time to enjoy the local culture over there and to keep abreast of local issues.
Mr VATSKALIS (Primary Industry and Fisheries): Madam Speaker, I thank the member for his constructive comments. I did have a great time in Sabah. I was taken around by farmers and importers and saw some of the developments and was very impressed.
The Philippines was an eye-opener, especially Negros Occidental.
Members interjecting.
Mr VATSKALIS: Members on the other side find it very funny, but I think developing relations with other people is very important. Some of the issues in the Philippines - the economic downturn, the financial problems and the efforts of President Arroyo to redistribute wealth - are very important and we can play a really significant role.
I also pay tribute to Patrick Underwood. It is really sad that he is leaving; however he wants to go back to his family farm and he will probably do an equally good job there as he has done with the exporters. I am looking forward to more travel and further reinforcing and extending relations with our northern neighbours. They are a front line for disease prevention and are very important markets.
Reports noted pursuant to Sessional Order.
PROFESSIONAL STANDARDS BILL
(Serial 252)
(Serial 252)
Bill presented and read a first time.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I move that the bill be now read a second time.
This bill is a further component in the government’s legislative response to the insurance crisis. Our previous legislative measures have been designed to reduce pressure on the cost and availability of public liability insurance. This bill, however, is focussed on professional indemnity insurance. This cover insures professionals such as accountants, lawyers and engineers against claims by clients and others relying on their advice or services. Members will be aware of the difficulties faced in recent years by occupational groups in accessing indemnity insurance.
Indeed, the ACCC’s third monitoring report, released in August 2004, showed that professional indemnity premiums have risen on average by over 160% since 1999. Furthermore, many professionals are finding that when they renew their cover, it is subject to an increasing number of exclusions. For example, a survey in May 2004 by the Association of Consulting Engineers found that more than 50% of consulting engineering firms renewing their policies had areas of business limited by policy exclusions.
The government is concerned this situation could result in a reduction of services available to consumers as professionals withdraw from providing these services. Alternatively, consumers will increasingly bear the losses arising from poor service because professionals are inadequately insured.
The government has participated in national discussions, which resulted in all jurisdictions committing to introduce nationally consistent professional standards legislation. This bill ensures that the Territory fulfils that commitment. The effect of the bill will also be enhanced by the Commonwealth’s amendments. That amendment prevents plaintiffs from using its legislation as a basis for action in order to circumvent limits established under state and territory professional standards legislation.
The bill is consistent, although not identical, with the national model based on New South Wales legislation. This reflects the fact that the Territory has benefited from the experience of other jurisdictions, particularly Victoria, and consultation with stakeholders.
The purpose of the Professional Standards Bill is to limit the liability of members of occupational associations who participate in an approved professional standards scheme. Such schemes are designed to improve occupational standards, while providing greater protection and certainty to consumers about the quality of professional services and level of recovery should adverse events occur.
I will briefly outline the main aspects of the bill. Establishing schemes: the bill does not impose a scheme on any particular profession or occupational group. It is up to occupational associations to seek to establish one, and individuals and firms must join an association to access a scheme. Occupational associations must prepare their scheme then apply to the Professional Standards Council to have the scheme approved.
An approved scheme can apply to all members of the occupational association, or to particular kinds of members of the association. A scheme typically requires members to implement codes of conduct and risk management strategies, develop complaints and disciplinary procedures, and to undertake ongoing professional development. These measures improve occupational standards and reduce the likelihood of claims. In return, the scheme caps the professional liability of members to an approved amount of not less than $500 000.
The capping of liability: under the bill, liability is capped by reference to insurance arrangements, business assets, a multiple of the professional service fee or a combination of these. In order to receive the benefit of the liability cap, it is first of all necessary to be a member of an occupational association that has developed and had approved a professional standards scheme.
Second, members participating in the scheme must maintain insurance cover or business assets, or a combination of these, sufficient to meet claims up to their specified cap. To facilitate this, the bill provides that schemes may require members to have insurance policies of a particular kind that will cover their level of liability. Members must also comply with other requirements of the scheme, in particular the risk management strategies.
The cap on liability will only limit exposure to damages for property or pure economic loss. It will not apply to any claim involving a breach of trust or fraud or dishonesty. Further, the bill does not allow limitation of liability where there is a personal injury, even if the injury caused economic loss, or where a lawyer is negligent when acting in a personal injury claim. When a person is covered by a scheme, that scheme will apply to all the work done by the person and falling within the scope of the scheme, with the exception of work relating to contracts made before the commencement of the act. For the provisions of the act to apply, such contracts would need to be renegotiated.
The bill does, however, provide for flexibility in capping arrangements. Schemes may allow members to accept higher limits of liability, or to be exempted from the scheme if approved by the occupational association. Schemes may also set differing levels of caps, for example based on firm size or type of work. This flexibility will ensure members are able to retain a competitive edge in circumstances where levels of insurance are important, while encouraging continued improvement in the standards of that service.
The bill establishes an independent body, the Professional Standards Council, to approve and monitor schemes. It is intended that the Territory and other jurisdictions will appoint a common body of members to each council, thereby forming a single national Professional Standards Council. This will ensure consistent administration of the legislation across jurisdictions and is a cost-effective option for small jurisdictions such as the Territory. In approving a scheme, the council will need to balance the need to limit the liability of members against the need to protect consumers and achieve improvements in occupational standards.
The bill sets out in clause 10 matters to be considered by the council when deciding whether or not to approve a scheme. These matters include the claims history of the members of the occupational association. They also include the cost and availability of insurance to those people; the effect of the scheme on consumers and other parties who may be affected by the scheme; and insurance and risk management standards set by the association. In addition, the decision-making process will be assisted through public consultation. The council must seek, and have due regard to, public comment on a scheme prior to approval.
If the council approves a scheme, it must then be considered by the minister who may authorise the scheme by publication of a notice in the Gazette. A scheme takes effect on the date set in the Gazette notice or, if no date is set, two months from the date that the notice is published.
The scheme can be disallowed by the Legislative Assembly in the same way as a proposed rule. Individuals can, before a scheme starts, lodge a legal challenge on the basis that the scheme fails to comply with the act. The council, at its discretion or at the request of the minister or the occupational association, can amend or cancel an existing scheme.
The council also has authority to audit the compliance of scheme members with the risk management strategy. More generally, the council will have overall responsibility for monitoring and reporting on the operation of the legislation and promoting the development of professional standards.
Penalties: a person covered by an approved scheme is required to disclose that their liability is limited in all their advertising materials and business correspondence, except business cards. Failure to do so will incur a fine of 50 penalty points. Furthermore, if a member fails to advise a client, either through these documents or in some other form, that their liability is limited before an adverse event occurs, their liability will not be limited for damages arising from that event. The bill also obliges the member to provide a copy of their scheme to their client if requested. These requirements are intended to ensure that clients can make an informed choice about whether they wish to deal with a person whose liability is capped by a scheme.
Application: liability will only be limited on acts or omissions that occur after the commencement of the scheme and during the period in which the scheme is in force. It is the timing of the relevant event that determines whether liability will be limited. Schemes may operate for up to five years, and may be extended for a further 12 months by the minister. This time limitation means that the standards, capping and other arrangements imposed by schemes will be regularly updated.
Consultation: the government has consulted on the proposed bill and it is supported by stakeholders, including Professions Australia, the Law Society Northern Territory, CPA Australia and Engineers Australia Northern Division. The bill is also seen by occupational groups as complementary to proportionate liability legislation which the Minister for Justice and Attorney-General is expected to introduce in the Assembly in the near future. Combined, these two legislative initiatives will have a greater impact on professional indemnity premiums.
As a result of the bill, it is hoped that occupational groups in the Territory will be encouraged to establish schemes that will improve the quality and safety of their service to clients, while reducing their members’ exposure to liability risks in the course of their professional work. The bill is intended to balance the need to keep professional services available to consumers while protecting consumers against harm. In the absence of professional standards legislation, a client suing a professional may not have recourse to adequate insurance or assets to meet their claim. The proposed bill increases protection to consumers by ensuring that if an adverse event occurs, recourse is available to a guaranteed level of recovery and meaningful complaints and disciplinary system. Consumers are further protected by increased and more consistent standards of service.
Scheme members also benefit from the limitation on liability and through the risk management strategies, which should make them more alert to risk and better able to avoid it. Members can also market the strategies they have put in place as a scheme participant. Participation in a scheme should mean that insurers will be able to more readily assess members’ exposure to risk. This should place downward pressure on premiums for professional indemnity insurance, a result that should benefit both professionals and their clients.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
EVIDENCE REFORM (CHILDREN AND SEXUAL OFFENCES) BILL
(Serial 240)
(Serial 240)
Continued from 18 August 2004.
Ms CARNEY (Araluen): Madam Speaker, this bill is opposed and there are a variety of technical and other reasons for this, and I will detail them shortly.
Put simply, the bill is opposed because in a number of respects, it is flawed. I said at the time of the pre-publicity that the CLP was supportive of reforms in this area, and we are, but that the devil was in the detail and that it was important that we get it right. The government does not have this bill right, which is why it is opposed.
It was enormously disappointing to read the pre-publicity and then see what the bill actually says. I have been interested in this area for some years and have long held the view that reforms need to be made. Naturally, when I heard what the minister said prior to the introduction of this bill, I was happy with what was purported to have been achieved. However, when I went through the bill in detail, I was enormously disappointed to such an extent that it is necessary to oppose this bill today. That is very unfortunate but it is necessary in light of the bill’s many obvious and, in some instances, not so obvious failures and flaws.
The problem about opposing this bill is that there is a risk the government may spin our opposition to suggest to Territorians that we do not support improving the justice system for victims and witnesses. That is untrue and no one has been more committed to this area for years than me. However, if I have to wear government spin, then so be it. My life is too short to simply nod to bills that amount to a dog’s breakfast and that do not do what the government says they purport to do.
The Attorney-General has form when it comes to bringing bills into this House apparently thinking that they are good ones and then amending them down the track. We do not want this bill to be another instance. He also has form when it comes to selling and packaging his bills and so-called initiatives. There is the version for the public and there is the other version that we get to see. He is developing a reputation of being loose with the truth and putting political opportunism above good law.
The Attorney-General should take this bill back to the Department of Justice and to Parliamentary Counsel and fix it. The bill has numerous problems, but I will only deal with a few. It will, however, become clear to all who listen to what I have to say, and those who will subsequently read Hansard including relevant stakeholders, many of whom I have spoken to already, that the government needs to start again.
I now turn to several parts of the bill, some of which are more troublesome than others – and I am going through the clauses sequentially. In relation to clause 4, it seeks to repeal the existing section 16 of the Evidence Act, which is the disallowance of certain types of questions. Arguably, the government has broadened the definition, but there is little in it. I note that in the Attorney-General’s second reading speech, he calls this tinkering a:
- … new provision that recognises that different witnesses have different needs, attributes and levels
of understanding.
It is already there. It is a rehash of what already exists and is typical of the Labor approach to things, to meddle unnecessarily in the name of being seen to be doing something new.
In relation to clause 5, it seeks to amend section 21A of the Evidence Act. An amendment is proposed to section 21A and subparagraph (a) of the proposed new section provides that a court must be closed when a vulnerable witness is giving evidence in sexual assault cases.
Members will recall that this picks up an amendment I proposed in May that required the court to be closed in such cases. Naturally, that part of the bill is supportable. However, something which should also have been amended in section 21A of the Evidence Act is subsection (2A) and that is the section that says notwithstanding the protective arrangements, vulnerable witnesses could use that are outlined in paragraph 2 of that section, such as sitting behind a screen, using CCTV or having a support person sit with them, the court may make an order that a vulnerable witness is not to give evidence using such an arrangement if it is satisfied that it is not in the interests of justice.
Members will recall that the government opposed an amendment I introduced in May and we debated earlier this week to remedy this situation. Section 21A(2)(A)(a) means that special or protective measures are available, but they do not exist as of right because the court can say that it is not in the interests of justice. This is wholly inconsistent with a proposed new section 21D that states in (1) that children should be given the benefit of special measures and in (2) says that the court must take measures to limit to the greatest extent practable the distress and trauma suffered when giving evidence and a child must not be intimidated when giving evidence.
I will outline my objections to the proposed section 21D later, but it must surely be clear to everyone that retaining the existing 2(A)(a) in section 21A of the Evidence Act is at odds with the proposed section 21D in the bill and will create a nightmare for lawyers and judges who will have to navigate their way through the inconsistencies.
Simply put, the existing 21A(2)(A)(a) and the new 21D(2) are not compatible. They are at odds with each other and it is not a desirable outcome for victims, lawyers or judges, nor the administration of justice in the Northern Territory.
Having outlined the legal difficulties, the politics of this approach is equally absurd. Government represents to Territorians that it cares about victims by saying that the courts must treat children in a particular way, but retains the ability for the court to refuse to provide the special arrangements of screens, CCTV and so on for them when giving their evidence.
It does not make sense either legally or politically. We suggest if the government accepts, as it surely must, that this bill needs to go back to the drawing board, that government omit (a) of 2A of section 21A of the Evidence Act. If it does not want to repeal that subsection - and it should, but if the Attorney-General can not bring himself to get rid of it - then he should amend it by borrowing from the Victorian Evidence (Audio Visual and Audio Linking) Act and amend subsection (a) to read:
- … in the best interests of the child and consistent with the interests of justice.
I now turn to clause 6 of the bill that deals with pre-recorded evidence of vulnerable witnesses. A new section 21B(1) is proposed and the section applies to (a) a sexual offence, and (b) an offence against sections 177, 181, 184, 186, 186B, 186C, 188 or 193 of the Criminal Code. It becomes necessary, therefore, to look at what those sections of the Code are: section 107 deals with acts intended to cause grievous harm; section 181 deals with grievous harm; 184 deals with endangering a life of a child by exposure; 186 deals with bodily harm; and 188 is common assault. Those sections deal with a number of crimes that are not sexual offences. No explanation has been provided either in the pre-publicity or the second reading speech, so we do not know why they have been included. Given that they have been, however, the title of the bill should arguably be changed to Evidence Reform (Children and Sexual and Other Offences) Bill.
Apart from those sections relating to crimes that are not sexual offences, thereby going beyond the name of the bill, the inclusion of the sections to which I have just referred from the Criminal Code is curious for other reasons.
It is especially curious that the crimes of murder and manslaughter are not included. In such cases, there can be vulnerable witnesses. If it is reasonable to include sections dealing with acts of gross indecency, grievous harm, bodily harm, common assault and so on, then, as a matter of consistency, more serious crimes should be included. Why have these crimes been excluded, that is murder and manslaughter, but others, less serious, been included in the bill?
The Attorney-General seems to have the peculiar view that there may be vulnerable child witnesses involved in some crimes, but not those of murder and manslaughter. In the absence of any explanation provided in the second reading speech, one can only assume that the bill has not been thoroughly prepared. Having regard to other parts of the bill, this is the conclusion to which we have come.
I now turn to section 21B(2), which deals with the video taping of evidence. While this is new for the Northern Territory, it is not new for some other jurisdictions. However, since it is new for the Territory, it is important that we get it right. Before dealing with the specifics of the section in detail, there are a number of broader concerns I have about the video tape that is used and, in particular, what happens to the video tape after it has been used in court.
It is important to note that a video is different from a written statement that is given to a defendant which is provided in the normal course of events of disclosure or discovery. There are issues that are unresolved and have not been thought through. The concerns are that there will be a video floating around with a child giving evidence about a sexual assault. Things that could go wrong include, but are not limited to, the video can be given to the offender. It may then be edited, it may then end up on the Internet. An unrepresented offender will be entitled to receive the video directly. It may find its way onto a training video, for instance, for prosecutors. Another thing that could go wrong is that evidence has been given when a victim is a child. What happens if, when that person becomes an adult, the video surfaces?
Finally, I am advised that a private company has the Northern Territory government contract for archiving files, which includes court files. Since court files are not held directly by government, it cannot therefore guarantee the safety of them. The video is a living document and no thought has apparently been directed to the safety of the videos and the privacy of victims. Guidelines do need to be included to ensure that these videos do not fall into the wrong hands. It may be that defence lawyers will be required to give an undertaking to destroy them or hand them back to the Crown. Defence lawyers can give it to their clients, and the fact is it may be used for improper purposes.
At least in Western Australia, they bothered to address this issue for providing penalties for the improper use of a video, but this government did not even address it. I raised the issue in the briefing and it seemed to come as something of a surprise that any concerns might exist in relation to what happens to the videos. Why did not the Attorney-General ask questions about this, or was it the case that he was simply not concerned? Madam Speaker, the Attorney-General may not be concerned, but I am.
Having dealt with the bill being silent about what happens to the video, or put another way, the absence of adequate safeguards in respect of them, I now turn to part of section 21B in detail. Section 21B(2) deals with evidence by video. Nowhere in the propaganda that was disseminated before the bill was introduced was reference made to the fact that video evidence will be used ‘at the election of the prosecution’. In other words, there is no automatic right for vulnerable witnesses to avail themselves of giving evidence by video, except children and only at committal. It means that at trial, when a prosecutor decides to use video, that is when it is used. This is problematic. Putting to one side the sheer dishonesty of representing to Territorians that this initiative was created as of right for victims, the fact is that giving the power to decide whether to use a video to the prosecution is misguided. The reality is that prosecutors believe it is better for juries to see the crying and distress because it improves their chances of conviction. If the Attorney-General does not believe me, then he should ask them.
Second, there is a general reluctance for prosecutors to use the existing facility of a CCTV in Alice Springs and Darwin. For some years such facilities have existed, but they are rarely used and prosecutors do not like to do it because there is a view that it diminishes the prospects of a conviction. The Attorney-General should know about this. If he does not, he should. If he does, he should have provided figures, and I will ask him to do so in committee, of how many times in the last three years vulnerable witnesses have given evidence by CCTV. In fact, I invite him to do so. A senior Darwin prosecutor has informed me that CCTV is used in about 15% to 20% of cases.
Madam Speaker, the foregoing demonstrates why it is unwise in the extreme to give the discretion to pre-record evidence to prosecutors. Either the government wants vulnerable witnesses to give evidence by pre-trial video or it does not. If it is serious about this, then it should legislate for it so that victims have it as of right. The Attorney-General, for some reason, does not appear to have bothered to do this and presented a bill that does not actually do what it says. The prosecution can elect to have the evidence-in-chief recorded in (2)(A) or the whole of the evidence. It goes on to say in new section 21B(3):
- If pre-recorded evidence is given …
(a) the witness must be available for cross-examination if required …
except in committals. This leaves the door open for children to be cross-examined in court and not by video and, potentially, without even the protective arrangements provided for in section 21A(2) of the Evidence Act by virtue of retaining that section, as I outlined earlier. I understood that this was what the bill sought to avoid.
The bill does not do what the Attorney-General says it does. The spin used by the Attorney-General has been disgraceful. I would have thought that even this government might have resisted the temptation to politicise children but, unfortunately, it chose to do so. That the Territory’s first law officer has presided over this bill and its pre-publicity is shameful.
There are other difficulties with the bill regarding video taping of evidence. It is important to provide for the rights of children in this bill, and that has not been done. The bill gives to the prosecution a right to elect whether to use pre-recorded evidence. There is no reference to the wishes of the child or other vulnerable witnesses. What happens if the prosecution elects to proceed with pre-recorded evidence that is contrary to the child’s wishes? The bill does not guarantee a child’s right to give evidence in person at trial, and it should have done so. There is evidence to suggest that older children, in particular, want to give evidence in person.
Furthermore, I am advised that the courts do not have the facilities to video tape in any event. I understand that in Alice Springs, for instance, there is no ability to record evidence. In fact, I am advised that there is not even a video camera on the premises. The Attorney-General has been silent when it comes to advising Territorians where the money is going to come from for the additional resources and infrastructure that is required to give effect to what is contained in the bill.
Where is the video equipment? Who will operate it? Who will be trained? What sort of recording will occur? For instance, will it be a close-up shot of a distressed child or taped from a distance? If so, how far? Will the witness be required to sit in the witness box or, as is the case of some countries, a place where a child is most comfortable such as sitting on the floor, particularly for younger children? Will it be recorded in court? If so, what has been done to avoid situations where there is a risk of a witness meeting the accused in or around the court? Might a sensible reform be to provide for the video taping to occur in informal surroundings, and has the Attorney-General considered this? If so, why has it not been included? Has the Attorney-General also considered reforms in other countries including the United Kingdom that provide for the removal of wigs and gowns when examination and cross-examination of children takes place?
In Scotland, a duty is imposed on the court to make ‘suitable arrangements’ for the evidence to be given from outside a court room. This can be done from either another part of the court building or any other suitable place that can be identified away from it. It could be argued that section 21B(4)(d) fills the gaps, but I do not think it does. Nevertheless, it is the responsibility of government to make it clear and take the lead on this issue rather than to leave it to the courts. Yet, it has failed to deal with this issue head-on, or at all.
Moreover, section 21B(2)(a) refers to examination-in-chief that may be pre-recorded and given by video tape or other audiovisual means. What are they? If it is CCTV, then that capacity already exists, although it is not recorded. Apart from video, what is meant by ‘other audiovisual means’? The Western Australian parliament bothered to provide a fulsome definition, but the Northern Territory Branch of the Australian Labor Party did not. Why not?
Another difficulty that arises from section 21B(2) is that it does not specifically say that video recording should occur prior to trial. In the absence of expressly saying that it should, it is possible that it will actually occur during the trial, which would need to be temporarily adjourned whilst court staff and others prepare video taping equipment. This means that one of the publicised aims of the bill – namely, getting the evidence of children early in the proceeding - may not eventuate.
The Attorney-General referred in his second reading speech to a ‘special pre-trial hearing’, but the bill refers to a ‘special hearing’, which is not defined. They are just some of the difficulties that arise from the proposed new section 21B, and they clearly demonstrate that nowhere near enough work has been put into the presentation of this bill. The fact that so little was included in the second reading speech illustrates that questions arise from the bill and remain unanswered.
However, there are even more difficulties that arise from the proposed new section. Given the absence of a definition of ‘special hearing’ referred in section 21B(4), which I will deal with separately shortly, presumably a judge will hear evidence at a special hearing, which may occur before the trial and then the same judge will need to hear the rest of the proceeding. I assume that it is anticipated that the judge who hears the special hearing, whatever that may be, will be the same judge who hears the rest of the trial, however, this is unclear from the bill. Assuming that the same judge will hear all of the evidence, the fact is that unless there is a guarantee that pre-recorded evidence is given during the trial, there will be listing problems. It is unfortunate, and I would say somewhat unusual, that ‘special hearing’ is not defined.
The second reading speech suggests that pre-recorded evidence will occur before trial. That is likely to be a particular problem in Alice Springs where judges sit on a circuit basis and the listings are full in any event. This may cause delays and it is ironic that one of the aims of the bill is to minimise delays. Simply put, in its present form pre-recording may in fact present obstacles for the fast-tracking of trials. Apparently, there has been no analysis of this potential outcome.
There are more parts of proposed section 21B that warrant criticism. In section 21B(3) there appears to be a typographical error. It refers to ‘subsection (1)(a)’, and it seems to me at least that it should refer to subsection (2)(a). If that is not the case, I will ask the Attorney-General to explain why it is not a typographical error. The proposed new section 21B(4) is a bit of a mess as well. Subsection (a) refers to a special hearing yet, as I have mentioned, it is not defined. I note that in Western Australia the government at least bothered to give it a definition, but this government has not made any effort despite the fact that they did not have to look very far for assistance.
Subsection (4) refers to a defendant being present at a special hearing but not in the same room as a witness. This is appropriate but no thought has apparently been given to what is done with unrepresented defendants. Are they permitted to be in a room during a special hearing? In section 5 of the Sexual Offences (Evidence and Procedure) Act it provides that an unrepresented defendant shall not be entitled to cross-examine the complainant directly. How does the video taping of evidence fit in with this, and what happens in the case of an unrepresented defendant being at the special hearing? Interestingly, in Scotland the Vulnerable Witness Bill passed in October 2003 provided for a discretionary power for the court to prohibit the accused from personally conducting his or her own defence in cases involving vulnerable witnesses. Did the Attorney-General give any thought to what other countries or jurisdictions have done to protect vulnerable witnesses? Would the Attorney-General support a move by the CLP to introduce discretionary power to prohibit an accused from personally conducting his or her own defence involving vulnerable witnesses?
For all of those reasons, Madam Speaker, the proposed section 21B is a mess. Government has had a great opportunity with all of its resources to significantly improve things for vulnerable witnesses, yet it has failed to do so. It has nevertheless used political spin to make it appear as though it has achieved things, when in fact it has not. If the Attorney-General fails in his reply to address the issues I have raised in relation to pre-recorded evidence, then that stands as an admission that the bill is flawed. If this part of the bill does what the pre-publicity said it does, then he will be able to address all of the matters I have raised.
I now turn to other parts of the bill, in particular clause 7 and the proposed new section 21D. There are two points I wish to make in relation to the section. Subsection (1) says:
- It is the intention of the Legislative Assembly that, as children tend to be vulnerable when dealing with
persons in authority (including courts and lawyers), child witnesses be given the benefit of special measures.
It is not defined in the Evidence Act, nor is it defined in the bill. It is the case that in some jurisdictions ‘special measures’ are defined and they include measures such as CCTV, a screen and so on, but ‘special measures’ are not defined in this bill. Is it the case that the reference to ‘special measures’ mean what are called ‘the arrangements’ outlined in section 21(A)(2) of the Evidence Act? It is unclear. If it is intended to mean those particular arrangements in section 21A(2) of the Evidence Act, then it should say so. Alternatively, perhaps ‘special measures’ refers to something else. If so, what? Perhaps ‘special measures’ mean those things included in of section 21D(2) of the bill. Who knows? It is unclear and it must be clarified.
The second point I make questions what the new section 21D(1) actually means. It amounts to a declaration. It states that the Legislative Assembly acknowledges that:
- … as children tend to be vulnerable in dealings with persons in authority (including courts and lawyers),
child witnesses will be given the benefit of special measures.
Such a declaration should arguably have appeared in the second reading speech and not the bill. There is, in my view, a certain pointlessness about including principles like this in a bill. To include the objects and purpose of a bill is one thing, but to include declarations of principles is quite another, and I am unable to find support in the relevant texts that legislation should include declarations of principles similar to the one contained in this section. It indicates that the government is more concerned about the packaging of legislation rather than its substance.
Section 21D(2) is also a mess. It says that:
- If a witness is a child, the court must have regard to the following principles:
(a) the court must take measures to limit, to the greatest extent practicable, the distress and trauma suffered
(or likely to be suffered) by the child when giving evidence;
There are a number of problems with this. The fact that the word ‘suffered’ has been included, for instance, clearly suggests after the child has given evidence, when he or she is in the foyer of the court in tears or having nightmares for weeks afterwards, the inclusion of the past tense is absurd or perhaps an admission that it will fail. It is illogical. What is the court supposed to do about that? At best, it is a direction for a court to conduct a proceeding in a particular way, yet at the same time the court need only have regard to the principle.
The expression ‘likely to be suffered’ is curious as well. How is a judge or magistrate able to predict what trauma each and every child is likely to suffer? This is not an area that judges deal with, as they need only deal with the evidence and the law. Moreover, no expert, and I have spoken to some, can predict which given child is going to be traumatised by giving evidence. So this subsection is making an ass of the law and illustrates the ill considered - some would say dog’s breakfast - approach to the bill.
Subsection (b) states that:
- … the child must be treated with dignity, respect and compassion.
Again, there is an inherent inconsistency. On the one hand, the court is to ‘have regard to the principle’ pursuant to section 21D(2), yet on the other hand, the court is being told that a child ‘must’ be treated with dignity, respect and compassion. Is it a principle or is it a direction? What happens if the court, for some reason, fails to do so? Is there a sanction? Is it an appeal point? An obvious question is: be treated with dignity, respect and compassion by whom? How is it measured, and by what standards?
It is inconsistent to provide these directions in a subsection that is preceded with the expression ‘the court must have regard to the following principles’. In addition, it is naive in the extreme to direct defence lawyers to treat witnesses with compassion. Our justice system is adversarial, and what are the sanctions, let alone the consequences, as far as running the case for an accused is concerned, in producing such a direction? Have the criminal lawyers of the Territory been consulted about this? If so, what have they said?
Furthermore, if the government believes that some witnesses should be treated with dignity, respect and compassion, why doesn’t government include such an expression in other legislation? Is it seriously suggested that other witnesses ought not be treated in this way? What about victims of domestic violence or sexual assault? Are they to be treated differently? Madam Speaker, the questions I have asked illustrate what a pedestrian fumbling, bumbling mess this bill is.
There is more. Subsection (c) states that the child must not be intimidated. To a large extent, this already exists by virtue of sections 16 and 21B of the Evidence Act. However, again, there is the obvious inconsistency. On the one hand, the court is to have regard to the principle, yet, on the other hand, the court is being told that it must ensure that a child must not be intimidated. Is it a principle or is it a direction? What happens if the court, for some reason, fails to do so? Is there a sanction? Is it an appeal point? Does the accused walk free if a child is intimidated? Almost every person I know who has given evidence say that they were intimidated. It is, by its nature, intimidating. If a child says, either directly or indirectly, that he or she is intimidated by questioning of defence counsel, what happens? Perhaps the court would adjourn and everyone would try again. What if the child continues to say that the questions are intimidating? Is the trial further adjourned? Is defence counsel then obliged to desist from asking questions, even though it might severely disadvantage his client? What is the judge supposed to look out for - various levels of distress or discomfort in a child talking about the details of a sexual assault?
It is, is it not, potentially the case that every child who is questioned about the veracity of his or her claims that they were sexually assaulted will feel or will be intimidated? Yet this bill directs that a child must not be intimidated. This is an absurd direction to include in legislation. If it were not so serious, it would be a joke.
In relation to section 21D(2), there is no guidance as to how a court might ensure that the directives are met. The fact that the Attorney-General has presented this bill in its current form clearly shows that he does not understand it or has simply not thought through the consequences.
Section 21D is what is known as a purpose provision. I am no expert in this area, but I have reviewed the relevant texts and I am deeply concerned about section 21D. I would like the Attorney-General to advise whether independent counsel has considered this section and, for that matter, the bill generally, and I ask that he table the advice received, or did the Attorney-General simply rely upon policy officers at the Department of Justice? If the Attorney-General can answer those questions or table the advice received, then there may be no need for me to continue to have concerns about the matters I have raised. However, in the absence of a satisfactory response or the tabling of the advice, then I can only assume that my concerns are well founded.
A final point I make in relation to section 21D(2) is to observe how absurd the clause is when all of the subsections (a) to (c) are read together. Subsection (a) includes the words ‘must’, as do (b) and (c). Then, for some reason, subsection (d) comes up with the word ‘should’. Why has not the Attorney-General used the word ‘must’ in this very subsection that refers to the length of time the proceedings take? One of the worst aspects of proceedings in sexual assault cases is the delay in getting the cases to court, yet strangely, the Attorney-General does not say that proceedings in which a child witness is involved ‘must’ be resolved as quickly as possible; merely that they ‘should’ be. This is at odds with moves in this country and others to fast-track proceedings, and most embarrassingly of all, it is at odds with the pre-publicity about this bill.
I turn now to clause 11. A new section 105AA provides that a child must give a written or recorded statement and cannot be cross-examined at committal. There are several points to be made in relation to this proposed amendment. The aim, of course, is to limit the number of times a child in a sexual assault case gives evidence. The police interview is therefore admitted into evidence at trial and the child is cross-examined. Is the Attorney-General aware of research in this area that raises concerns about this approach, specifically, that it has a potentially damaging effect on children and that the prospects of conviction may be diminished? I specifically refer to the fact that if a police interview is admitted into evidence at trial, the child is immediately exposed to cross-examination without having had the benefit of being examined in chief, thereby not being able to become comfortable in the court and settling in to friendly questioning before being exposed to cross-examination. Is the Attorney-General aware of such research? I would like to have seen an acknowledgement of it in the second reading speech, together with an explanation – and I do not put it any higher than that – as to why it was considered desirable to adopt this model in any event.
Given the increased importance of the police interview, what plans exist for more specialised training for police officers whose recorded interviews will play such a critical role at trial? Second, I raise the point as to why it is that the Attorney-General has not completely abolished oral examination at committal proceedings for adult victims in sexual assault cases.
I note that in the Attorney-General’s media release of 18 August he says:
- Victims of sexual crime should not be made to suffer again when they get to court to try to get justice.
What about all victims of sexual assault? Why haven’t the provision of this clause been extended to adult victims of sexual assault? Notwithstanding the observations I have made, the clause might generally be supportable, however, in light of the failings of other parts of the bill, it should not be. The bill needs to be redrafted.
I now turn to clause 17 which deals with time limits. The time limits proposed are absurd and may, in fact, have the effect of not assisting the administration of justice. It proposes a new section 3A, which requires a trial to be commenced within three months after the first mention if the matter is to be tried summarily and, for indictable offences, a trial must be commenced three months after the committal. These time limits are unreasonable and may adversely affect the administration of justice. They are unreasonable because a number of matters may be required to be undertaken which mean that, at trial or committal, it cannot occur within three months. They include but are not limited to: forensic evidence may need to be obtained and often that can take more than three months; it may mean that the DPP is forced to take matters to committal or trial that are simply not ready; furthermore, the Attorney-General is silent on whether additional resources will be provided for more forensic experts in order to speed up the forensic process.
Other examples could be a child might be on holiday; a child might be having Year 10, 11 or 12 exams a week before the trial; equipment might break down, as it often does; often defence lawyers are not ready; or the accused persons may dump their lawyer before trial, thereby requiring another lawyer who will not be able to prepare the case in time. The time limits are unreasonable and unrealistic. The section is creating an evil by putting too much pressure on the DPP, and the DPP will have difficulty complying. Justice is not served to anyone by imposing these unrealistic time limits.
What is most interesting – indeed, disturbing - about this section is the government spin in relation to it. The spin is that these types of matters will be the subject of time limits under the bill. Curiously, the word ‘must’ is used throughout the section in relation to time limits. Despite the word ‘must’ being used in relation to the time limits, however, the final subsection, new section 3A(5), provides for more than one extension to be granted. In other words, the spin is that there are time limits and most of the subsections say that matters must proceed within three months and then, at the very end, in subsections (4) and (5), there are provisions for extensions. This is another example of this legislation not doing what government says it does. On that basis - and there are so many others – it cannot be supported.
It would, however, be supported if the time limits were reasonable and if the government demonstrated it was serious about this issue. Either there are time limits or there are not. What we have before us is a dog’s breakfast. On the one hand, there are time limits, which are unreasonable and absurd and, on the other, there are, in fact, no time limits.
In conclusion, this is bad legislation and those who came up with it should feel embarrassed. I could say that the Attorney-General should also feel embarrassed, but he is not a lawyer and, therefore, does not have any idea what I am talking about. He is marched out, wound up, and told to stick to his script, and he does so often but, in the eyes of many lawyers at least, to his detriment. This bill is not a good one.
The answer is simple; government should go back to the drawing board so it provides the right legislation, not the mess that has been provided. The bill is full of good intentions, but good intentions alone do not make for good law. Frankly, I was astounded when I read this bill. After the briefing I had with the Attorney-General’s office, I was upbeat and hoped that the bill was as good as the pre-publicity said it was. It is increasingly becoming the case that the public packaging of what this government calls ‘initiatives’ falls a long way short of what is ultimately produced. We saw it in the last sittings with the statement on child abuse, and we see it with this bill. Of course, these are just two examples; there are more.
What was interesting about the second reading speech was the lack of detail and lack of evidence of detailed analysis of the bill’s consequences once in operation. I do not know who wrote the minister’s speech, but much of it was incomprehensible and other parts of it were simply rubbish. I also do not know why the Attorney-General cannot employ people with the relevant practical experience, either in the law or in the area of policy.
This bill is not supported and it should not be. We ask the Attorney-General to adjourn this debate so he can instruct his departmental officials to consider the difficulties I have highlighted. There are many and it deserves more than just the committee stage.
I would like to have supported this bill today, Madam Speaker, but find that upon detailed examination, we cannot in conscience do so. The government has missed its opportunity. The Attorney-General represented to Territorians and stakeholders that the bill achieved many desirable outcomes. Had it done so, we would have supported the bill today. However, the bill does not do what it purports to do and the Attorney-General’s shameless politicisation of children and other vulnerable witnesses is to be condemned.
Members: Hear, hear!
Dr TOYNE (Justice and Attorney-General): Madam Speaker, at the outset and before we deal with the detail of what the member for Araluen has had to say, I certainly detected a degree of arrogance in her contribution to this debate.
I am happy to take on board the points she would like to make about the content of the legislation. She honestly believes that she is a higher authority on these things. The way that legislation is developed, as we do it, is to go to the people who are experts on these matters. We balance the advice we receive and propose legislation we honestly believe will address the issues at hand.
In the single speech that she has made, she has managed to cast severe aspersions on the integrity and competence of our prosecutors and courts. She does not trust them with any degree of discretion on these matters. I do not share that view and I will never share that view. When you look at the expertise and the integrity of our courts, to be saying that any degree of discretion in the legislation is somehow going to undermine the intent of the legislation is insulting. It is simply insulting to the integrity of the people who work in our courts day by day. I do not accept that the member for Araluen is the only one in the world who understands what needs to be done to protect witnesses, particularly child witnesses. I do not believe that the member for Araluen is the only one in the world who can speak with authority on the rights or the interests of child victims of these crimes. I, for one, will always defend the need for discretion and flexibility in the way in which our courts operate on any offence that comes before our courts.
I believe that we have found that balance in the bill under discussion today. We have without doubt provided new ways in which child victims of these terrible offences can be heard effectively in a court hearing. We have introduced new provisions that will limit the degree the trauma that a child victim will suffer subsequent to being the victim of the offence itself despite the assertions from over there that it will drag children into not only the hearing itself, but into committal proceedings so we have two times in court where a child victim has to be subjected to a court process. We do not believe that is the way to go. We believe that you have to go in the opposition direction, and that is what our legislation does.
To deal with the raft of objections that the member has raised today, claiming clause 4 is a rehash of the existing provision, you have to go on the words. Clause 4 retains discretion for the court to exclude questions. At the same time the provision ensures that the court must consider age, maturity, cultural background of the witness as well as any mental, physical or intellectual characteristics of the witness, and the principles in relation to the child witness. The legislation provides appropriate guidance to the court, the things that the court needs to consider, when deciding to disallow a question.
We have highly qualified judges overseeing these court proceedings. It is quite within the powers of our judges to strike a balance between the need to exclude intimidatory or harassing questioning styles from lawyers in the court, particularly defence lawyers, and at the same time absolutely consider the factors in this legislation. That balance point is for the judges; it is well within our ability of our judges to strike.
In respect of section 21A, the member says that subsection (2) needs further amendment. She is arguing against balancing the processes and outcomes of the justice process with the rights of the victim. I do not think the member either respects or understands the role of prosecution in these processes. The prosecution makes these judgments on a day by day basis. It is for the prosecution to decide whether it is going to be advantageous or within the interests of the victims of these crimes to use or not to use this method of giving evidence.
There will certainly be cases where a victim may actually say: ‘I want to go in there and give evidence on my own behalf”. It might be a part of the process of closure that they are seeking from the court hearing. If they express that need, I have seen many examples where prosecutors and our Director of Public Prosecutions have used that discretion, have been very aware of the victim’s wishes in the hearing, and have responded to them appropriately. I do not think we should be mandating a particular course of action to the point where our prosecutors cannot make that judgment.
In respect of the Victorian legislation that was cited by the member, the Evidence (Audio Visual and Audio Linking) Act, it was being proposed quite recently by the member as the model on which we could base our legislation. She said that the government could amend section 21A(2)(a) of the Evidence Act by providing the definition in the Victorian act, which she says is in the best interests of the child and consistent with the interests of justice. We have done better than that. The principles that we have included in the bill are wider in scope and are more detailed than the Victorian provisions she is holding up as the national benchmark.
I remind members of the principles in 21D:
- Principles in relation to child witnesses:
(1) It is the intention of the Legislative Assembly that, as children tend to be vulnerable in dealings with
persons in authority (including courts and lawyers), child witnesses be given the benefit of special
measures.
(2) If the witness is a child, the court must have regard to the following principles:
- (a) the court must take measures to limit to the greatest extent practicable the distress or trauma suffered
(or likely to be suffered) by the child giving evidence;
- (b) the child must be treated with dignity, respect and compassion;
- (c) the child must not be intimated when giving evidence;
- (d) proceedings in which the child is a witness should be resolved as quickly as possible.
Further, the Victorian Evidence Act provisions are not considered to be the best model available. Proposed section 21B draws on the Western Australian model for the presentation of evidence from children. The existing Victorian legislation only provides for recorded examination-in-chief of the child to be admitted as evidence. Research by the Victorian Law Reform Commission Sexual Offences Final Report at page 269 indicates that relatively few tapes of evidence have actually been used in trials under the Victorian legislation.
For all the fear-mongering in which the member has indulged in her assessment of our bill, it is a fact that the member’s own preferred position was inferior. It is inferior to the provisions in this bill.
The member drew attention to the grounds for defining what constitutes vulnerability for a child witness. We have included in the bill a number of offences, which are, as the member quite rightly pointed out on that occasion, wider than purely sexual abuse. If you are going to talk about protecting vulnerable child witnesses, why would you narrow it down to the sexual offences that the member speaks of? Why would you not have a wider application of these vulnerable witness provisions within our court hearings?
Our purpose is to protect children from the trauma of court proceedings to the greatest degree possible within the constraints of having a just and effective outcome from a court hearing, not to simply protect them as regards a narrow range of offences. If the member wants to get out there in the public discourse and say that she does not believe that children victims of assault should have these vulnerable …
Ms Carney: Do not lie! Do not lie!
Mr Dunham: But she did not say that, you see. You should be careful about verballing her outside. That is a threat that you are going to tell lies about her outside here. Unbelievable!
Madam SPEAKER: Member for Araluen, withdraw that. Stand and withdraw.
Ms CARNEY: I withdraw the reference to lying, Madam Speaker.
Madam SPEAKER: Stand and withdraw.
Ms CARNEY: Yes, Madam Speaker, of course. Yes, withdrawn.
Mr HENDERSON: A point of order, Madam Speaker! The member for Drysdale has accused my colleague of lying, and I ask him to withdraw.
Mr Dunham: No.
Madam SPEAKER: Member for Drysdale, did you? Withdraw.
Mr DUNHAM: I accused him of threatening her, Madam Speaker, and saying that he would tell lies outside this place.
Madam SPEAKER: Member for Drysdale, just withdraw.
Mr DUNHAM: I withdraw that, but it would seem that that is the case, wouldn’t it?
Dr Burns: You can never let go, can you?
Mr Dunham: This is serious stuff. You should not be running it like this.
Madam SPEAKER: Order!
Dr TOYNE: Moving, if I may, to the next issue that the member raised in her contribution, and this is the matter of what happens in the handling of recorded evidence, videos or other recordings of the child victim or child witness. The Department of Justice has written to the Supreme Court offering assistance to develop guidelines to support the provisions in relation to pre-recorded evidence. The bill contains provision for the court to make orders about the procedures for recording, possessing, playing, erasing or editing of recorded evidence. It is not appropriate to be any more prescriptive in the bill, as the circumstances of each case are likely to be different.
It is anticipated that the court will develop standard orders to cover these issues. Other states have provisions for pre-recorded evidence and have already developed effective guidelines in this area of court operation. The court has its own capacity, at any time, to develop rules and guidelines for the conduct of hearings, including the deposition of such recorded evidence.
Again, the member should have a bit more faith in not only the capacity of our courts and judges, but also the track record of our courts in dealing with these matters. I trust our courts, in conjunction with my department, to come up with an effective set of orders and guidelines to deal with these recordings of evidence.
The member also called attention to the question of whether the prosecution actually can elect to use this type of evidence. She is correct in saying that this procedure is to be available at the election of the prosecution. It is anticipated that the prosecution will determine whether to use the procedures available under section 21B in consultation with the witness and other relevant people such as the Witness Assistance Service. By providing a process where needed, we ensure flexibility for individual cases. To prescribe video-link evidence as the only form of evidence may take us to assume that it is always desirable in the interests of justice.
I note that the Victorian Law Reform Commission, in its recent Final Report on Sexual Offences, Law and Procedure, does not recommend that pre-recording of children’s evidence should be mandatory. It recognises that there will be some cases where the victim will not wish to give evidence in this manner, and I have already referred to that in some of my earlier remarks.
In respect of the use of closed-circuit TV in Alice Springs, there is only one jury court room at the Alice Springs Law Courts and, when closed-circuit TV is used in this court room, the victim can see some or part of the jury. However, CCTV is not used in all sexual assault trials, and often victims prefer to use a screen.
Vulnerable witness arrangements, such as CCTV and screens, are primarily aimed at protecting the victim from the accused. The amendment to require that the court will be closed, clause 5, while a vulnerable witness gives evidence in relation to a sexual offence, will also ensure that any associates of the accused are excluded from the court room.
I am watching very closely the trials we are developing in the Alyangula Court House where intimidation or attempted intimidation of victims and witnesses giving evidence in support of victims has been identified as a particular problem. We will be installing and trialling both video-conferencing links to separate the witnesses and victims from the alleged perpetrator and their associates, and we will be looking at what impact that has on the outcomes of those cases.
New section 21B(3) allows for cross-examination of children in court. The bill must permit that evidence be tested. I cannot believe the member opposite does not believe evidence needs to be tested, even when it is evidence being given by a child victim or witness. Justice requires this to be carried out. What we have done is put in place all the measures to ensure that it is done in the least traumatic manner to the witness. I remind members that the same principle applies to our response to the proffering of customary law evidence in court hearings. It is exactly the same principle: if evidence is submitted to a court, it must be tested to the highest degree that the court can facilitate. This is exactly the same principle. To think of any witness being able to give evidence without the capacity for the court to fully test that evidence is simply not in the interests of justice. I do not accept for a minute the member’s proposition that we somehow curtail that testing process.
What I also do not accept is that if you are going to test the child’s evidence, at least constrain that process to a single event, rather than have it occur both in the commital stage and the trial itself.
Turning to video tape and equipment, the member claims the bill allows for such recording at any time. Yes, this is to allow maximum flexibility. However, it is illogical to go to trial without it happening beforehand. If anything further needs to be recorded, the hearing will not commence until the pre-recording takes place.
On the issue of unrepresented defendants, a defendant will be in the same room as the judge and normal practices will prevail. They will not be in the same room as the vulnerable witness in a special hearing.
I covered the definition of ‘special measures’ in my earlier comments. I again say that the provisions within our bill today are wider and more specific than the Victorian Evidence (Audio Visual and Audio Linking) Act, which the member has been citing as being the bees knees of provisions around the country. This is simply not true and she needs to read a bit more widely as to the …
Ms CARNEY: A point of order, Madam Speaker. The Attorney-General suggested that I suggested that Victorian legislation is the bees knees. Not at all; I merely suggested to him that he may wish to borrow one paragraph of a subsection …
Members interjecting.
Mr Kiely: Isn’t that a personal explanation? Why don’t you learn standing orders? It is a point of explanation.
Madam SPEAKER: Member for Sanderson, that is unnecessary. There is no point of order, as you know.
Dr TOYNE: Thank you, Madam Speaker. There is no doubt that the member is enamoured of the Victorian legislation so she can complain all she likes. If you put something on record I have every right to use it in debate.
In terms of playing dictionary games with the principles in this bill, there are many understood terms within our courts. There have been numerous proceedings in which principles of law have been defined through repeated use and testing. Terms such as what is ‘in the best interests of the child’ have been used as an overarching principle in law for many years now. In the case of that particular principle, the courts have no problems administering or applying that principle to the outcomes of court hearings.
The member clearly has no confidence in the judiciary to understand principles or special measures.
Ms Carney: Rubbish! Not even you believe that.
Mr Dunham: You are arguing that the bill is redundant. You know that, don’t you?
Dr TOYNE: I am simply saying our courts not only have the capacity to do that, but they have demonstrated that capacity on many occasions in the past. Again, I totally reject the member’s lack of confidence in our courts to use their undoubted ability to apply the principles that we have included in the bill.
Mr Dunham: Is the bill a vote of no confidence?
Ms Carney: It is a vote of no confidence in you and your bill.
Madam SPEAKER: Order!
Dr TOYNE: Madam Speaker, there was an extraordinary suggestion in the member’s contribution that since this bill requires a witness to be treated with dignity and respect at section 21D(2)(b), somehow all other law in existence means that other witnesses do not deserve that level of treatment. It is an absurd argument. These are measures, which will guide the process …
Ms CARNEY: A point of order, Madam Speaker! The Attorney-General is attributing to me words that I did not say and propositions I did not put. I remind the Attorney-General to be honest when he is replying in this debate.
Madam SPEAKER: Member for Araluen, you can always make a personal explanation or explanation of speech if you think you have been misquoted.
Dr TOYNE: Madam Speaker, I want to point out that I heard the member out in silence, despite some of the ridiculous things she was saying, and I want to continue my contribution uninterrupted.
The claim that intimidation is an essential component of the advocacy process shows how committed the member is to protecting child witnesses. Oh, heavens above, we cannot allow them not to be intimidated. That is absolutely …
Ms CARNEY: Madam Speaker, I object very strongly. He is lying! He is lying! He is lying!
Members interjecting.
Madam SPEAKER: Order! Order!
Ms CARNEY: How dare he?
Madam SPEAKER: Member for Araluen!
Ms CARNEY: Madam Speaker, please! I will withdraw ‘lying’ and substitute it with ‘misleading’ if I may, Madam Speaker.
Madam SPEAKER: Member for Araluen, just try to contain yourself. You can have your response in time, but you know that was out of order.
Members interjecting.
Madam SPEAKER: Order! Minister.
Dr TOYNE: On this particular point, I leave the member to her world where she seems to think that it is okay to intimidate children in court. We introduced this bill for exactly to …
Ms Carney: You pig!
Members interjecting.
Dr BURNS: Madam Speaker, a point of order. The member for Araluen just said ‘You pig!’ She has to learn that this is a parliament, not a pig sty.
Mr Elferink: Are you going to give us a lecture on decorum, are you, Sunshine?
Madam SPEAKER: Member for Araluen. Withdraw, thank you, if you made that remark.
Ms CARNEY: I withdraw ‘pig’ Madam Speaker.
Madam SPEAKER: Now, let us just settle down. You will all have your chance to respond. Minister.
Members interjecting.
Mr Elferink: You, mate, are a grub of the lowest order. Don’t you ever come in here …
Dr Burns: Don’t point at me!
Mr Elferink: Why? Does it upset you?
Mr KIELY: A point of order Madam Speaker! The member for Macdonnell is standing over there making threats to the member for Johnston.
Madam SPEAKER: Member for Macdonnell, just contain yourself!
Mr ELFERINK: Speaking to the point of order, Madam Speaker, I made no threat whatsoever and he is just making stuff up. This House has to be under control, Madam Speaker, and he is not controlling himself.
Madam SPEAKER: I think you need to practice what you preach. Minister, in finishing your debate, would you perhaps refrain from provocative comments and we might get through it?
Dr TOYNE: I will be glad to finish the debate on the bill, Madam Speaker, and I intend to do that.
Madam Speaker, much of the member’s concern about the wording of the bill is a matter of semantics. Her contrasting of ‘must’ and ‘should’ in section 21D(2)(d), and the phrase that proceedings ‘should’ be resolved as soon as possible, and the member suggesting that we should be saying ‘must’ be resolved as soon as possible. Again, we get down to the principle very clearly stated in the provisions in the bill that we want proceedings to be resolved as quickly as possible within the bounds of achieving a just and thorough hearing of the case. To be defining this in such a prescriptive manner again denies the judgments that the court has to make continually in progressing a case.
We believe that our courts are capable of making these judgments about what is both in the interests of the child victim to resolve the matter as quickly as possible, but balancing that against the absolute responsibility of the courts to ensure that a fair trial has been provided for both the victim and the accused. Again, we do not believe that legislation should be prescribing absolutely the way a court hearing should proceed.
Another point raised was the use of pre-recorded video evidence, and why not make this available more widely to female victims instead of just children and vulnerable witnesses? The recommendation of the Law Reform Committee in relation to the use of pre-recorded evidence focussed on taking evidence from the most vulnerable victims. This is consistent with models in other jurisdictions. The bill introduces other mechanisms that will reduce the trauma associated with giving evidence for adults. These include the introduction of time limits and the requirements to close the court while evidence is given. Existing vulnerable witnesses provisions in the Evidence Act also provide assistance to adult victims who give evidence.
The final point was the question of time limits. We have introduced in clause 17 of the bill a requirement for a trial to commence in three months. This will require all parties to focus clearly on the need to get the matter on, and there is a very sensible provision in the bill recognising that there may and probably will be occasions when, because of the complexity of the investigation or the need to finalise forensic evidence, that time period needs to be extended. That is at the discretion of the courts.
Victoria has the same provision in their legislation, and it has been there for a number of years now. What we have heard from the Victorian courts is that there is no problem dealing with a time limited structure for these types of offences. Court proceedings have actually got on earlier than they did prior to that provision being introduced. That is the aim of this provision in our case. We are very encouraged by what has happened in Victoria when those provisions were enacted there. We believe putting time limits in place is sending a strong signal to our courts to try to get these matters resolved as quickly as possible and it is very consistent with the other provisions in the bill.
I believe I have covered most of the member’s points that she raised in her contribution. I am disappointed that, after having said that she supported the bill, for some reason out on the public record she is now offering pungent opposition to it. I can assure the member that while the world sometimes does not accord in detail …
Madam SPEAKER: Minister, your time has expired.
Mr STIRLING: Madam Speaker, I move that the minister be granted an extension of time such that he may complete his remarks.
Motion agreed to.
Dr TOYNE: Madam Speaker, I wish to report a Clerk’s amendment, which was picked up as the bill was prepared for presentation to parliament. In subsection 21B, Pre-recorded evidence of certain vulnerable witnesses, the amendment substitutes the wording in subsection (3): ‘If pre-recorded evidence is given in subsection (1)(a)’, it now becomes ‘(2)(a)’, and in (4) of that same clause: ‘If evidence is given by video tape or other means under subsection (1)(b)’ should read: ‘subsection (2)(b)’. It is what is known technically as ‘a typo’.
Motion agreed to; bill read a second time.
Debate suspended until after Question Time.
PERSONAL EXPLANATION
Member for Araluen
Member for Araluen
Madam SPEAKER: Members, I have given the member for Araluen permission to make a personal explanation about some issues on which she felt she was misquoted.
Ms CARNEY (Araluen): Madam Speaker, I seek to make a personal explanation in relation to allegations made by the Attorney-General this morning in which he both misquoted and misunderstood me.
First, he alleged that I believe that witnesses should be intimidated when giving their evidence. What I said was, and I quote:
- Almost every person I know who has given evidence says that they were intimidated. It is, by its
nature, intimidating …
I went on to say:
- It is, is it not, potentially the case that every child who is questioned about the veracity of his or her claims
that they were sexually assaulted will feel or will be intimidated? Yet this bill directs that a child must not
be intimidated. This is an absurd direction to include in legislation. If it were not so serious, it would be
a joke.
In relation to the second allegation that I do not have confidence in the courts of the Northern Territory’s ability to make decisions, I say in light of some of the prescriptive parts of the bill, such as those contained in section 21D(2), it is the Attorney-General who, some might conclude, does not have faith in the justice system. His comments in any event were extraordinary and offensive.
Third, the allegation that I believe that the Victorian Evidence (Audio-Visual and Audio Linking) Act is, to use his words, ‘the bees knees’ of Australian legislation. First, in respect of this, the Attorney-General should not presume to know my views about that act. Second, what I said was: ‘If it …’ meaning government ‘… does not want to repeal that subsection …’ referring, of course, to subsection (a) of (2)(A) of section 21A of the Evidence Act, I said: ‘If it does not want to repeal that subsection, and it should, but if the Attorney-General cannot bring himself to get rid of it, he could amend it by borrowing from the Victorian Evidence (Audio-Visual and Audio Linking) Act and amend subsection (A) to read: “in the best interests of the child and consistent with the interests of justice”.’
EVIDENCE REFORM (CHILDREN AND SEXUAL OFFENCES) BILL
(Serial 240)
(Serial 240)
Continued from earlier this day.
In committee:
Clauses 1 to 5, by leave, taken together and agreed to.
Clause 6:
Ms CARNEY: Clause 6 in the bill details pre-recorded evidence of certain vulnerable witnesses. As I said in my reply to your second reading speech, it does not include the crimes of murder and manslaughter. Why is that?
Dr TOYNE: One good reason is that the victims are dead, so they do not need to be protected when giving evidence. The second reason is that it was the clear intent to make the focus of this bill offences involving children as victims.
Ms CARNEY: You are aware that this bill that you have presented applies to victims and witnesses, are you not?
Dr TOYNE: Yes.
Ms CARNEY: Yes. Is it not the case that children can witness murder and manslaughter?
Dr TOYNE: Yes.
Ms CARNEY: Yes. Therefore, as witnesses who might be vulnerable, having witnessed a murder or a manslaughter, why is it that murder and manslaughter have been excluded from this bill when something like grievous harm or common assault is included?
Dr TOYNE: We have had an extended discussion of the point that you are making. Certainly, in cases where children witnessed killing offences, they will be dependent on existing vulnerable witness provisions within the act.
What I find very strange about this is that you have made this point on the floor in the absence of any either prior negotiation of the contents of this bill or …
Ms Carney: And that is relevant because?
Dr TOYNE: … circulating any sort of formal amendment …
Ms CARNEY: It is too much of a mess for amendments. If I had thought you would listen, I would have come to see you …
Mr CHAIRMAN: Order, order!
Dr TOYNE: You are obviously not showing any heartfelt commitment to the …
Ms CARNEY: Oh, do not carry on. Sit down if that is your answer.
Dr TOYNE: There is a process that we have been through – what? - 87 times now on bills that I have presented. I have made it very clear right from bill number 1 some three years ago that we not only offer a process of negotiation on amendments that have merit, but the process I indicated at the time was that you can assess the bill, have a look at any areas that you feel could be improved by further amendment, and you can negotiate that with us to give us a chance to have it assessed by the capacity of our agency. If they have merit, we pick them up. We have done that on quite a number of occasions over the history that I have been carrying legislation through this House.
It is simply impossible to assess the impact of the change you appear to be arguing. You are not proposing any amendment that we have to decide upon. We will have a look at it and, if there is a gap there, we will fill it. However, we cannot do it through this process that you are talking about.
Mr DUNHAM: A point of order, Mr Chairman. What the Attorney-General said is amazing. He used the word ‘impossible’. It is impossible for him to assess and amend a bill in this parliament on debate. I find that grasp of standing orders absolutely astonishing. The whole purpose of debate is to enable various views of members to participate and is extremely common, including your pool fencing by laws …
Mr CHAIRMAN: What is the point of order?
Mr Burke: He is talking in committee.
Mr CHAIRMAN: Yes, but you raised a point of order. I wonder what it is.
Mr DUNHAM: What I am saying, Mr Chairman, is going into committee and discussing the innards of the legislation is entirely the proper way for us to seek to amend legislation. Amendments can be made from the floor and on our feet and the Attorney-General should not describe such a process as impossible.
Mr CHAIRMAN: I understand where you are coming from, but I do not think there is a point of order. Member for Araluen.
Ms CARNEY: Thank you, Mr Chairman. It is the case, Attorney-General, that some of the things you did say were extraordinary. In relation to an offer as you described it to, as I understand it, come and see you about legislation, if I thought you and your staff would listen, I would.
If I thought you acted with any degree or any sense of honour these days, I would. Given that you and your office do not, I am in a position where I need to do what I can legitimately on the floor of this parliament and, as the member for Drysdale said, there is provision to amend any legislation on the floor of this parliament. I have my standing orders here; you might like to have a look at yours.
Now, what you did not say in your answer, however, is you did not answer the question. Why have murder and manslaughter been excluded? Or perhaps I could put it this way: did you, with all of the resources that you have, as opposed to those I have, consider it? If so, what was the basis upon which you chose to exclude murder and manslaughter from this proposed section?
Dr TOYNE: Mr Chairman, the basis is probably encapsulated in the title of the bill: the Evidence Reform (Children and Sexual Offences) Bill. The focus was very clearly on children as victims. Children involved in killing offences as victims are not alive to give evidence, so by definition are not the focus of this legislation. The other part of it is sexual offences. We were very clearly focussing on the same raft of offences that you have often talked about in parliament from your maiden speech onwards. We made that the focus of this legislation.
The aim of the legislation is to provide very widespread additional protection for children who are victims and, as a secondary issue, witnesses to these types of offences.
Any legislation introduced will have a certain degree of currency over the total area of offending. I think the member has been very carefully avoiding acknowledging the fact that the contents of this bill give absolutely significant new support to children victims and to children in general appearing in court cases.
You can concentrate if you like on the areas that you consider to be omissions, but I am concentrating on the fact that when we pass this bill today, and I am sure that it will be passed, that there will be absolutely significant new support and protection for children who have suffered, in many cases, an enormous amount of trauma even before they walk through the court room door. That is my focus.
Now you can pick away, and you can call me dishonourable if you like. I am not going to be dissuaded from taking this legislation through to conclusion today for one reason: I do not want another day to go past where we do not offer a changed process in our courts to not only protect these victims from further being traumatised by the court process itself, but also I cannot wait to see that we get an impact on the conviction rates for these types of offences.
That is what this is all about. It is not about picking around on legal technicalities; we have to support these children. They have been victimised enough already and we don’t want the court process to victimise them further.
Ms CARNEY: Attorney-General, you said some conflicting things. One was that the focus of this bill was on sexual offences. You may recall that in my reply, I referred to seven or eight offences that covered everything from acts intended to cause grievous harm, grievous harm, endangering life, bodily harm and common assault, so it is not actually the case that this is focussed on sexual assaults only. I put that to you for your consideration.
The second thing you said was that you were keen to get this through today because you were not prepared to wait for one more day to go by where children are traumatised. I put it to you that in fact you are prepared to wait in respect of witnesses who are children who have witnessed crimes of manslaughter and murder. Why are child witnesses in those cases excluded from this legislation which, by its contents, is not confined to sexual offences anyway?
Dr TOYNE: You have made your point, I gave my reply. Let’s move on.
Ms CARNEY: Well, I cannot get any sense. Would you …
Dr TOYNE: I have made my point.
Ms CARNEY: I will put something to you and I hope that you will agree, although your arrogance suggests that you won’t.
Dr TOYNE: Dishonourable and arrogant.
Ms CARNEY: Would you be prepared right now for us to get an amendment done? It has clearly been an omission. I know that and you know that …
Dr TOYNE: No.
Ms CARNEY: You are not prepared to amend the bill to say that children who witness crimes of murder and manslaughter have the same entitlements under this bill as other children?
Dr TOYNE: If you really felt that, where is your amendment? Let us move on.
Ms CARNEY: That is your attitude?
Dr TOYNE: Let’s move on.
Ms CARNEY: That is your attitude? That is an incredible attitude from the Territory’s first law officer and one which I have already conveyed to a number of people around the Territory, but your quotes in committee stage are going to be a laugh.
Mr CHAIRMAN: Are you moving on from clause 6, member for Araluen?
Ms CARNEY: I am still on clause 6, Mr Chairman. Yes. This is the pre-recording of evidence. You will note that I raised a number of concerns about what happens to the video.
I suggested that it could be given to an offender, it might be edited and then end up on the Internet. As some people know, when a child gives evidence, particularly in sexual assault cases, it is the case that some people might find that evidence of particular interest. I refer in particular to the sick pups who not only surf the Net chasing child pornography, but who generally get off on this sort of stuff, to put it as plainly as I can. That is a concern.
In my speech, I outlined some other concerns about what might happen to the video. In Western Australia, in section 106M(a) of the relevant legislation, they provided a section headed ‘Unauthorised Possession or Dealing in Video Taped Evidence’, which prohibits people from using it and prescribes a financial penalty. I am wondering whether you entertained the idea of taking that clause from the Western Australian legislation and putting it in the bill since you said in your second reading speech that the bill is, to a large extent, modelled on the Western Australian legislation.
Dr TOYNE: Mr Chairman, of all the things you have said that are quite insulting to the integrity of our courts, this is probably one of the most appalling examples.
Courts are well aware of their obligations to manage issues such as sensitive material. They exercise those powers all the time. Courts can suppress names and close courts during proceedings dealing with such sensitive material. They manage that on difficult prosecutions every day of their operation. The court’s ability to make an order on the use, existence, misuse of materials, is inherent in their jurisdiction. They have the power to punish under contempt of court for such misuse or contravening of an order by the court. What you are inherently saying is that unless we legislate to tell the courts that they cannot allow the misuse of this material, they will simply not be trusted to carry out the functions they already have a huge track record of dealing with.
I am aware of the Western Australian provision. We do not believe that we need a legislative provision to tell the courts what they already know, which is that if sensitive material is involved in a hearing, it is very much the jurisdiction of the court to make sure that such sensitive material will be protected from misuse.
I said earlier in debate that the court has the capacity to make orders and guidelines to direct the deposition of this material, both during hearings and beyond. We will be in discussion with the Chief Justice about the best way to handle this, and we will certainly make available any of the input from the Department of Justice that he may call for as part of that process.
The bottom line on all this is that I trust our Chief Justice and his courts to take this matter to hand and to deal with this material. You clearly do not.
Ms CARNEY: First, you are quite wrong. You have, once again, either deliberately or inadvertently misunderstood my question.
Your arguments are completely inconsistent because you are saying in respect of this question that you trust the courts to act appropriately, yet, and I will come to it later, an example is the proposed new Section 21D. If you trust the courts so much, why do you prescribe things like: ‘the child must be treated with dignity, respect and compassion’; ‘the child must not be intimidated’; and ‘the court must take various measures’? So, do you see the inconsistency that in one part of your bill …
Dr TOYNE: No, I don’t. No, I don’t.
Ms CARNEY: Hang on. No, let me ask the question. In one part of your bill you are saying we are just going to leave it to the courts, and yet, in a couple of clauses over the page, you are actually being very prescriptive in what you are telling the court to do.
Dr TOYNE: Let me explain. In one case, there are some procedural arrangements that need to be put in place by the courts to ensure that such things as the security of sensitive material is handled with integrity. The courts, quite clearly, have a responsibility to ensure that there are orders and guidelines in place to ensure that happens.
The principles in this bill will have a completely different purpose. The principles are not enforcing specific arrangements on the operation of a court hearing. What they are indicating through the legislation, and it is very often done by governments, and increasingly so, is to clearly indicate the intention of this parliament in the legislation.
It tells the court what we had in mind when we introduced this legislation. It gives the courts an indication of what outcomes the community, through its parliament, wants from the operation of the courts around this area of law. They are not enforceable in the detail of the way a court is to operate; they are principles, as the name suggests, of which the court should be aware when it is conducting a hearing.
Ms CARNEY: Okay. As I understood your answer, you do not accept that by not providing a sanction in relation to the improper use of video material, that it is not inconsistent with something like, say, the proposed section 21D. It is difficult to reconcile. It does not make any sense. However, you said that you were aware of a section of the equivalent Western Australia act to which I referred, section 106M(a), I wonder whether you are also aware of section 106M(b), which is headed ‘Broadcast of video taped evidence prohibited’ and it says:
- … a person shall not broadcast a video tape recording of evidence or any part of such recording except with
the approval of the Supreme Court and in accordance with any condition attached.
It prescribes a penalty of $100 000 or imprisonment for 12 months, not penalties that I have ever heard in relation to contempt of court. They are significant penalties and the legislature has been very clear in expressly prohibiting this.
Do you accept that the better view, like the Western Australians and other jurisdictions, would be to specifically prohibit the broadcast of video tapes of children giving evidence in sexual assault cases and come up with a similarly high penalty, such as $100 000 or 12 months in prison or both?
Dr TOYNE: We probably have a fairly fundamental difference in outlook on the relationship between the legislation and the courts, and the need for the courts to not only exercise discretion in hearings, but for legislation to actually preserve that discretion. Either you trust the courts to make competent decisions and arrangements to maintain the integrity of not only the processes they are following in sensitive areas, but also maintain the integrity of restricting access to that sensitive material or its dissemination.
As much as I would love to think that every word of legislation we pass through this parliament changes life 100% to the intended purpose of the legislation, the reality is that what happens in the court through its guidelines, through its orders and, most importantly, through the individual competence and judgment of the judge who presides over that hearing is far more important than anything that we could put around it in legislation that is trying to guarantee that nothing will be mishandled regarding the matters you are talking about.
That is the view I have taken; that is the advice that I have received arising from the work that has gone in to this bill. You clearly do not agree; you probably never will agree on this. You want to legislate to tell the court that we will take away the general contempt of court provisions available for every hearing that occurs. If material is deliberately misused by a participant or another party coming out of the court hearing, contempt provisions are there to deal with that.
I have said this repeatedly: our courts are competent to operate on that basis. I do not feel the need to individually legislate against potential mishandling incidents. The reality is, on a vast number of occasions our courts are already dealing with sensitive material that could potentially get out into the community and potentially be misused by some individual. The reality is that that rarely, if ever, happens. That is where I am basing my faith; we do not have a record of this getting out into the community.
I find it absolutely bizarre that you are sitting there obviously trying to tear brick by brick away from this legislation …
Ms Carney: Because it is very bad legislation.
Dr TOYNE: It is not bad legislation!
Ms Carney: Very bad legislation.
Dr TOYNE: It is not bad legislation!
Ms Carney: It is. It is not good. It is stuffed up.
Dr TOYNE: You were saying it was good legislation several weeks ago. It is still on your web site.
Ms Carney: It is cut and paste and it is not a good result.
Dr TOYNE: Do not tell me that suddenly, it is bad legislation and you are going to sit here for the next three hours telling me …
Ms Carney: I take this legislation more seriously than you apparently, which is amazing.
Dr TOYNE: ... all the things that could, in Noddy Land, go wrong with this legislation. My best advice on the amount of work, and there has been an enormous amount of work put into this …
Ms Carney: It has not been worked on hard enough.
Dr TOYNE: … is that these provisions are going to be an enormous new support. I am going to get on with this and we are going to put it into our courts and we are going to start using it.
Ms CARNEY: Yes, and unless you amend it, unless you defer debate on this bill, you will be back here amending it. Although you are so ego driven, you probably will desist …
Mr KIELY: A point of order! Mr Chairman, we are here to debate the bill.
Mr CHAIRMAN: What is your point of order?
Mr KIELY: The point of order is relevance. This is not relevant to what we are doing here at the moment.
Mr CHAIRMAN: There is no point of order.
Ms CARNEY: My point is that I do not think you will be able to bring yourself to amend what is quite bad legislation.
I will not deal with some of your other comments because it is unnecessary for me to do so. You understand, I hope, that you are relying on contempt and you seem to be suggesting that no one will use the video evidence of a child giving evidence about a sexual assault because miraculously, a court will charge you with contempt. The court has to make an order that is breached in order for someone to be in contempt of court in many cases, but not all.
We are substituting evidence in sexual assault cases that has only ever been in statement form - not something the sick pups on the Internet get off on as a matter of course - with a video, which is a living, breathing document that has very personal and very sensitive details in it. Isn’t it time that you specifically produced a penalty for the unauthorised and improper use of that? It is not something we have had to deal with before. You cannot just say there is a contempt provision so therefore I am not obliged to amend the bill.
This will be my final question on this point, but certainly there will be others. Are you saying that you do not believe it is possible for an offender to get hold of the evidence of a child in sexual assault cases and that it is not possible for that person to edit it and then it ends up on the Internet? I think it is possible. I want to know what you are going to do about it and why haven’t you imposed a penalty?
Dr TOYNE: Mr Chairman, your scenario is that if anything possible could go wrong with legislative provisions once they get out into the real world, you somehow do not legislate. If that were the case, we would not pass any bill through this House. I have said my piece about this. There are processes and protections in the way the courts currently operate and the provisions available to the court. You clearly differ in opinion. That is all it is; a difference of opinion. I do not accept your opinion as being superior in any way to the one that has been developed in our process. Let’s move on.
Ms CARNEY: I am happy to move on. It is unfortunate that either for political reasons you are just refusing to have a serious engagement or exchange of views or whether you just do not understand it.
Mr CHAIRMAN: Are you still dealing with clause 6?
Ms CARNEY: Yes, thank you, Mr Chairman. I referred in my reply to CCTV and I mentioned that pursuant to clause 6, the prosecution can elect to use video evidence. I said that a senior Darwin prosecutor had informed me that CCTV is used in about 15% to 20% of cases in Darwin. Do you have figures on how often witnesses in sexual assault matters use CCTV in Darwin, Katherine, Tennant Creek and Alice Springs?
Dr TOYNE: Mr Chairman, why would I?
Ms CARNEY: You are joking.
Dr TOYNE: For one thing, I am not sure what the basis of your question is because it is only one of a number of things that are used to provide separation between the victim or witness and the alleged offenders and their associates.
Why would I have that here when you have not foreshadowed it up to the time that you made it a feature of this debate? Why did you not come to us with that? The bill was tabled two months ago. Suddenly, you bring it up and expect me to have the figures here in front of me. Well, I am sorry, I do not have them.
Ms CARNEY: I raised it a number of hours ago. I would have thought any Attorney-General worth his salt and his staff …
Ms LAWRIE: A point of order, Mr Chairman. Standing Order 62, offensive or unbecoming words. We have heard a constant stream of …
Mr CHAIRMAN: No.
Ms LAWRIE: Let me finish, please, Mr Chairman. I am referring to a standing order.
Mr CHAIRMAN: I am ruling on that and saying that there is no point of order.
Dr TOYNE: Right. So it is all right that I am called ‘dishonourable’?
Ms LAWRIE: So the standing orders do not stand? I was going to quote.
Mr CHAIRMAN: Yes, I know what you are quoting.
Ms LAWRIE: The order reads:
- … all offensive references to a member’s private affairs and all personal reflections on members shall be
deemed to be highly disorderly.
We have heard a lot of them ...
Ms CARNEY: Speaking to the point of order, Mr Chairman.
Mr CHAIRMAN: Just one second.
Dr TOYNE: It is her mode of operation, Mr Chairman.
Mr CHAIRMAN: Can you say, member for Karama, exactly what the words were that were offensive, please?
Ms LAWRIE: Yes. Dishonourable, the attacks on the character of the Attorney-General …
Ms CARNEY: That was not the point of order, Mr Chairman.
Mr CHAIRMAN: No, no the particular phrase that was used when you raised the point of order.
Ms CARNEY: I will repeat what I said, if you like.
Ms LAWRIE: Yes.
Ms CARNEY: Any Attorney-General worth his salt or his staff …
Ms LAWRIE: Right! Worth his salt. Impugning the character of the Attorney-General, again.
Mr CHAIRMAN: No, there is no point of order.
Mr KIELY: A point of order, Mr Chairman. From that comment, the member for Araluen was also critical of departmental officers, which is not …
Ms Carney: That is not correct.
Mr KIELY: … appropriate parliamentary behaviour. She was offensive and critical of the people in the department who drafted this legislation. Clearly, I heard the member say: ‘The Attorney-General and the people who drafted this are not worth their salt’
Ms CARNEY: Sit down!
Mr CHAIRMAN: Order!
Mr KIELY: That, I believe, is a breach of Standing Order 62 and is offensive to departmental officers.
Mr CHAIRMAN: There is no point of order. I have taken advice on that. No point of order.
Ms CARNEY: Thank you, Mr Chairman. Given that information comes from the fifth floor with great speed on occasion, I note that I raised this matter many hours ago. It is disappointing that you do not have the information to hand. You will remember …
Mr Henderson: Where are your amendments?
Ms CARNEY: If you would like to just sit there quietly, member for Wanguri, you would be doing us all a favour.
Mr CHAIRMAN: Order, order!
Ms CARNEY: I told you that I was advised by a senior Darwin prosecutor that CCTV is not used very often. I know it is not used in Alice Springs, for instance, very often, probably only three times in 12 months, something like that. So it is not used very often.
The reason I raised that, Attorney-General, is that at the same time in this bill, you are giving to the prosecution, the same prosecutors who do not use CCTV, and they are able to do it for all sexual assault cases, the ability to elect to run a case where people give evidence by video. My question is: do you agree that given that prosecutors are generally disinclined to use CCTV, which is a fact, might they equally be disinclined to elect to run a case by video evidence?
Mr KIELY: A point of order, Mr Chairman. The member is asking for an opinion from the Attorney-General. It has nothing to do with the legislation. She is asking the Attorney-General does he believe they would be inclined. I do not see the relevance of this to the legislation. His views on whether a prosecutor will be inclined or not has nothing to do with the legislation.
Mr CHAIRMAN: Member for Sanderson.
Mr KIELY: What is the relevance?
Mr CHAIRMAN: Member for Sanderson, there is no point of order. I will let the Attorney-General answer the question.
Dr TOYNE: The issues that you are raising relate to operations, staff development, attitudes and culture in the way people choose or choose not to use technologies or the various options they have for the taking of evidence.
It is not for legislation to mandate that prosecutors must use CCTV or anything else. What legislation has to do is to provide the opportunity to conduct the hearing in a particular structure, and the practicalities of how that is achieved in a court hearing is not only a matter of what is available and the space in which a court might be operating, it is also a matter of judgment for the prosecutors as to what best suits the needs of their client and what is most likely to provide an effective outcome of the hearing.
It is important to keep the boundary between what legislation should deal with and what operational arrangements are in place in our courts.
Mr CHAIRMAN: Member for Araluen, are you continuing on this line of questioning?
Ms CARNEY: Just a couple more on this, yes.
Mr CHAIRMAN: From the point of view of relevance, can you give me some specificity about which section this is refers to?
Ms CARNEY: It is clause 6 and the proposed new section 21B.
Mr CHAIRMAN: And what part of that?
Ms CARNEY: Subsection 2.
Mr CHAIRMAN: Thank you. I have to keep an eye on the relevance of what you are requesting there.
Ms CARNEY: It is about pre-recorded evidence, Mr Chairman, and vulnerable witnesses, so of course, the use of a CCTV is illustrative of the fact that it is unwise to simply give the discretion to prosecutors. However …
Dr TOYNE: A point of order, Mr Chairman! Could the member please direct us to which particular line or provision in this we are actually talking about? She seems to be jumping around between CCTV and all sorts of things.
Ms CARNEY: Subsection (2):
- … in relation to an offence, at the election of the prosecution …
That one.
Mr CHAIRMAN: Clause 6(2), Attorney-General.
Dr TOYNE: Okay.
Ms CARNEY: Yes, that one. That is the issue: ‘at the election of the prosecution’, like, the prosecution elects whether or not to use CCTV.
In your answer, as I understood it, you were saying: ‘This is okay, it is operational stuff, it is for prosecutors to decide’, and you said it is not for you to mandate to prosecutors in legislation those sorts of operational matters.
There are other examples, but how do you reconcile that with proposed section 21D, where you mandate in very severe terms that a court must do this and must do that? Your argument is an inconsistent one. However, did you consider any other models before getting to the position where you came up with what you have here, that is, that it would simply be at the election of the prosecution to proceed by way of video evidence? Did you look at any other models and what where they?
Dr TOYNE: I believe I have made this point before: 21D are principles. They are simply indicating to the courts the intent of this legislation, what we want to see in the broad, or how we want to see, as a parliament, the interests of children going through the court processes handled. Section 21B is about the means by which evidence is adduced by a court. That is very specific and is dealing with the options that could be used within the hearing at the election of the prosecution for adducing evidence from child witnesses. One is quite a specific indication to the court as to what type of evidence it will be dealing with, and can be dealing with, at the discretion of prosecution. The other is simply the broad principles regarding the interests of the child.
Ms CARNEY: Still in relation to new section 21B(2), for the benefit of the Chairman and you, we are still talking about video evidence, Attorney-General, are you aware that at the court house at Alice Springs there is no video recording equipment? If you are aware of that, could you advise whether the other courts in the Northern Territory have videos …
Mr KIELY: A point of order, Mr Chairman, relevance of that question to this bill. The fit-out of court rooms around the Territory has nothing at all to do with this bill.
Ms CARNEY: Can I speak to the point of order?
Mr CHAIRMAN: I will rule on the point of order. On advice, there is no point of order. This section deals with pre-recordings and the question is allowed.
Dr TOYNE: The first thing is that we are not here to debate fit-out, as the member for Sanderson said. This is legislation that establishes a process that we expect the courts to facilitate.
Like any legislation, there will be the need to resource the operations of the courts to reflect the legislation. Court Support Services advises that recording facilities are available in all Supreme Courts and they are attached to the closed-circuit television system. They do exist, they can be used. I believe we should get back to the legislation.
Ms CARNEY: This is all about the legislation, this part of the legislation being about …
Dr TOYNE: No, it is not. It is about the resources of the courts.
Ms CARNEY: … the video recording of evidence. You were on notice of this, as well. I will not ask you all these questions separately, I will bundle them together. Something in the nature of a sensible explanation would be of assistance. Who do you propose - Attorney-General, if you find legislation like this funny then, good for you. I do not.
Mr KIELY: A point of order, Mr Chairman!
Ms CARNEY: You are shaking your head; you are smirking. This is a serious question …
Mr KIELY: A point of order, Mr Chairman! Under Standing Order 62, once again. It is offensive to infer that the Attorney-General, who brings legislation into this House - any legislation, no matter what it is; it is always a serious issue in parliament - believes it to be funny. That is offensive to his office.
Mr CHAIRMAN: There is no point of order. Member for Araluen, please stick to the question, with not so much comment.
Ms CARNEY: I will if the Attorney-General does, but I note your comments, Mr Chairman, and that is fair enough.
Mr CHAIRMAN: No, member for Araluen!
Ms CARNEY: Attorney-General, who do you anticipate will operate the video equipment? Who will be trained? What sort of recording will occur? Do you anticipate close-up shots of a distressed and crying child? Do you have any idea of whether a shot might be taken from 20 feet back? Will the child …
Mr HENDERSON: A point of order, Mr Chairman! The member for Araluen is treating this process with absolute contempt. We are talking about legislation that protects vulnerable child witnesses in extremely distressing circumstances …
Mr CHAIRMAN: What is your point of order, please?
Mr HENDERSON: I ask her to keep her comments confined to the bill. The training of operators as to how they use equipment has nothing to do with this bill and I would urge you rule it out of order, otherwise I will put the clause.
Mr CHAIRMAN: Minister, I will take advice. The ruling is that we are dealing with pre-recorded evidence. If the member can link the matters she is referring to with the legislation, it will be allowed.
Ms CARNEY: Can you answer those questions? Who will operate it? What sort of recording …
Dr TOYNE: Yes. Court officers is your answer. That is your answer: court officers.
Ms CARNEY: Sorry?
Dr TOYNE: Court officers!
Ms CARNEY: Court officers. Have you given any consideration to matters such as how close up the person will be recorded; whether a child might be required to sit in a witness box? You can shake your head, but it has been considered in other parts of the world. It is not just me saying this stuff. If you knew your subject matter well enough, you would know this. So, please do not shake your head; I am putting to you very serious questions and I would be grateful if you would provide serious and sensible answers.
Mr KIELY: A point of order, Mr Chairman. The member for Araluen is attributing physical actions to the Attorney-General who is clearly not making them. She should confine her remarks to factual events in this House and not attribute any actions to the Attorney-General when clearly it is not so.
Mr CHAIRMAN: There is no point of order. Member for Araluen, please keep your comments to the bare minimum.
Ms CARNEY: In response, Mr Chairman, this Hansard will be sent to a number of interested stakeholders. Given that the Attorney-General is, on occasion, shaking his head and smirking, I think those reading Hansard are entitled …
Dr BURNS: A point of order, Mr Chairman. The Attorney-General was not smirking …
Ms Carney: Well, not just then, but earlier.
Dr BURNS: … and this member is making all sorts of inferences, trying to get them on the record. It is shameful, and she should be called to order on it.
Members interjecting.
Mr CHAIRMAN: Order! There is no point of order, but, member for Araluen, please ask questions specific to clause 6.
Ms CARNEY: Thank you, Mr Chairman. Will a child be required to sit in a witness box, as occurs in some countries? Or will a child be allowed to sit on the floor? Who might make those decisions? Will it be recorded in the court? Have you considered a reform such as the video taping of evidence in informal surroundings as does happen in other jurisdictions? Have you also considered the removal of wigs and gowns when the video taping and questioning occurs?
Dr TOYNE: Mr Chairman, these are operational issues, and I daresay at Estimates next year, you can ask me all sorts of questions about what our court administration and court officers have done in relation to this legislation if you are interested in operational issues, as you can about the resource issues that you have attempted to bring into a debate on legislation. There are appropriate forums to handle different issues.
I would imagine, on the issues you are talking about, there will be operational arrangements. We will need to take into account the particular circumstances of the witness or victim. There will be technical issues in this as to what constitutes an effective recording of evidence.
That is not the purpose of this debate today. If we had to debate through every single operational issue that came out of every bill, it would be unworkable and totally inappropriate. So, as far as I am concerned, if you want to ask any further questions on operational issues, I am simply going to say: ‘Let’s get back to the legislation’.
Ms CARNEY: I am dealing with the legislation. You are ducking my questions and saying that is operational.
Dr TOYNE: It certainly is.
Ms CARNEY: Now, I see what you are doing. Well, you are. The case is in other jurisdictions they have considered this. In some legislation some of this stuff is actually prescribed or it is referred to in the directions that a court can make. It is very relevant. Call it operational if you will. I take that to be an admission that you have not considered it and you will work it out eventually. Do I think that’s a good idea? No, I do not. But, it is like pulling teeth, so I won’t pursue it. I have your answer, anyway, which illustrates, I think, that the act was not terribly well thought out.
Mr CHAIRMAN: Are we still dealing with clause 6, member for Araluen?
Ms CARNEY: Yes, I am, Mr Chairman. I refer you to proposed new section 21B(2)(a). That refers to examination-in-chief that ‘may be pre-recorded and given by video tape or other audiovisual means’. Minister, what are those other audiovisual means?
Dr TOYNE: Audio recordings, DVD, whatever is available and appropriate.
Ms CARNEY: You base that answer on – what? - your own understanding of ‘other audio visual means’? Where do you get that definition from?
Dr TOYNE: Probably from common sense as much as anything because there is a range of technologies available; they are used very widely through our community and the courts are no exception. I am sure the courts, like everyone else, will assess not only current technologies but new ones that come up and they will make appropriate arrangements to take such evidence. That might vary from court to court and from individual to individual, but it is a very clear term, ‘audio visual means’. If you are recording, I think everyone understands that.
Ms CARNEY: I take it that at no stage you considered, unlike the Western Australian parliament, to include a definition of, in the case that the Western Australians did, ‘video taped recording’. Did you consider the desirability of including a definition of this as has been done in other jurisdictions including Western Australia, upon which, as per your second reading speech, much of your bill is based?
Dr TOYNE: Again, we are straying into areas that are in the realm of common sense and operational arrangements. A reasonable person would know what a video tape is and what audio visual recordings are.
If you want to define absolutely everything in legislation, a bill would be the size of the longer Oxford Dictionary.
Ms CARNEY: It is what the definition of section of legislation is. You might be interested, and I say this just in passing, that in something like the Evidence Act, section 4 - it usually is in most legislation - there is a big chunk of definitions. Those sections define things like ‘document’. You might say that it is common sense. It even defines something like ‘judge’. You might say that is common sense. It goes on. You can’t seriously expect your answer to …
Mr Henderson: What is your point?
Ms CARNEY: Well, it is impossible for me …
Members interjecting.
Ms CARNEY: … to take it seriously. Don’t you come in here and say: ‘Listen, girlie, it is all a matter of common sense’ because it is not. You are the Attorney-General, for God’s sake.
Mr CHAIRMAN: Order!
Mr KIELY: A point of order!
Mr CHAIRMAN: Yes, order!
Ms CARNEY: You bring into parliament …
Members interjecting.
Mr CHAIRMAN: Order!
Ms CARNEY: … full of definitions and yet you do not even understand it.
Mr CHAIRMAN: Yes, member for Araluen, please withdraw that.
Ms CARNEY: Yes, thank you, I will, Mr Chairman.
Mr CHAIRMAN: Thank you. Continue, member for Araluen.
Ms CARNEY: Thank you, Mr Chairman. I am looking now at proposed new section 21B(3). You agreed that there was a typographical error there; that was good.
In relation to proposed section 21B(4), still in clause 6, and in particular (a), it refers to a ‘special hearing’. In Western Australia, again, they bothered to provide a definition of a special hearing in their legislation. I am wondering why it is not defined here. Did you give any thought to providing a definition? If so, why did you reject the need to do so?
Dr TOYNE: Mr Chairman, the definition issues that the member raised during the second reading debate have been passed back to Parliamentary Counsel. They have assured us that they have no concerns about the terms used in this bill or the likely level of understanding of those terms by the courts applying the legislation. While you might have a certain degree of concern about it, that is certainly not shared by whom I believe to be the most expert in drafting legislation.
A special hearing is pretty self-evident as to what is to happen. It is a pre-court case hearing where, in the presence of the accused, evidence is taken and recorded. What part of that wouldn’t you or a reasonable person understand? It is a very clear process spelt out in the bill. Sometimes, you have to rely on the clarity of the language in the bill and general common sense and the competence of our courts to apply them.
Ms CARNEY: I do have a question, but I refer again to the definition section of the Evidence Act. You have said, what part of the phrase ‘special hearing’ can’t people understand. Your argument is so flawed, so illogical that I am obliged to say, in relation to the definition section of the Evidence Act, what is it about the word ‘court’ that people do not understand? What is it about the word ‘document’ that people do not understand? What is it about the word ‘judge’ that people do not understand? Your argument is just not sound, and there is nothing I hate more than unsound arguments, but we will keep on.
Minister, can you advise what is intended to be done with unrepresented defendants? Are they permitted to be in the same room when a special hearing occurs?
Dr TOYNE: The accused or co-accused will be in one room with the judge, the vulnerable witnesses will be in a separate area without the accused or associates.
Ms CARNEY: Could you point me to that part of the bill that says that? I cannot see it. It may be there, but can you point me to the part of the bill that actually will ensure that an accused will be in a separate room when a special hearing occurs?
Dr TOYNE: This is subsection 4(b):
- … the defendant must be present at the special hearing but not in the same room as the witness.
Ms CARNEY: Yes. Thank you.
Mr Henderson: I thought you read this.
Ms CARNEY: Well, as I said, it may have been that, but …
Mr Henderson: What is this all about? I thought you had read it.
Mr CHAIRMAN: Order!
Ms CARNEY: So, out of all the points I have raised, I missed one!
Mr CHAIRMAN: Member for Araluen, order!
Ms CARNEY: Mr Chairman!
Mr CHAIRMAN: Member for Araluen, let us keep going, please.
Ms CARNEY: Mr Chairman, thank you. I ask that members of the government side, clearly – well all of them do not understand …
Mr CHAIRMAN: Member for Araluen …
Ms CARNEY: … but those to my left who especially do not would be doing us all a favour if they kept quiet.
Mr CHAIRMAN: Member for Araluen, your next question, please.
Ms CARNEY: Attorney-General, are you aware that in some jurisdictions there is a discretionary power provided in legislation for a court to prohibit an accused from personally conducting his or her own defence in vulnerable witness cases? If so, did you consider including such a clause in this bill and, if so, why was it rejected?
Dr TOYNE: You are misleading the House by putting that proposition. They are not prohibited from carriage of their own defence; they are prohibited from cross-examining in these cases, on my advice.
Ms CARNEY: Sorry, could you repeat the last bit? I missed the last bit.
Dr TOYNE: I will say it a bit louder for you: they are not prohibited from carriage of their own defence; they are prohibited from cross-examining the witness.
Ms CARNEY: Attorney-General, you are quite wrong. There are jurisdictions that provide for this. In Scotland, for instance, the Vulnerable Witnesses Scotland Bill, passed in October 2003, provides:
- … discretionary power for the court to prohibit the accused from personally conducting his or her own
defence in cases involving vulnerable witnesses.
You have missed that one in the same way that you have missed so much of this legislation. I take it from what you have said, then, that you did not research this and did not consider it and, therefore, something reasonably innovative like this has not been included in the bill.
Mr Henderson interjecting.
Ms CARNEY: You can yell all you like, you moron, but …
Mr CHAIRMAN: Order, order!
Ms CARNEY: Mr Chairman, I do not think I need to ask a question in relation to that any more because your answer speaks volumes. That concludes clause 6, Mr Chairman.
Clause 6 agreed to.
Clause 7:
Ms CARNEY: Minister, I would like to ask you some questions about proposed section 21D. Do you accept, as I said in my reply, that proposed section 21D(2), read in conjunction with section 21A(2A)(a) of the Evidence Act are at odds with one another?
Dr TOYNE: No.
Ms CARNEY: Do you accept, therefore, that it is a desirable outcome and it assists the administration of justice in the Northern Territory to have, on the one hand, part of an act that enables a court to refuse the availability of special measures, protective arrangements such as CCTV and so on, to vulnerable witnesses yet at the same time under proposed section 21D, that children ‘be given the benefit of special measures’?
Dr TOYNE: The short answer is no, I do not accept that. We have said quite clearly that this bill needs to balance the support and protection that we want to give to child victims and witnesses who are appearing in these hearings against the need for discretion to be exercised by both the court and the prosecution to get the best process going in the hearings to get an outcome.
It is quite appropriate, on one hand, to have principles stating what we are trying to achieve as a parliament by providing legislation to the courts as regards the interests of the child but, at the same time, provide within the court, the process of the court and prosecution, the necessary flexibility and discretion on how they adduce evidence and apply it to a particular hearing.
We do not believe there will always be a beneficial outcome if we were mandating pre-recording of evidence. There maybe cases where both a witness and a victim want to give evidence in the conventional way. It might be part of their process of closure that they are seeking to take part in the court hearing. You hear that many times from victims who have been through hearings, as to whether it has actually offered the closure that they were seeking: the sense that at least the community has addressed what happened to them and given them an outcome that will allow them to get on with their lives.
They are the areas that you simply should not be mandating in legislation. They are the areas that, whether you like it or not, courts have to deal with on a day-by-day basis. There have to be judgments made. That is why you have highly-trained people working in our courts; to make these sorts of judgments in individual cases. What legislation should be doing is defining the possibilities. In this case, the possibilities for effectively adducing evidence in a court from, in particular, child witnesses, and the options available to the court and prosecution to do that with a minimum of further harm or traumatisation of these children.
On the one hand, they are enshrined in the principles; on the other hand, they are enshrined in the area that deals with adducing evidence. There is no conflict between those two areas. I do not accept your proposition for a minute that there is.
Ms CARNEY: I am now referring to the proposed new section 21D(1) and (2). In (1) it says:
- It is the intention of the Legislative Assembly that, as children tend to be vulnerable in dealings with
persons in authority (including courts and lawyers), child witnesses be given the benefit of special measures.
What are those special measures?
Dr TOYNE: What is your point? Do you have a question for me?
Ms CARNEY: My point is you have included a clause in legislation. I will read it again:
- It is the intention of the Legislative Assembly that, as children tend to be vulnerable in dealings with
persons in authority (including courts and lawyers), child witnesses be given the benefit of special measures.
Dr TOYNE: I can see the clause. It is in front of me.
Ms CARNEY: What are those special measures?
Dr TOYNE: The bill is full of the special measures.
Ms Carney: Sorry? Speak up.
Dr TOYNE: Read it. The bill is full of special measures.
Ms CARNEY: What are they?
Members interjecting.
Mr CHAIRMAN: Order!
Ms Carney: So is everything. How interesting.
Mr Henderson: Honestly!
Ms CARNEY: Member for Wanguri, I think that you should keep your nose out of it.
Mr CHAIRMAN: Order! Member for Araluen, please stick to the bill.
Ms CARNEY: So that is why there is not a definition because the definition of ‘special measures’ would have been everything in that bill. This is just getting worse.
Mr Henderson: You are getting worse.
Mr CHAIRMAN: Order! Member for Wanguri.
Ms CARNEY: Okay, we will try this. That is subsection 1, that children be given the benefit of everything in the bill.
Mr Henderson: What don’t you like about this?
Mr CHAIRMAN: Order! Member for Wanguri.
Ms CARNEY: I ask the questions; you provide the answers. I will put it like this: (2)(a) says the court ‘must’:
- … take measures to limit, to the greatest extent practicable, the distress or trauma suffered (or likely to be suffered)
by the child when giving evidence;
On the one hand, there is an inconsistency because at the beginning of (2), it says the court has to have ‘regard’ to the following principles and then at (a) it says the court ‘must’ take particular measures.
Is it a principle or is it a direction? Must the court simply have regard to the contents of (a) or is it obliged to take such special measures? What happens if the court, for whatever reason, fails to take the measures referred to in (a)? Is there a sanction? Might it be an appeal point if the court does not take measures to limit to the greatest extent practical the distress and trauma suffered?
Dr TOYNE: Sometimes when you read something in plain English, you take it for what it actually says …
Mr Henderson: Pretty simple to me.
Ms Carney: And what do you think it is, member for Wanguri? Give us your view.
Mr CHAIRMAN: Order! Member for Araluen, the Attorney-General has the floor.
Dr TOYNE: Mr Chairman, there are quite a few pretty strong clues in the legislation that indicate what we are trying to do. The principles …
Ms Carney: I know what you are trying to do.
Mr CHAIRMAN: Order!
Dr TOYNE: You know most reasonable people, except for the member for Araluen would say that principles are guiding …
Ms Carney: Yes, correct.
Dr TOYNE: … constructions, if you like, if I can use another word, that simply establish in broad terms the type of outcomes we want from a justice process within the court.
Ms Carney: With you!
Dr TOYNE: With me, okay, good.
Ms Carney: That is a principle, yes.
Dr TOYNE: Now, who is establishing these principles? It is the intention of the Legislative Assembly.
Ms Carney: Yes, yes.
Dr TOYNE: Okay? So this is the parliament telling the courts that when you are dealing with the interests of young …
Mr Ah Kit: Stay with him, now.
Ms Carney: Good!
Dr TOYNE: … people who have been victimised, or might be feeling traumatised potentially by going through these sort of hearings, that we want the court to apply these special measures that are contained in this bill.
The second point is that we now have the principles spelt out. The principles simply say what the courts must and must not do. There are three ‘must not dos’ such as allow the child to be intimidated.
I have to presume that you would not have any inherent problem with protecting children from intimidation, that you would not have any inherent problem with seeing children treated with dignity, respect and compassion, that you would not have any inherent problem with trying to minimise the distress and trauma suffered by a child during the process of giving evidence. Those are principles. They are things that you cannot, by definition, enforce in the detail of how a court hearing is being conducted.
As you quite rightly pointed out in the second reading debate, how do you define to the point of enforcement whether intimidation has occurred or whether dignity has been compromised or whether respect has been or has not been shown to the child? That is what judges do. Judges have to evaluate the trial going on in their court and they have to make the decision as to whether any of those principles are being compromised.
That is what ‘must’ says; a judge presiding over a court must monitor those things, must make a judgment as a judge as to whether they feel that one or another of those principles have been compromised. It is not enforceable by its definition. It is something that requires the court to make a judgment.
There are many principles of law to which judges have to apply their discretion and expertise. The principles are the parliament telling the court the manner in which we want the interests of a child dealt. The judge will apply those principles to the detail of what is going on in a hearing. We cannot either define or enforce those simply because they are not definable down to the level of enforcement.
Ms CARNEY: I am very grateful for your answer. I am glad I asked the question …
Dr Toyne: I am pleased about that.
Ms CARNEY: … because the hole you have just dug is a big one. What you have said is that despite inclusion of the word ‘must’, the court ‘must’ do this, the child ‘must’ be treated with dignity, respect and compassion, and the child ‘must not’ be intimidated when giving evidence, you have just said that it cannot be enforced; it is not enforceable.
This is the most absurd stuff I have ever seen. Here are the principles. It is such a mess. I have asked him to take it back to the drawing board but because he is arrogant, he won’t, but, by God, he should.
Members interjecting.
Mr CHAIRMAN: Order! Enough cross-Chamber chatter.
Ms CARNEY: There is the inconsistency there. I am astounded you do not see it. I actually do not believe that you do not see it. I think you see it and you are thinking: ‘Oh dear’, but you have to march on regardless.
There is no sanction, despite saying in section 21D(2)(b) that the child must be treated with dignity, respect and compassion. According to you, it does not matter if they are not because it is not enforceable; it is just a principle. Why bother including it? A child must not be intimidated, you say no sanction, cannot be enforceable, so I do not know why it is there. It is very Labor to meddle with things. As I said, there are good intentions underlying this bill, but good intentions do not make for good law. Your answer is just so fascinating …
Mr Henderson: Who is going to sit in judgment apart from the judge? Are you going to sit in the courtroom? Unbelievable!
Ms CARNEY: What you know about the legal process, member for Wanguri, you could write on the back of a match box!
Mr CHAIRMAN: Order, order! Member for Araluen, back to the section.
Ms CARNEY: The member for Wanguri, Mr Chairman, is being very provocative.
Mr CHAIRMAN: Yes. I have asked for order from the member for Wanguri. Keep to the clause and to the issues.
Ms CARNEY: All right. I did have a number of other questions in relation to these sections. Basically, I raised them in my reply, but your answer is so very extraordinary I do not think I need to bother with the questions I had. Just bear with me. I will press this one.
Attorney-General, can you advise whether independent counsel has considered the bill? If so, were you provided with written advice on it? If so, would you table that advice?
Dr TOYNE: We seek advice from independent counsel when our own lawyers in the policy section of the Department of Justice and Parliamentary Counsel indicate that there is a need to do so, if there is a technical issue that comes up and we feel advice would be useful, but that did not occur in this case. No, we have not sought independent advice on the provisions in this bill. We believe it is well thought out and is very good legislation.
Ms Carney: Oh, you do?
Dr TOYNE: So, if you feel differently, I am very sorry.
Ms CARNEY: I will shortly be moving to another clause, but getting back briefly to subsection 2 and your answer, which I found astounding, despite the use of the word ‘must’ do this, ‘must’ do that and so on, that it is all not enforceable so therefore it is sort of voluntary …
Dr TOYNE: No, no. Do not verbal me.
Ms CARNEY: Well, okay, you explain it for yourself then.
Mr CHAIRMAN: Order! Stick to the clause, please.
Ms CARNEY: Well, that is what you said.
Dr TOYNE: No, no. I did not say that.
Mr CHAIRMAN: Order! Let us stick to the clause, please.
Ms CARNEY: Why is it, then, that despite the word ‘must’ occurring in subsections (a), (b) and (c) the word ‘should’ surfaces in subsection (d), and that is:
- … proceedings in which a child is a witness should be resolved as quickly as possible.
Why was it ‘must’ in relation to everything else, and ‘should’ in relation to the speed with which the proceedings are undertaken?
Dr TOYNE: Oh, dear.
Ms CARNEY: Just a sensible answer would be good, thanks.
Mr CHAIRMAN: Order!
Dr TOYNE: Just to go back, I have been trying to think what your problem is …
Ms Carney: Good law.
Dr TOYNE: … and some of them I probably could not do anything about. I am taking your argument one step further: our entire court system, its purpose and the principle on which it stands, is to deliver justice. Now, are you going to extend your argument to say if you establish a principle like we establish our courts to deliver justice to the community, what happens when someone feels that justice has not been delivered? Do you then lock up the judge?
Courts operate on principles in many areas, and it is a matter, within the court process itself, of the judge being the ultimate arbiter of the appropriateness of what goes on in a hearing, applying the principles that we provide, as the will of the Territory community, through its parliament. The judge will place constraints on what is said and done in the court hearing. If someone chooses to contravene those beyond what the judge has said, there are contempt provisions that can be applied. So there are many checks and balances for the way in which these principles would be applied in a hearing.
The point you were making about the use of ‘should’ is a matter of emphasis. Speedy justice is desirable, particularly in cases that this bill contemplates. However, there are other considerations in the speed and timing of these hearings. You would not want to see a miscarriage of justice because a trial has been pushed through too quickly, evidence has not been finalised, and perhaps an offender might go free because of a flawed process.
In drafting this, we felt that it was appropriate in this case to downgrade the emphasis, particularly as we have provisions in the bill which do give the court the ability to extend the time for the beginning of a trial, at its discretion, when there is some complexity in the evidence. For example, with a case that might involve multiple offences or some real difficulty in the forensic evidence that had to be assembled. We felt that ‘should’ was about the level of urgency or priority that should be included in the principles we are putting to the court.
Mr DUNHAM: I am interested in this matter, Attorney-General. From what I understand, there are an enormous number of principles used to dispense justice within the court system and, from time to time, parliament alerts the court to principles that we believe to be the will of the people, if I understand you. Can I ask you, then, in the absence of this parliament telling the courts that a child must be treated with dignity, respect and compassion, whether those elements were absent from the justice system?
Dr TOYNE: Sorry, I was taking advice on the first part of what you are saying.
Mr DUNHAM: We are now requiring courts to treat children with dignity, respect and compassion. Can I ask you if, prior to this legislation, those elements were absent from the justice process?
Dr TOYNE: No, there are principles of the interests of children already in existence, for example, in the federal Family Law Act. What this legislation does is spell out, specifically in this area of the operation of our own courts, the need for those principles to be applied.
Not all areas of legislation have to spell out every principle that might potentially be applied to a court hearing. What we have said by including these principles in the bill is that we want to draw the attention of the courts to the fact that in the community, there is a high level of concern that these witnesses are given particular treatment.
When I introduced this bill with the second reading speech, I indicated a case in the Alice Springs Supreme Court where a child witness was cross-examined for two days by a defence lawyer in a very aggressive style. That was part of the history that triggered the provisions in the bill. Under these provisions and the provision regarding harassment and other features of cross-examination, with this bill in place, a judge will have every empowerment to stop that process.
Mr DUNHAM: As I understand you, previously the courts were unable to treat children with dignity, respect and compassion and, now that you have pointed this out to them, the judges are able to rely on this legislation to, in fact, treat children with dignity, respect and compassion whereas, hitherto, they could not? Is that what you are telling us?
Dr TOYNE: That is not true. The courts are there to provide justice. There are many judgments made by judges about the appropriateness of what goes on in court hearings. What is new about this is that the Legislative Assembly is saying specifically in the case of child witnesses that the court must particularly pay attention in principle to these aspects of the treatment of a child who is going through court hearings. That is new. However, as a general principle of decency and dispensation of justice, judges will often rule out over-aggressive behaviour in a court, and have for many years.
Mr DUNHAM: You would hope so. Do you believe it is important then for this parliament to mandate certain principles to judges so their considerations and decisions are reflective of community attitude?
Mr KIELY: A point of order, Mr Chairman. This line of questioning is bordering on vexatious. We are here dealing with …
Mr CHAIRMAN: There is no point of order. .
Dr TOYNE: Thank you, Mr Chairman. I have already explained that principles by their nature cannot be enforced. By their nature, they are guidelines. They are a broad expectation of the type of behaviour that the judge will be asked to dictate to a court. Ultimately, it gets down to a matter of judgment as to whether a principle has been contravened or not by their nature. One person’s intimidation may not be another person’s; or one person’s show of respect may not be another person’s. It ultimately becomes the professional judgment of the judiciary that will give these principles life in an individual court case.
Mr DUNHAM: The example that you used of a child being interrogated for two days, with this legislation in place would not have happened, whereas before, the judge could not rely on statutes of this type?
Dr TOYNE: The reason it would not happen following the passage of this bill is because there are other sections in the bill before us that do deal with the nature of cross-examination, which specifically say that you cannot harass or intimidate a child witness.
Mr CHAIRMAN: Are we still dealing with clause 7?
Ms CARNEY: I think so, Mr Chairman. Just one moment. Oh, yes. Has the Criminal Lawyers Association of the Northern Territory been consulted about this bill specifically? I know what happened and you had better be honest.
Dr TOYNE: My advice is that this has been widely circulated since its introduction in the last sittings, particularly to the members of the DPP, many of whom belong to that organisation.
Ms CARNEY: You are aware, though, of the organisation, the Criminal Lawyers Association of the Northern Territory?
Dr TOYNE: Yes.
Ms CARNEY: Was it sent to them with your second reading speech?
Dr TOYNE: My advice is that they are aware of it.
Ms CARNEY: They were aware of it, but it was not specifically provided to them? I suggest that had that organisation been made aware of the details of this bill, they would have contacted you about it. I also note with great interest that you call yourself the great consulters of the Northern Territory and yet are very selective about those you consult.
Still on clause 7, the same section. Attorney-General, notwithstanding the non-enforceability of the guiding principles for which there is no sanction, and notwithstanding the use of the word ‘must’ in section 21D(2), is it the case that you would consider extending those sections to other legislation so that it would include other witnesses or victims, for example, women victims of domestic violence or women who have been the victims of other sexual assaults? If not, why not?
Dr TOYNE: We are reviewing the Domestic Violence Act at the moment. There is no reason why we cannot look at this sort of provision in other legislation. It sounds like you like it enough to see it in other acts.
Ms CARNEY: Don’t be cheeky. It is peculiar legislation, this section. My point is that you clearly have the view that children should be treated with dignity, respect and compassion, that they are not to be intimidated and that the court should take various measures to limit that.
We are at one, but I say that it is drafted in such a dreadful manner based on, presumably, not very good instructions, and what it leads to is a mess because there are the principles and yet, by use of the word ‘must’, it is a direction that creates an obligation. You ‘must’ do something as opposed to you ‘should’ do something. So the words are quite different.
Putting all that to one side, is it the case that women victims of sexual assaults are not treated with dignity, respect and compassion in cases in which they are involved?
Dr TOYNE: On that logic, every time we introduce legislation, you would have to then re-review every other item of legislation to make sure that any new principle is transported in. In the drafting of this section, it is very much in accord with the form of similar provisions around the country.
Ms Carney: No, it isn’t.
Dr TOYNE: If you are worried about it, go on a whistle-stop tour. There are seven Attorneys-General around the country. Go and see them and tell them how dreadful you think this structuring of the principles in this legislation is and see how much support you have. This mirrors similar provisions right around the country.
Ms CARNEY: You are just being selective because when it gets a bit sticky, you say: ‘Oh, well, that is everywhere else’ and I do not think you know what the other legislation is, anyway but then, earlier on in relation to another part when I talked about Western Australia, your friends over there coming up with, quite rightly in my view, a $100 000 penalty or imprisonment for 12 months or both for the improper use of a video from a sexual assault, you say: ‘No, we do not need to do that in the Territory’. Again, your arguments are not consistent. They are not satisfying and you are making an ass of the law by coming up with stuff like that.
To the extent that I understand your answer, I will plough on. The fact that I have raised it and you say: ‘We might think about putting it in other legislation’ illustrates, doesn’t it, that this bill has not been thoroughly thought through? Do you agree with that?
Mr Henderson: No.
Ms Lawrie: No.
Mr Kiely: No.
Ms CARNEY: Attorney-General, I am sure you can speak for yourself. Do you agree with that?
Dr TOYNE: Sorry?
Ms CARNEY: Do you agree? Did you hear my question?
Mr Henderson: Why would he agree that the bill has not been thoroughly thought through?
Ms CARNEY: Well, Mr Chairman.
Mr CHAIRMAN: Order! Attorney-General, either answer the question or do not answer the question. He has the choice.
Ms CARNEY: For Hansard purposes, I think he should.
Mr CHAIRMAN: No, the Attorney-General does not have to answer a question.
Ms CARNEY: All right, I will take that as – so he is clearly not answering that question, even though his little friends want him to. I have finished with that clause, Mr Chairman.
Clause 7 agreed to.
Clauses 8 to 10, by leave, taken together and agreed to.
Clause 11:
Ms CARNEY: I will not ask the questions I had in relation to clause 11.
Mr CHAIRMAN: Member for Drysdale, do you have a question?
Mr DUNHAM: I have two questions, Attorney-General. I wonder if you could tell me whether this clause also deals with perpetrators who are under 18?
Dr TOYNE: It is specified as any person who is charged with an indictable offence. That takes in every perpetrator or alleged perpetrator; it does not put a limit on the age.
Mr DUNHAM: Yes. I am talking about the evidence of a child, and I am asking you if that includes the evidence of a child who is the perpetrator?
Dr TOYNE: I am advised, no, it does not because the perpetrators do not necessarily have to give evidence at all.
Mr DUNHAM: So, in the unlikely event that you have a silent perpetrator, it does not apply. In the event that you have a perpetrator who has to give evidence, and who is under the age of 18, does this clause apply?
Dr TOYNE: Yes, I am advised that this is applicable to the committal stage of a matter. It does not apply to the full trial, but the perpetrator would not have these provisions available in a committal.
Mr DUNHAM: I suggest that you might need to re-word your bill then, because the way I read it, a sex offender who is under age 18 has the same principles in relation to a child witness as the victim. There are two questions. First, can you tell me how many sex offenders have been charged in the Northern Territory under the age of 18 in the last year? Can you tell me whether, in a future year, about that number of people will be able to use the advantages bestowed under this act as child witnesses?
Dr TOYNE: Why would I have that information here?
Mr DUNHAM: You are drafting a bill. I assume you know what its impact is.
Dr TOYNE: I do not have that information. I will take it on notice.
Mr DUNHAM: So, firmly, for the advice of lawyers, the courts and others, a perpetrator of a sexual offence who is under 18 is incapable of using the child witness provisions of this act? Do I understand you correctly?
Dr TOYNE: During the committal hearing.
Mr DUNHAM: Right. My second question goes to the issue of vulnerability. In relation to earlier legislation through this House, there was some discussion about the vulnerability of children, whether they be 18 or 16, and there was some strong argument put that children were vulnerable up to age 18 in relation to sexual matters. It was the case, put by your government, that children over age 16 had certain mental capabilities that rendered them different. I wonder why then in this act you have used 18 as the definition for a child.
Dr TOYNE: The use of 18 years as the threshold for coverage of these provisions is because of the definitions under the child protection provisions within the Territory. We wanted to align these supportive arrangements in the courts with the child protection provisions.
Mr DUNHAM: I applaud that move, Attorney-General. I wonder whether you, like me, believe there is an element of vulnerability about young people under age 18. You do not? Well, I do. He signified ‘no’ by way of head shaking.
Dr TOYNE: No, I was just talking to my advisors, so do not verbal me.
There are many age thresholds in our legislation: when you can vote, when you can drive a car, the age of consent, and the age at which we want to provide protection. The child pornography legislation we will introduce in these sittings is set at 18.
We felt that the most appropriate age to establish these support arrangements would be those used in the child protection provisions. That is why we have gone to that. It is not based on a judgment about the relative vulnerability of a 16-year-old or 18-year-old. We are simply aligning it to the legislative environment in which it will exist.
Mr DUNHAM: So it is a legislative convenience rather than any presumption on your part about the vulnerability of people under the age of 18, is that correct?
Dr TOYNE: I believe I have made the point as to how we reached that decision. There is not much more to be said about it.
Clause 11 agreed to.
Clauses 12 to 16, by leave, taken together and agreed to.
Clause 17:
Ms CARNEY: Attorney-General, you would be aware that clause 17 deals with the time limits prescribed for prosecutions in the bill. Various time limits are imposed. What sort of representations and by whom have been made to you expressing concerns about these time limits?
Dr TOYNE: I can advise that I have had no representations directly to me. However, the development of this legislation involved a discourse with the Director of Public Prosecutions. As part of dealing with any concern about the impact of this provision on the outcomes of court hearings we, jointly with the DPP, examined the outcomes of the Victorian legislation, which has been in force now for several years. Upon seeing the outcomes of the Victorian experience, the DPP was comfortable with the provisions.
Ms CARNEY: I am sorry. Please do not take this the wrong way. You faded a bit so I may not have heard you correctly. Is it the case that the DPP has advised you or your office that they are happy with the time limits? Yes or no?
Dr TOYNE: I have already stated there was no direct - it would be inappropriate, in fact, for the Director of Public Prosecutions because of his independent status to be directly negotiating with me on legislation that would be going into the court system. All the discourse occurred between the policy section of Department of Justice and the DPP and his staff, and these matters were worked through between the two and to their satisfaction.
Ms CARNEY: I suggest that there remains in the minds of many lawyers in the Territory, and it is not for me to name them, concerns about the time limits. Clearly, you do not know about them but others do. It is unfortunate that you as Attorney-General do not know that there is a widely held view that the time limits are unreasonable and unrealistic. Again, I am astounded that as Attorney-General you do not know that.
Attorney-General, what do you say in relation to an example I gave this morning where, for instance, forensic evidence might not be available within the time limit that you have prescribed? How do you envisage it working so the DPP cannot be in breach of the act? What happens if forensic evidence is not available or has not become available through forensic experts within the three month period?
Dr TOYNE: The provision in the bill is that the court has been given the ability to extend it. It merely has to consider the reasons put to it. The provisions are in 3A(4) and (5) dealing with extensions say the court can not only grant an extension not exceeding three months of the period, but can also grant more than one extension as indicated in (4).
That is the very reason we included the discretion, to provide for the variety of circumstances in which cases are prepared to go to court. Similar provisions exist in the Victorian arrangements. The combination of a strong signal or expectation of three months to the beginning of the trial and the flexibility provided to the court to vary that if circumstances dictate are resulting in some very good outcomes in Victoria. They are finding that not only can people within the justice system live with those provisions, but they are getting a much better clearance of these types of cases. You will appreciate that any long delay, and some of the delays are extraordinarily long, in these types of cases are very much to the detriment of both the victim and the justice system.
Ms CARNEY: You have referred to the extensions being available in the proposed new section. Did I hear you correctly? You did refer to the extensions, the ability to seek an extension?
Dr TOYNE: There is more than one extension available to the court.
Ms CARNEY: Okay, yes. Why, then, in your media releases of 5 April – again, Mr Chairman, the member for Wanguri can sigh and carry on, but some of us are taking this debate very seriously unlike he is. Could you direct him to mind his manners because I might do something unparliamentary?
Members interjecting.
Mr CHAIRMAN: Order!
Ms CARNEY: Why did you include in your media releases of 5 and 18 August, the following:
- Time limits would also be introduced for the prosecution of sexual offences.?
Why were you not honest and say: ‘time limits will be included, but there will also be the ability to seek extensions.’?
Dr TOYNE: What are we going to do with media releases on that logic? Do we issue the entire bill as a media release? I have seen a few of your media releases, and I tell you what: there are some omissions in those as well.
The new factor in this legislation is that we are trying to limit the time used in preparation for these trials. That is the new element in this legislation. The courts have always had discretion to extend time to prepare for hearings, so (4) and (5) simply confirm in a structured way what has gone on in the operation of the courts for many years.
If you want to now mandate what we put in our media releases, I would love yours to contain all the facts as well. It would be very interesting; a whole new look for yours.
Ms CARNEY: That was a pathetic response.
Mr CHAIRMAN: Member for Araluen!
Ms CARNEY: I take it that you do not accept that you have spun and spun this bill. There is evidence of it everywhere, even here where you want media organisations in the Northern Territory to pick up this release and say: ‘That looks great, doesn’t it?’ You want people like me to have briefings with your office and walk out upbeat and thinking this is great. You want people like Sue Lowry from Victims of Crime Northern Territory – I assume you gave her the same sort of briefing as I was given - she also would have walked out of the door with a bit of a spring in her step.
However, after the bill was introduced it became abundantly clear that it had spun out of control and that you were less than honest in the propaganda that you disseminated prior to its introduction. Why weren’t you honest there and why weren’t you honest in your second reading speech? Do you have a problem with honesty, Attorney-General?
Mr HENDERSON: A point of order, Mr Chairman!
Mr CHAIRMAN: Yes. Member for Araluen, I think that needs withdrawing, please.
Ms CARNEY: I will, Mr Chairman, thank you.
Mr CHAIRMAN: Thank you, that is all.
Ms CARNEY: I have another question.
Mr CHAIRMAN: Give a chance to the Attorney-General, please, to answer …
Ms CARNEY: To answer the question I just withdrew?
Mr CHAIRMAN: The Attorney-General has the floor.
Dr TOYNE: I would like to say something. Mr Chairman, I am trying to ignore the offensiveness coming from over there, but I believe that if you asked out in the community, I do not think you would find too many people who are saying that I have misled anyone on this or any other bill.
We should get back to the legislation before us. I would like to hear some points on the time limit on prosecutions, proposed section 3A.
Ms CARNEY: Probably happily for you, because you are pretty good at ducking and weaving, I have a last question in relation to this clause and others. That is: will you delay the passing of this bill until next week to give your advisors the opportunity to consider the information I have provided, to consult with relevant stakeholders, albeit it in a rushed way, because that has not happened, and I am talking about victims of crime who have not been told all of the details, including the Criminal Lawyers Association of the Northern Territory? There are plenty of others, they are just a few. Will you consider delaying this until next week?
Dr TOYNE: Mr Chairman, the member has had the benefit of some three hours of debate, maybe even longer because we started before 11 o’clock this morning, to persuade me that somewhere within this bill there is a fatal flaw or a flaw of any type. I have simply not been persuaded that such flaws exist.
In fact, I will not be delaying the passage of this bill even for 10 milliseconds. We are getting this out and we going to start using it. History will judge us all. If the provisions are as terrible as you say they are, we will have an amazing problem to deal with, politically and for me as a legislator along with my personal reputation, in amending legislation. I can certainly say this: after introducing 87 items of legislation through the parliament, this will be number 88, not many have come back to this House for revision. In fact, I could probably count them on less than one hand.
I am confident, as always, that we have expert people within the agency doing the work of developing this legislation. My officers, as always, spent many hours working through all the detail, testing the detail of this legislation. I am confident that this is a good bill, has good provisions and will do an enormous amount of benefit for the people whom we set out to help when we started developing this legislation.
When we come in here and make our maiden speeches, they often come from the heart. One of the issues that I freely acknowledge you raised in here three years ago is very much at the centre of this bill today. I cannot believe you want to hold up the changes that this will bring to court hearings, and I am simply not prepared to hold them up on the arguments you have proposed today. I am not convinced by your arguments.
Clause 17 agreed to.
Clause 18 agreed to.
Bill reported; report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a third time.
Mr BURKE (Brennan): Madam Speaker, I listened with interest to the debate this afternoon which became reasonably inflamed at times because people have different views as to the points that were being made in relation to this legislation.
Whilst we were in the committee stages of the bill, a media release issued by the Attorney-General was drawn to my attention. I assume he takes responsibility for the release. The contact is Richard O’Leary.
I find the release particularly disturbing, and I give the Attorney-General the opportunity to clarify his comments in the third reading. In clarification, I hope that the Attorney-General will disavow himself of the release and have the gumption to apologise for the comments contained within it.
I imagine that, notwithstanding the fact that the Attorney-General and the government might take issue with some of the points the shadow Attorney-General raised in relation to this legislation, they may not agree with the points that she has made, they may be very confident that the legislation fulfills the objectives that they have set themselves, it is particularly disturbing that the Attorney-General would issue a media release whilst this bill was still in its passage stages. The bill had not even been passed. The purpose of this House is to persuade, in argument, as to the merit or otherwise of the legislation. The Attorney-General supposedly prides himself in being one who is considerate and interested in the information that is being put to him. That is one of the stands that he takes publicly and prides himself on his integrity in that regard.
No one in this House could suggest for a moment that the shadow Attorney-General does not have a deep, long and abiding interest in the welfare of vulnerable children. No one could suggest that. I ask the Attorney-General in that context whether he would bear in mind the context of Standing Order 62 which says, in part:
- No member … shall attribute directly or by innuendo to another member unbecoming conduct or motives …
Whilst this bill was in its passage, before it even passed, whilst the shadow Attorney-General was properly exercising her responsibility to question aspects of the bill, he would issue a media release that says, first:
- Less than a week after Territorians were appalled by revelations about child pornography in the
community, the shadow Attorney-General has opposed …
This legislation. He went on to point out quite specifically:
- This is what she opposes:
preventing young victims having to live through the ordeal again and again during the trial process;
protecting other vulnerable witnesses such as adults with an intellectual disability;
providing for children and other vulnerable witnesses to give evidence by pre-recorded statements
in committal proceedings;
introducing time limits … for the prosecution on sexual offences …
Mr HENDERSON: A point of order, Madam Speaker!
Mr BURKE: I am in the third reading.
Mr HENDERSON: The third reading debate is supposed to be confined, very deliberately, to the content of the bill. What we have here is …
Mr Dunham: You are an idiot! What do you think this is?
Mr KIELY: A point of order, Madam Speaker! I ask the member for Drysdale to withdraw.
Madam SPEAKER: Order!
Mr HENDERSON: What we have here is the member for Brennan debating the content of a media release …
Mr Dunham: Which describes, purportedly, the content of the bill.
Mr HENDERSON: Madam Speaker, I urge you to get him to get back to the point before us, which is the bill.
Madam SPEAKER: The subject matter of the media release is the bill.
Mr BURKE: I say with the utmost seriousness, and I certainly am not playing politics. I am appealing to the Attorney-General in the context of whether he was aware of what these people were doing upstairs when they issued the media release, and I am appealing to his integrity.
I will go on. It says the shadow Attorney-General opposes:
- … introducing time limits … for the prosecution of sexual offences;
abolishing oral examination of children at committal proceedings for sexual offences.
‘Ms Carney’s opposition of these measures to protect children is not only misguided but irresponsible,’
Dr Toyne said.
Directly and by suggestion, not innuendo, the Attorney-General is suggesting that the shadow Attorney-General protects paedophiles directly in that media release. To play politics with the shadow Attorney-General, you are suggesting in the opening comments, at a time when Australians are alarmed about paedophilia, that the shadow Attorney-General, in her debate in this House, is moving to protect paedophiles in Australia by opposing the measures of this legislation. That is disgraceful, Attorney-General, absolutely disgraceful!
You can say that you are disappointed that she does not support the legislation, that she has problems with it and you do not agree with the problems that she has with it. However, you know and everyone knows that nothing that is said in this House can stop the government’s determination from passing this bill today. Therefore, there is no possibility of any suggestion that anything the shadow Attorney-General might say could possibly stop the implementation of this bill at the time the government wants it unless the government itself decides to hold this bill up.
What you have done is suggested that the shadow Attorney-General favours paedophiles, the actions of sexual predators against children and, therefore, she opposes this bill and the measures in this bill in order to act against those sorts of actions. That is plain, straight-out wrong.
I ask the Attorney-General to have the gumption to stand up here and say that it was not his intention to make that suggestion in the media release. This is damning to a person. It is not the sort of thing with which you play politics.
The aim of the Attorney-General is clearly to get coverage in the paper tomorrow that says that the shadow Attorney-General has opposed this legislation and aims to ensure that children are not safeguarded. That is just wrong! It is just wrong and it makes a mockery of this parliament, the debate in this House and of this particular individual who anyone, surely, will accept, whether you like the way she argues in this House or not, whether you agree with the points she makes or not, that she has a deep and strong interest in the welfare of children. To suggest that she does not in a media release and to try to get a headline to achieve that is an absolute disgrace and I ask the Attorney-General to apologise.
Mr DUNHAM (Drysdale): Madam Speaker, I too was offended on two counts. The first is that the House is yet to make its decision. Okay, you are the government and you have the numbers. It is one issue to talk about assuming that things will go through, they will be unscathed and they won’t be argued. This House is a parliament. It is a place where we talk, it is a place of debate and we should debate loudly. Often we hear the rejoinder from the other side, ‘I am going to write to your electorate, I am going to put out a media release’ or whatever. On nearly all matters we debate, that is probably reasonable politics. This I think to be defamatory and actionable. It not only presumes that parliament was going to pass this by virtue of the numbers, but it presumed it was so enlightened, such perfect legislation that it was incapable of being debated unless someone had nefarious motives.
The first time I met the member for Araluen, within the first two sentences she used words that we cannot use in this parliament, and it was about child abuse. She is a vigorous advocate on matters relating to the protection of children. I know it, because I was the previous minister for the Child Welfare Act. I know that she put in an enormous amount of work, of her own time, into advising me of some of the short comings of that act. I know her bona fides in this area as someone who has stood in the court and argued cases. None of us in this room have done that. So for such a proficient practitioner to come to this place and give us the benefit of her enormous, vast wisdom and experience, it should have been taken by the Attorney-General as something that was constructive criticism.
It should have been taken from him as something from a practitioner who knew the pitfalls of presenting matters like this in court. While she was able to say a good prosecutor might think this or a good defence lawyer might think this, I do not think she was couching it in terms of leaving this place and being able to go out there and use these loop holes to persecute children because I know that not to be the case.
In the first place, I am mightily offended at the arrogance, the sheer arrogance, of assuming at lunchtime that we had perfect legislation that would go through unamended and would be ticked off during the day because there are sufficient numbers on that side.
Mr Kiely: There was no amendment offered.
Mr DUNHAM: You be quiet!
Mr Kiely: There was no amendment offered.
Madam SPEAKER: Member for Sanderson, order.
Mr DUNHAM: While I am on my feet, I wonder if you could dress appropriately.
Madam SPEAKER: Order!
Mr DUNHAM: We have all put on weight in here, but if you can’t do that button up, go and get a bigger shirt.
Madam SPEAKER: Member for Drysdale, withdraw those personal remarks.
Mr DUNHAM: Okay, leave it unbuttoned.
Madam SPEAKER: Just withdraw!
Ms Lawrie: You are a disgrace.
Mr DUNHAM: I may well be a disgrace, but I am very upset about this matter.
Madam SPEAKER: Member for Drysdale, I did ask you to withdraw.
Mr DUNHAM: I withdraw. I withdraw. The second matter is not just the arrogant assumption about the processes of this parliament. The other matter is the savage attack on the integrity of my colleague on a matter that is passionately and transparently held by her. I suggest that this media release is something that the Attorney-General should withdraw during this third reading.
There are a few matters over which we play politics. One of them is not child abuse. One of them is not child abuse. It would be unthinkable to believe that anyone in this House opposed any measure that would afford protection to our children. It does not fly from there that everything the Attorney-General introduces in this House is so perfect that it is beyond any debate or constructive criticism. Were that the case, the Attorney-General would have been able to answer several questions that he could not answer without seeking sustained and prolonged advice from his advisors.
It is evident to everyone in this House that some of the questions put were very thoughtful, insightful questions. Indeed, on the answer he gave to my question, I believe him to be wrong. Nonetheless, he has bravely put on the Parliamentary Record what he thinks this act will achieve and he may well be right. I don’t think he is. I am not a lawyer. Let us see whether the act is as unflawed as he thinks.
I suggest in the interest of not starting a range war on matters relating to child abuse, paedophilia and the personal proclivities of members of this House regarding such matters, that the Attorney-General do the right thing and withdraw this media release immediately.
Mr HENDERSON (Leader of Government Business): Madam Speaker, if there was one item of legislation that should have had the total support of all 25 members of the House, it would have been this bill. None of us would deny that we have to improve protection of children giving evidence in our courts in order to get to the truth and if guilt is found, the appropriate penalty be applied.
We have a process and my colleague the Attorney-General, from day one, has offered a consultative approach to dealing with legislation. This legislation was introduced during the last sittings. My understanding is that the shadow Attorney-General was given a full and detailed briefing and left that briefing extremely happy. She has subsequently had time to look at the bill in detail.
In a spirit of cooperation to get this legislation right in a non-controversial way, I would have thought that there would have been a phone call from the shadow Attorney-General to the Attorney-General’s office saying: ‘I have very real concerns with this. We need to discuss it. I propose the legislation needs to be amended or scrapped altogether and we start again’. No such calls were made, let alone received. The first we knew that this legislation was so hopeless and devoid of any capacity of lifting the bar to protect children as vulnerable witnesses in the legal system was today.
We have then gone through a three or four hour process. I know the member for Araluen is passionate about the issue, but the way debate has ensued today has been vicious and venomous and I would almost say contemptuous of the process. On such a serious issue, you would have thought that had she approached my colleague the Attorney-General with very considered problems with this, we obviously would have had a look at it. I know the Attorney-General and have known him for many years. He is passionate about this issue and he would have taken those concerns on board and considered them thoroughly.
I do not know why the wheels have fallen off today on a bill that should have been treated with seriousness. Some of the questioning today was venomous and fatuous. I am not a lawyer either, but I can read and understand plain English, and some of today’s questioning was fatuous.
I do not know what media release the member for Araluen issued at lunchtime, but she was all over the radio airwaves saying that this was hopeless legislation, that it was a chook’s breakfast and needed to be pulled. That is pretty offensive as well, not only to my colleague the Attorney-General, it is offensive to the legal officers in the Department of Justice - the policy people, the legal people, the drafting people in Parliamentary Counsel - who have worked for a long time to pull this legislation together.
For the member for Araluen to come in here and display the petulance that she has today denies belief. This should have gone through as great legislation that will protect our kids through the legal system. I do not know what has happened, apart from pure politics, between the day that the member for Araluen received the briefing and her performance today, but people who live in glass houses should not throw stones. The member for Araluen needs to look at her performance and behaviour in her conduct of this debate because I can guarantee that my colleague the Attorney-General, had issues been raised with him in the intervening time, would have taken them and considered them seriously and he would have come into the House today with a position on it.
If the issues were serious, where are the amendments? We have not seen one amendment on the floor of this parliament. Nothing circulated. If she wanted to make this bill better, amendments should have been drafted and circulated.
Madam Speaker, I stand in total support of my colleague on this. This is good legislation and I commend it to the House.
Ms CARNEY (Araluen): Thank you, Madam Speaker. How long do I have?
Madam SPEAKER: Five minutes.
Ms CARNEY: There are three very quick things I would like to deal with. One is that in relation to the bill itself, as I have said, it has good intentions. We are at one insofar as the intentions of this bill are concerned. However, good intentions do not make for good law.
It is very obvious that various provisions are not properly thought through. There is no need for me to rehash all of the arguments, but I do believe I have put some detailed and very thoughtful analysis into this bill.
It is very disappointing that the Attorney-General and his colleagues, some of whom do not know anything about it anyway, have the gumption to say: ‘No, Carney, you do not know what you are talking about’. Well, I do, and I will stand by every single thing I have said in this parliament today. When others are out there experiencing difficulties with your bill, the likes of which you clearly cannot imagine, I will remind them that it was your bill, Attorney-General.
In relation to the comments about why did she not come and tell us? You blokes have changed. Listen to this. You blokes have changed, and accordingly, I am changing with you. You used to listen. You used to be a listener.
Ms Martin: Even Terry could get an amendment to the nuclear waste bill!
Madam SPEAKER: Order!
Ms CARNEY: It has changed. If I thought that you would listen, would I have come to you? Absolutely. But you have all become such an arrogant, pathetic, petty bunch, why would I bother? You conduct yourselves in such an unprincipled way, and I will come to the media release shortly, you do conduct yourselves …
Members interjecting.
Ms CARNEY: You, the whole lot of you on the 5th floor conduct yourselves in an appalling way!
Madam SPEAKER: Member for Araluen, get back to the bill please.
Ms CARNEY: Madam Speaker, when bright lights like the member for Wanguri stand up and say: ‘She should have come to us’, I say if I thought I had a shot, I would have. But I do not have a shot, so what I have to do is give it my very best shot on the floor of the parliament, the floor of the parliament, incidentally, that is so important to this rabble on the other side.
They had a policy before the last election vowing that they are not going to abuse parliament, they understand what parliamentary democracy is all about and they love it. Well, they get very antsy indeed, do they not, Madam Speaker, when we exercise, as we do as members of parliament, our right to come in here and debate legislation? I thought that was what this was all about. Are we not parliamentarians in a parliament talking about legislation? Tell me if there is something I have missed. Tell me if we are not to have debate about legislation, tell me if detailed, thorough analysis of legislation is something that the NT Branch of the Australian Labor Party does not want in this parliament because if you want to be up-front about that, well, we will have to consider our position. If the day has come where you people do not want us to exercise our right in this parliament, then it is a very sad day for the Northern Territory, indeed, a very sad day.
In relation to the media release, and I will come to the one more offensive part than others in a minute, it is typical of the releases from the Attorney-General’s office and typifies the way this man has changed since coming to office. I used to have a lot of respect for the Attorney-General. No longer. His conduct and that of others on the 5th floor, some of which I will not detail publicly, has been nothing short of disgraceful. In any event, the media release says that we supported the bill. I said in my media release: ‘Often the devil is in the detail’. When we got the detail, did we find a devil? Absolutely, we did! We found that the spin, the propaganda you threw out to Northern Territorians did not resemble what was in the bill.
What do you think I am going to do when I see that? Do you think I am just going to stand here and put up with it? I do not think so. I said at the beginning that my life was too short for me to simply nod my head to bills that are a dog’s breakfast. I will never do it. I have never done it on any legislation, as the Attorney-General well knows, and today is no exception. In relation to the media release …
Ms Martin: Fifteen seconds.
Ms CARNEY: I know that I have 10 seconds left. I do expect an apology, Attorney-General. I will be taking the matter further and I will leave you to guess what that might be in the event that you do not apologise. Politics is politics, but this is garbage.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I have always accepted that the member for Araluen has a genuine commitment to child protection in general. What today has illustrated is she does not know how to turn it to maximum effect through the parliamentary process. I made it very clear, right from day one - in fact, it is the whole purpose of the structuring of the legislative process in this House - that there is the opportunity between the tabling of a bill and its ultimate debate to have a dialogue about the provisions.
You can claim that it is no longer worth anyone’s while to come and talk to me. I resent that. I have always prided myself on the fact that if someone comes up with a genuine concern and ideas or suggestions that will improve the outcome for Northern Territorians in whatever I have responsibility for, I have consistently and without fail given a serious response to that.
Let me reiterate the process that I wanted to establish and have established in this House. When a bill is tabled, there is ample opportunity to come and talk about amendments if there is merit in the suggestion. I will always get work done through the department on any suggested amendment that I feel could add value to a bill. That offer was made on day one; it still stands.
Equally, I have said that there is no prospect of walking into parliament on the day of debate on a bill and proposing amendments of a technical nature without the ability to have their merit examined by the agency. It is simply not good law-making; it is making technical provisions on the run without recourse to the expert advice that would normally apply to the development of legislation. We cannot afford to make laws in the Northern Territory on that basis.
I am reiterating today the process, which is very clear, for members. I welcome any member, whether it is the opposition or Independents or members of our own Caucus, if they value-add to legislation that has been presented to this House.
I do not believe that I have changed or that there is any less opportunity to do that today than there was three years ago or anywhere in between. I have demonstrated it on enough occasions now that I believe I can point to my record on that.
In respect of the media release, I wish the members for Brennan and Drysdale had applied the same passion about a debate still in progress in the House to their own colleague. I was reacting to the member for Araluen racing as fast as her little legs could take her to the nearest media outlet to talk about the debate. The media release I issued said I found it absolutely bizarre that the member, on one hand, can have on a web site, comments welcoming the bill and its contents, comments she had made in other forums as well at the time, and suddenly has this trenchant opposition to the bill.
I am not and did not say that she does not have the right to come in here and take a position on it. What really disappoints me about the member was that in the two months that intervened between the time that she formed an initial opinion on the bill and the time that we came to debate here, two months in which the detail of the bill was available to her, not one contact, not one discussion with me about the bill.
The member knows absolutely, Madam Speaker, that I would have responded positively to an approach.
Madam Speaker, the media release simply said that the member had indicated that the opposition was going to oppose the bill. When you oppose a bill, you oppose its contents. The rest of the media release simply outlined the contents of the bill. Now, if you take exception to that, perhaps you need to get a thicker skin but when you oppose something you oppose the contents of it. You cannot oppose it and agree with the things that are being done. It does not work that way. If you oppose the bill, you oppose its intent and you need to get out there.
What I will put on the public record, and I am more than happy to, is that I acknowledge that you have a sincere commitment to these issues. I acknowledge that you would like to see these issues worked on and resolved. My commitment is there as well. I believe that the legislation we are passing today is good legislation and, as I said earlier in this debate, we all have to live with the results of it. If the results are as bad as you say, I will probably have a pretty hot time of it in the next couple of years, but if you are wrong, I hope you will come and say: ‘Well, you did get it right’, and let us celebrate the fact that some of those kids going through those court hearings are going to have a better run.
So let us get that on the ground and see how it goes in the practical environment of court hearings and hope that we get some higher levels of convictions of these predatory people who are committing these crimes.
Motion agreed to; bill read a third time.
SUSPENSION OF STANDING ORDERS
Move Motion of Censure
Mr BURKE (Brennan): Madam Speaker, as there is no question before the House, I move that so much of standing orders be suspended to allow me to move a motion of Censure against the Attorney-General.
Motion agreed to.
MOTION
Proposed Censure of Minister for Justice and Attorney-General
Proposed Censure of Minister for Justice and Attorney-General
Mr BURKE (Brennan): Madam Speaker, I move:
That this House censure the Attorney-General for breaching Standing Order 62, which states in part:
- No member shall … attribute directly or by innuendo to another member unbecoming
conduct or motives ...
This is a motion that can be dealt with very quickly simply by the Attorney-General apologising to the shadow Attorney-General.
He ended his comments in the third reading speech by saying we live by our actions. Well, the actions of which I accuse the Attorney-General this afternoon are the actions of impugning the reputation of the shadow Attorney-General, breaching Standing Order 62, which clearly states that that is not allowed in this Chamber, doing it publicly and libellously in a manner which I believe is absolutely disgraceful.
The Attorney-General stated that by opposing the legislation, the shadow Attorney-General has therefore opposed those aspects of the legislation that protect children. That is clearly not the case. That is clearly not only misleading this House, but misrepresenting the shadow Attorney-General . She has opposed the bill in the way it can act in its implementation and has made various suggestions as to how that could be improved in legislation.
Madam Speaker, it cannot be left to be alive that the Attorney-General can stand by a libellous media release without the censure of this House. I place my case on the motive that is behind the first paragraph of the media release, which says:
- Less than a week after Territorians were appalled by revelations about child pornography in the community, the Shadow Attorney-General has opposed a bill to protect child witnesses in sex abuse cases.
This is an absolute misrepresentation and a clear suggestion to Territorians, who are alarmed about paedophilia in our community, that a member of this parliament is supportive of actions that would allow paedophilia in all its forms and actions that would make vulnerable witnesses and children more vulnerable, particularly in the courts, to go on. That is an allegation against the shadow Attorney-General that I believe impugns the reputation of all of us in this House and cannot be allowed to stand.
I expect this censure to be lost by weight of numbers, sadly. I gave the Attorney-General the opportunity to apologise to the shadow in the third reading, to disavow himself of the comments in that media release and he refused to do that. He said that the shadow Attorney-General and opposition should have a thicker skin. Let him get a thicker skin.
You cannot, Attorney-General, be allowed to be the top law officer in the NT and, by media release, impugn the reputation of my colleague the shadow Attorney-General without inviting censure from the opposition, and that is why you have it today.
You cannot suggest that somehow, the shadow Attorney-General, by her actions in this House, has done something that protects the actions of paedophiles. You cannot do it. You should not do. You cannot somehow make the connection that because she opposed the legislation that you introduced, because she used this as a House of debate to question the legislation, she is aiding paedophiles in Australia. You cannot make that suggestion.
You certainly cannot say that what the shadow Attorney-General opposes is preventing young victims having to live through ordeal again and again through the trial process. That is clearly something she does not oppose.
You cannot say that she opposes protecting other vulnerable witnesses, such as adults with an intellectual disability. You cannot say that she provides for children and other vulnerable witnesses to give evidence by pre-recorded statements in committal proceedings and therefore she opposes that aspect of the legislation.
You cannot say that she opposes introducing time limits for prosecution in sexual cases, and you cannot say she opposes abolishing oral examination of children in committal proceedings for sexual offences. You cannot say that her actions in this Chamber are bizarre.
The issue is not the debate in this House. The issue is the reputation of a colleague and member of this parliament. If it were on many other subjects, I would agree that we need to have a thicker skin, but no one in this House should be allowed to get away with accusing any member of this House of supporting paedophilia in any of its forms. No one should be allowed to get away with that.
The shadow Attorney-General is correct: for a government that came to government with such high standards, you soon dropped them. There have been conversations in this House today about the personal abuse that is creeping into this House more and more. If you want to get right down in the gutter, we can get down there, too. Member for Casuarina, take note.
We do not want to go that far, but if you want to start off with that business today, do not walk away from this media release. You should walk away from it. I can tell you that I personally have a lot of respect for you and the way you discharge your duties as Attorney-General, but you diminish not only yourself, but everyone in this House, by allowing this media release to stand.
The media is listening up there tonight. Why don’t you stand up and be a man and say: ‘This media release goes too far. We might have political differences, but this media release goes too far. I certainly didn’t make any suggestion that the shadow Attorney-General in any way, shape or form supports any of those actions that are in the media release. I am certainly disappointed that she didn’t agree with my legislation. I do not agree with the points she made. The legislation stands. The government stands by its legislation’? But disavow yourself of this media release and this censure motion can go no further.
If you do not do that, it is a sad day for this Northern Territory parliament, and it is a particularly sad day for you, personally, Attorney-General, because there is one thing that the newer members of this House should have figured out by now, if you have not figured it out already, and that is what goes around comes around. It might be your go around turn today, but it will be your come around turn tomorrow. You have an opportunity to stop the wheel from turning if you want to now, and all I do in the censure motion is ask you to do it.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, it has been a very difficult day. It has probably been a very difficult couple of days in the parliament, as you yourself have pointed out. We do become very heated in debate.
I have spent most of today being called unprincipled, arrogant, an idiot, a fool. If we are going to talk about reconciliation, and I presume that is what this censure motion is all about - that the member over there feels that her very long commitment to these issues has been somehow impugned - well, maybe it has to be a two-way process, because I pride myself very much on trying to maintain objectivity and respect for this House.
In the old days when we were in opposition, I got several demerit points for never being thrown out of this House because I genuinely respect the processes that go on here.
In respect of the issues before us, the member for Araluen has not entered this exchange today with an attitude that allows me to respond to her. She has not used the process that I, in high sincerity, offered her, both in the general processes of legislation here in the House, and in the particular negotiation that could have occurred on this bill itself.
There are many issues involved in the bill, issues about which she and I have spent many years trying to change. Every time I see a kid out there in the community, I want to know what I can personally do to support them. All I am trying to say is that I came here with equal passion about this legislation as the member for Araluen.
For that reason, I was disappointed not only with the attitude that she adopted during the debate, which I found personally very offensive, but also the fact that she had gone to the media, and I will read a transcript from the 12.00pm ABC Radio News:
- The shadow Attorney-General, Jodeen Carney, has described the legislation as ‘a dog’s breakfast’,
which the opposition will be opposing, based on several obvious flaws.
Among her concerns is that new provisions for taped statements by children and other vulnerable witnesses
are not accompanied by appropriate privacy safeguards.
Ms Carney has told parliament the explicit recordings detailing their abuse would be given to defendants as
part of their trials and could be easily put on the Internet.
She says that similar laws interstate include penalties for improper use of evidence taped.
Ms Carney also questioned the security of the tapes once the case is over, with a private company currently
contracted to archive court materials.
If the opposition want to say that I had no right to respond to that then, perhaps what is good for the gander in this case is also good for the goose. Either we are not going to comment about a debate in progress in parliament and the position taken, or we are. The opposition has said very clearly that they are going to oppose this bill. My media release quotes directly from the CLP web site:
- CLP shadow Justice Minister, Jodeen Carney, has welcomed the government’s moves to introduce measures
that will assist some witnesses giving evidence in court.
Ms Carney even goes on to, I think, claim credit for some of the content of the bill. I will not deny that we have had discussions about it, and that I have taken note, as I promised, of what she had to say in the House right from the time of her maiden speech. She said on the web site:
- In fact, I introduced a bill in May this year seeking changes to the Evidence Act providing for courts to be
closed when sexual assault victims give evidence, and this is part of the new bill so it is a good result.
In my media release, and I do not retract this part of it at all, I said it is a bizarre position to take. Right up to the time that legislation came on for debate in this House, two months after it was tabled here and two months after the member had given that response to the legislation on introduction, we now, out of the blue virtually, have this trenchant opposition to it on all fronts: There was absolutely nothing right with the bill; everything had to be chucked out, removed. That is what I am calling attention to in this media release, the fact that it was a bizarre series of positions that the member took.
I will retract one part of what was said. I do not want to leave on the public record that I am impugning your commitment to these issues. I believe that you have a sincere commitment to protecting kids and to improving processes within the justice system to achieve that aim. The media release, by putting your name against the contents of the bill, could convey that, although it was not in the words, and it certainly was not the intention to say that that was your personal position.
What I was indicating, quite correctly, is that the CLP was opposing the bill; this is what the bill deals with; these are the contents of the bill. When you oppose a bill, you oppose the contents of it. That is a statement of fact and it is an incontrovertible fact. You will have it on Hansard from right now that I do not believe that is your personal position, that you are uncaring or opposed to the type of protection the bill is providing for kids.
That is as far as I believe I have to go. I would be very grateful if the member could show some graciousness in return and say that I am not arrogant; that I do include members of this House in the legislative process to the highest degree possible; I am receptive to people or any member who wants to bring a proposal in legislation to me for inclusion in a bill. All of those things are on record. They are in my records of past action. After a whole day of what has been described as venomous attacks on my person and integrity, perhaps an apology might be a gracious way to end the day, and we can then get on with our working relationship across this Chamber with better spirit in future bills that we are going to debate.
However, I believe the CLP needs to explain, if it is going to oppose the bill and show such trenchant opposition to the bill that went through today, its policy. What are you going to do about it? What I know now is that as of about half an hour ago, we have the prospect of working legislation, once it goes through for assent, and it will be in the courts and being used in a very short time. I am happy with that result for a day’s work - in fact, it was quite a few months’ work on this legislation.
I again say that I acknowledge publicly that the member for Araluen has a genuine and long-standing commitment to these issues, but equally, the rest of the media release stands because it deals factually with the position taken by the CLP today and the contents of the bill.
Mr DUNHAM (Drysdale): Madam Speaker, I think we had an apology of sorts there, and I am grateful to the Attorney-General. I think he realises that my colleagues, the members for Brennan and Araluen are offended by this media release and the impugning that goes with it. I thank him for his apology because it has gone a long way to put this matter to bed, largely.
I was suspecting that something like this might happen because there were a number of interjections while my colleague was speaking, about where she had obtained information, and they came from the Leader of Government Business and others, and it seemed that it was turning into a fairly hot debate. She has a fairly vigorous style of debating, I admit, and I have been…
Ms Martin: Offensive is probably closer to it.
Mr DUNHAM: Pardon?
Ms Martin: Offensive, I would have thought was closer.
Mr DUNHAM: Offensive? It may well be offensive to you but it is it is pragmatic. Warriors who go out into the community to fight the good fight for children often fight hard. That is why I was so offended in the first place. I have seen this warrior in action and she does fight hard. She fights vigorously for the rights of children.
It is a long bow to draw from the Attorney-General’s difficult day to the issues in the media release. If you look at his umbrage, there was concern about the security of videos of traumatised children recounting stories of the sexual horrors that they have faced, and that is a reasonable thing for us to consider.
Indeed, the Attorney-General says that he will consider it. Even though he does not see it as necessary to put it into statute, he also believes it is an important issue. So what was on the radio did not say, ‘I think Dr Toyne aids and abets people who assault children’. Dr Toyne was offended by the fact that there were some criticisms of the capacities and style of this legislation and whether it was adequate to continue to defend children insofar as the images on videos were concerned.
We have all seen and read about the unauthorised release of videos, so you cannot make the assumption that this is a trite, stupid or in some way a fabrication from the member for Araluen about this issue. It is a significant issue.
He retorts by saying okay, you have offended me by talking about where the videos might be stored, and I am saying that you oppose preventing young victims having to live through the ordeal again and again, and you oppose protecting vulnerable witnesses. That is a very long bow to draw. It was only a couple of days ago when Hansard will recall that this very member introduced a bill in to protect witnesses. Hansard will also recall that the Attorney-General opposed it. He opposed the bill to protect witnesses.
If this process of saying here is a bill to protect witnesses, the Attorney-General opposes it, therefore he is a person who believes that vulnerable witnesses should not be protected. He has a form of words in his bill. He says: ‘Mine is better than yours’ and ‘Thank you for doing this several months ago, but I have only just come onto it’. He does not like being accused of being arrogant, but he drops this thing a month ago, which is more complex than the bill my colleague introduced, and he expects us to have a thinking attitude to it. Rather foolishly, we believed that his public utterances would be vaguely similar to his statutory utterances in the bill.
As we went through clause by clause, we found that there was a vast difference. It is our duty to point this out, and we can use words like ‘fraud’ and ‘it’s not what you wanted’ and ‘you are misleading parliament’. They are forms of offence we all get from time to time and they really deal with matters of legislators not really hitting the mark or being sloppy or tardy or missing the case when there was a bill on this parliament’s agenda for some months and it took him until the 11th hour to have a look at it. All his arrogance of asking why no one talked to him and why we didn’t run through it, in this case, can be put on the other foot because on Tuesday, did the Attorney-General make an appointment to see my colleague, the member for Araluen? Did he go and see her? Did he say: ‘I have a few clauses here that might make your bill a bit better’? No! He showed up in parliament and said: ‘It all stinks. Get rid of it’.
This is the same bloke who says: ‘I dropped mine a month ago. I have had several months to read yours, but I dropped mine a month ago. I want you to read it, and here are some media releases on it’ and all of that stuff. It is the height of arrogance to make the assumption that we will come running up to his office and say: ‘Gee, that’s wrong and that’s wrong and I put a lot of work into changing this’ when we suspected that it would be rammed through, and it was.
It could be that it is brilliant legislation. It could well be that we will never experience problems in our courts again with vulnerable young witnesses. I suspect that is not the case. I suspect that, no matter how we try and strive, we will always have problems in this area and we will always have to look at doing it better. We might even have to go to practitioners. We might even have to go to people with experience in this area.
What good fortune did we have in parliament tonight? We had an Attorney-General presenting a bill and a practitioner with years of experience trying to give some legs to the bill, some resilience, trying to give some protection to young children in the bill being told that she opposed preventing young victims having to live through the ordeal, that she opposes protecting vulnerable witnesses, she opposes providing children and other vulnerable witnesses to give evidence in pre-recorded statements, she opposes introducing limits and opposes abolishing oral examination of children.
That is a pretty long bow. If the logic of the Attorney-General is to be believed, there is a lot of stuff to which he is opposed. We can go to the bill that we discussed on Tuesday, which attempted to do a number of things. For instance, it was to protect vulnerable witnesses. If the Attorney-General knocked that bill out, can we say the Attorney-General opposes protecting vulnerable witnesses? It determined what was in the best interests of justice. So is the Attorney-General, in opposing the bill of my colleague, opposed to the interests of justice?
If we are looking at the best interests of justice in my colleague’s bill and it is opposed, is it the same argument that she can mount by media release that we have an Attorney-General who is not interested in justice? I think not.
For him to say that he was mightily offended that some words flowed across the parliament about his competence and like things, that is the cut and thrust of debate in here. It is another level altogether to talk about people who are uncaring about children brutalised in our society by sexual offences. That is where he went, and that is not the right area to go.
I am heartened that his apology, from my reading of it, might satisfy my colleague, and I have not conferred with her because this debate is on foot, but I thought at least it goes to: ‘I was wrong; I impugned her character, which I did not mean to do, and I know her to be a worthy, humane, upstanding and caring person’.
That satisfies me. I think he has made a vital mistake in making the assumption that unless you are on board the good ship ALP as legislation comes through this parliament, you are against everything that democracy stands for and everything that those statutes represent. That is a foolish argument, and I believe that it fully offends Standing Order 62. There is absolutely no doubt in my mind that the member attributed directly, not by innuendo, but directly to another member, unbecoming conduct or motives. The release carried the heading ‘Carney plays politics over bill to protect children’. We do not play politics; we do politics. Politics is our job. It is our very job to invite politics into matters relating to how statutes and legislation pass through this parliament.
The insinuation is that it was a frivolous, vexatious activity, this playing of politics, and it was merely to use this bill as a play thing for the furthering of the political interests of my colleague. That is totally unfair, and I say that as someone who met a lawyer called Jodeen Carney before she was Jodeen Carney, MLA, and I can vouch for her credentials. I have seen her work. I have seen the results of her work. I know that she was the advocate of children in courts in cases that my particular make-up and weaknesses would not allow me to do. I can say that on the record. I would not be able to do what this shadow Attorney-General has done in her work life.
Hopefully, some of the tempers have been cooled. I do not think it helps that the Chief Minister comes in here and wants to continue the debate by various trivial interjections …
Ms Lawrie: Huh!
Mr DUNHAM: No huh about it. Some of the stuff that flies across this Chamber is becoming more vengeful, vitriolic and hurtful.
Dr Burns: Oh, now come on! How can you say it with a straight face?
Mr DUNHAM: Okay, I will take the point of the member for Johnston. Some of the debate in here is not becoming more vengeful, vitriolic and ...
Madam SPEAKER: Shall we just get back to the censure motion?
Mr DUNHAM: The censure motion is about this, Madam Speaker. It is exactly about this. It is about this Chamber progressing towards the brink of using this place, and the words that are used in this place, as matters from where there is no comeback.
I am grateful that the Attorney-General has given a route to come back from this particular thing. I leave it to the judgment of my colleague whether she wishes to progress the matter further. I, for one, in the words that I hear, am grateful that he has used some wisdom to retreat from the position that has been put in this media release.
Mr HENDERSON (Leader of Government Business): Madam Speaker, obviously, we will be opposing this motion for a number of reasons. It is going to be interesting to look at the Hansard of this debate to see exactly what was said during the course of the debate.
When I look at the media release, I have it here and I have read it, I can certainly say I have seen a lot worse. I have seen a lot worse over the years in regards to a political attack on any member of this House in the current session of parliament and certainly in many previous sessions. I understand that this is a very sensitive issue and, as I said in the third-reading debate, of all the legislation that we pass through here, why this debate has descended into such depths of acrimony is totally astounding.
I did not hear all the comments that my colleague made when responding to this, but the undeniable position of the shadow Attorney-General regarding the comments that she made in the second reading, where she indicated that the opposition would be opposing the bill, and in the wrap of the committee stage of the debate when she urged my colleague the Attorney-General to defer the passage of the bill into law for a week, whatever period. With all these significant concerns that are out there in the legal world - all these dozens of esteemed lawyers who have huge concerns with this bill - not one of them has contacted my colleague, the Attorney-General’s office. You would have thought that if there was this massive uprising in the legal profession with huge concerns in regard to this bill, that in the two months that it has been on the Notice Paper, the lawyers who practise in this area of law - and it represents significant reform - I imagine a large number of them would have looked at the bill. I would have thought that if there was this huge groundswell of opposition in the legal profession, one of them would have picked up the phone to the Attorney-General’s office and said: ‘Can I speak to the Attorney-General? I have a real concern with this bill’. Did you receive one call?
Dr Toyne: No, zero.
Mr HENDERSON: Not one call. I challenge the shadow Attorney-General to provide any evidence that there is this huge groundswell of opposition in the legal profession to this bill such that we should delay passage to allow these concerns to be heard. The only person we have heard who has any concerns about this bill is the shadow Attorney-General, concerns that are so deep, so passionate, so conviction-based that she could not pick up the phone to the Attorney-General or walk across the road in Alice Springs from her electorate office into the Office of Central Australia to say: ‘Hey, Mr Attorney-General – Pete, I have problems with this bill’.
The position today had not been flagged. As my colleague, the Attorney-General, stated in his media release, all the comments that have been publicly made by the shadow Attorney-General have been positive - until today. Today, she waltzed in here and for four hours paraded line by line, word by word, through the bill, saying that this is such a heap of garbage, it is a chook’s breakfast and deserves to be thrown out or, at the very best, the passage of the bill should be deferred.
What is the impact of that? She said the bill needs to be thrown out and re-written. We have legislation today that has been in the public domain for two months on which an enormous amount of consultation took place beforehand. What is the result of that: either the bill being withdrawn and re-written because it was so appalling, and that was her initial position, or deferred?
The impact of that is that, for a period exceeding the time between now and when the bill is assented to, children will continue to be exposed to the current processes within out courts. That is the outcome of what she was espousing today. That is all that my colleague, the Attorney-General, has referred to in his media release, pointing out the bleeding obvious that if this bill does not pass today, the outcome will be that kids in our courts will continue not to have the protection afforded to them in this legislation. That is pretty obvious, and that is all that my colleague has said in his media release.
As I said, I have seen a lot worse on both sides of this parliament. In his initial comments, the member for Brennan talked about my colleague, the Attorney-General saying the member for Araluen was protecting paedophiles by this. I thought: ‘Gee, that is a bit strong if Pete’s put that in his media release’. I got hold of the media release and it does not mention it at all. It does not mention the word ‘paedophile’ or ‘protection of paedophiles’.
Mr Stirling: That is not what the member for Brennan said.
Mr HENDERSON: That is not what the member for Brennan said. I cannot find anything in this. The sensitivity today I find absolutely extraordinary. I am still grappling with why the member for Araluen has been so venomous and vexatious during debate on the bill today.
There would be a significant number of people who were listening to the parliamentary broadcast today, people in Parliamentary Counsel, the Department of Justice, the legal officers who have worked so very hard on this legislation for many months now with the best intentions of putting the best possible legislation together that reflected the Cabinet decision that this legislation arose from. Those public servants have no right of reply in this parliament. I would be very surprised if there is not a large degree of hurt amongst those people with the accusations that the member for Araluen has laid out today that this bill is absolutely hopeless and it is not going to achieve what the intent was set out to achieve, it has been so appallingly drafted that you can drive a truck through it and there is going to be no improvement whatsoever in protection of children throughout court processes.
I could stand here and accept it as part of the argy bargy of the political process. If it had been my colleague, the Attorney-General, who actually sat down at his computer and drafted this legislation, I could have accepted that that is part of the argy bargy of the political process. The fact is that it is not. We have highly respected, highly competent, esteemed public servants, legal officers in the Department of Justice and Parliamentary Counsel who have busted a gut, Madam Speaker, to get this legislation together. For them to have been vilified, harangued, their competence called in to absolute question, alleging that this bill is so flawed that it needs to be thrown on the scrap heap without producing one person from the legal profession to back her comments up is absolutely outrageous.
I am inclined to amend this motion and call on the member for Araluen to apologise to those public servants for the vilification and vitriol that she has heaped on their competence. It is absolutely astounding.
I can say that as Chair of the Standing Orders Committee, I will be referring this debate to the committee to look at our standing orders to see how we can further afford protection to our public servants who have no right to reply in this place. They have no right to reply in this place to the venomous tirade of invective directed at their competence. It is absolutely astounding. This censure motion holds absolutely no water. I would probably not have accepted it but I had not seen the media release when the member for Brennan jumped up and made the allegation that my colleague, the Attorney-General, had accused the member for Araluen of protecting paedophiles, I thought we had better have a look at this, but when I read the media release, it does not say anything of the sort.
It just points out the consequences of withdrawing this bill, as was called for. It is so bad it needs to be withdrawn altogether or at least deferred. The consequences of that is the status quo remaining in our courts until such time as a bill to accord them further protection is passed. All it does is maintain the status quo. Again, I am not a lawyer but I will be astounded if she could find anything to take my colleague to court on about this matter.
Members interjecting.
Mr HENDERSON: Not one amendment. Not only could she not produce one lawyer, one third party advocate, to back up her comments that this bill was so flawed that it should not even been debated and passed today, she did not produce one amendment to try to improve the legislation.
Four hours worth of grandstanding and rhetoric, out to the media at lunchtime saying that this is so flawed it is a chook’s breakfast. If anyone has been playing politics today, it is the member for Araluen. In playing politics today, she has called in to question the competence of a large number of people who have been putting this legislation together and who, I would imagine, are pretty upset about the way this debate has progressed and pretty hurt by comments from the member for Araluen. I call on the member for Araluen to apologise to those public servants for calling their competence in to question …
Ms Carney: Well you know what you can do!
Madam SPEAKER: Order!
Mr HENDERSON: For calling their competence into question and asserting that they have not done their work, they have not done the research on best practice legislation to pull this together. If anyone should be apologising today, it is the member for Araluen.
Madam Speaker, I move that the motion be put.
Motion agreed to.
Madam SPEAKER: The question now is that the censure motion be agree to.
Motion negatived.
POLICE ADMINISTRATION AMENDMENT (FORENSIC PROCEDURES) BILL
(Serial 241)
(Serial 241)
Continued from 19 August 2004.
Mr DUNHAM (Drysdale): Madam Speaker, we support this bill. We think it is a great thing.
Ms Martin: Where is the shadow?
Mr DUNHAM: Pardon?
Ms Martin: Where is the shadow?
Madam SPEAKER: Order, thank you! Chief Minister, order! We are in debate.
Mr DUNHAM: What is your problem? Under standing orders, I can rise and speak. If you have a problem with that, you are going to have to change the standing orders.
We support this whole heartedly. In fact, we are quite proud to be the architects of this very strong legislation, stronger pretty much than anywhere else in Australia. It is interesting that when it was first introduced, it was seen as a big break through. We had briefings from pretty much the same people who are working there now, Mr Thatcher and others in the police department, and it was seen as the best thing since finger-printing.
We introduced very strong legislation, the like of which was not available to governments in other states because they had very strong human rights activism going in those places and it was seen that DNA science intruded on people’s human rights.
The legislation that we passed was Australian best practice and we know that because the other states are now looking to copy it. According to the police minister on radio recently, there are several other states looking to replicate our very good DNA legislation.
It should be strengthened. Members will remember that when we introduced it, there were several of us who stood out the front and had buccal swabs taken. I was among them. It was important that we said to the community that we think this is a very good crime fighting device. Notwithstanding some of the protests in other states from human rights activists, we thought that it protected not only the rights of victims, but of people erroneously accused. There is a long history of matters relating to DNA here, in the UK and other places that I do not need to recount here.
What is really important is that the government has finally recognised that it is the good DNA legislation put in place by the CLP that has been responsible for the drop in property crime because what we found, and this was evident when it was introduced, is that often there is a progression of crime, which was the UK experience, so that someone who opportunistically broke in became someone who chose to break into places, who became a voyeur, who became a rapist. It was not until later when the sequences of crime were identified through DNA that you could see the graduation in severity of offences from some of these people.
We thought it was pretty important to introduce DNA legislation and to focus on property crime because we thought it was a fairly good preventative technique to stop people early, while they were doing the relatively minor crimes of break and enter, compared with what might follow, particularly if international examples held true.
We were very pleased to hear minister Henderson, and I will quote it into the Parliamentary Record, on Monday 27 September, which is only last week, say on the 7 am news on ABC 8DDD Radio:
- It is recognised that our DNA legislation is the toughest legislation in Australia, but it is also legislation
that is being modelled by the other states, given the success we have had here in the Northern Territory,
particularly the success in terms of clearing up property offences.
It also has been recognised by the government that the clean up in property offences is largely attributed to DNA. The CLP government not only put the lab in on the campus of Peter McAulay Centre at the cost of some millions of dollars, but we introduced the legislation and statutory underpinning that was necessary.
In a quaint way, it is a very good accolade from the Police minister to his predecessors, and he is right. It is tough legislation. It should be in place in other states. Along with the science that is available to us in the lab out at the Peter McAulay Centre, it has been the major impact on property crime, and is definitely a preventative technique for criminals who would go on to harder, harsher and worse crimes.
We support it. We support other states picking it up. We believe that it has been the major contributor to the drops in property crime and we thank the Police minister for his accolades.
Mr HENDERSON (Police, Fire and Emergency Services): Madam Speaker, I thank the member for Drysdale and the opposition for their support.
I am happy to hand out accolades where they are deserved. Certainly, this legislation, when it was introduced by the previous government, was groundbreaking. We supported it at the time. We continue to support it and, yes, my accolades do go to the previous government and the officers at the time who developed the legislation.
We have stood firm. As government, we inherited this legislation three years ago. My colleague, the member for Nhulunbuy, the first Police minister during our term of government, took on an extraordinary fight at one Police Ministers’ Council where one of the states, and certainly the Commonwealth – which is very interesting, given that we have, hopefully, only until Saturday and then after Saturday it will be a Labor government, but a conservative government at the time – was trying to undermine our legislation and essentially demanded for the Territory to be part of a national DNA exchange program, saying that we would not be admitted to that program unless we wound back some of our legislation. We refused to do that. We are still holding strong, and the Commonwealth is slowly backing off. The reason that they are backing off is that, along with the other states, again, the police here pioneered the use of this DNA legislation for mass volume crime, especially property crime. That was pioneered here in the Territory.
Previously, DNA has been used for crimes of violence. We have seen, through a number of Genesweep operations, a massive clear up of property offences. Police commissioners and police ministers around the country have seen the success that we have had and we now have exchange agreements in place with Western Australia, Queensland, Tasmania and the ACT, and we are hopeful to conclude an agreement with South Australia by the end of this year.
Police ministers and police commissioners are looking at what is happening in the Territory, and this is good. It is good for Australia. I have absolutely no time for some of the civil liberties arguments that somehow this is an invasive process, and the fact that we keep DNA profiles forever on the database, and somehow people’s rights are being abused. I, too, have had a buccal swab taken. I have had my fingerprints taken. The reality is, from a civil rights perspective, particularly if you look at the United States where capital punishment is still a fact of life in most of the states, DNA has been getting people off death row, people who, prior to DNA technology being available, would have died at the hands of the state. Some people on death row can prove their innocence as a result of DNA technology. DNA does not convict, on its own, innocent people.
Yes, I will hand out accolades that it was good legislation. It is even better legislation as a result of these amendments. I hope that this parliament, through terms to come, continues to support and strengthen this legislation wherever necessary because what we have seen since this government came to office is a reduction in property crime across the Northern Territory of around 45%. Part of that is due to the DNA technology and Genesweep operations. Another significant part is the extra resources going to the police and the fantastic work they are doing in targeted operations, and work by the Police Commissioner.
The result of all of those things is that your chances of being broken into in the Northern Territory today, compared with what we inherited when we came to government three years ago, have reduced by 45% reduction. There is still a long way to go, but this legislation has had its place in achieving those very significant reductions in property crime.
Madam Speaker, I am very pleased that the opposition support these amendments. I can flag that I have one committee stage amendment that we need to go through before passage of the bill.
Motion agreed to; bill read a second time.
In committee:
Mr CHAIRMAN: The committee has before it the Police Administration Amendment (Forensic Procedures) Bill 2004 (Serial 241) together with schedule of amendments No 87 circulated by the Minister for Police, Fire and Emergency Services.
Clauses 1 to 8, by leave, taken together and agreed to.
Clause 9:
Mr HENDERSON: Mr Chairman, I move amendment 87, that the whole of section 147B(2) be omitted and substitute in its stead:
- (2) However, if a non-intimate procedure is carried out in accordance with a person’s consent
under section 145B for investigating an offence, the information obtained from the procedure –
- (a) must not be used for investigating another offence other than a
relevant offence; and
(b) is inadmissible as evidence in any proceeding other than a proceeding
for the offence or a relevant offence.
‘relevant offence’ means an offence that is a crime punishable by a term of imprisonment
of 14 years or more.
The amendment to section 147B(2) is not major, and is in line with the original intent of the amendment bill. This subsection is designed to provide protection for persons who volunteer samples to assist in criminal investigations. The reasons for the desirability of this protection were outlined in the second reading speech. The main reason is that by providing this protection, we will encourage suspects to freely give samples, which will help establish either their guilt or innocence.
The original clause made it clear that samples could not be used for other criminal investigations unless they involved an offence where there is a maximum penalty of 14 years or more imprisonment. However, police legal advisors have given this matter more detailed consideration and now believe that the subsection should be re-worded to make it clear that not only can it not be used for other investigations, but it cannot be used in other court proceedings unless the offence is one that carries a penalty of 14 years of imprisonment or more.
The legal advisors contemplated that there was a risk that the intent of the legislation may be circumvented if it was possible for another party – that is, not the police - might seek to get access to the sample information for the purpose of another court case. If there was a risk, we could see third parties issue subpoenas for this information, which had been volunteered with assurances of protection.
This amendment to section 147B(2) covers the same area as the original subsection, but makes it clear that the intent cannot be overcome by another party, other than police, seeking to get access to the volunteer samples. It does this by making it clear the prohibition includes investigations and court proceedings.
Amendment agreed to.
Clause 9, as amended, agreed to.
Remainder of bill, by leave, taken as a whole and agreed to.
Bill, as amended, agreed to.
Bill reported with amendment; report adopted.
Mr HENDERSON (Police, Fire and Emergency Services): Madam Speaker, I move that the bill be now read a third time.
Motion agreed to; bill read a third time.
MOTION
Note Paper - Remuneration Tribunal Report and Recommendation No 2 of 2004 –
Statutory Bodies
Continued from 24 August 2004.
Ms MARTIN (Chief Minister): Madam Speaker, this afternoon to brief members on the key elements of the Remuneration Tribunal’s Report on the remuneration of members of statutory boards and committees.
On 30 October 2003, the Administrator, acting on the advice of Executive Council, requested the Remuneration Tribunal inquire into and report on the remuneration paid to members of statutory bodies, and make recommendations in relation to the manner in which future reviews may be undertaken. The tribunal was asked at the same time to consider reforms to the classification structure for statutory bodies. To date, this is the most comprehensive inquiry undertaken by the tribunal in relation to statutory bodies. Whilst the tribunal makes a range of findings critical of the current system of administration of statutory bodies in the Territory, it also notes that the government is aware that there have been deficiencies. The report notes:
- The activation of this inquiry and the appointment of dedicated staff within the Cabinet Office of the
Department of the Chief Minister is expected to provide the information and resources needed to support
a rapid move to best practice in this area as soon as this report and recommendations are considered.
Some of the key findings of the report include:
- a proposal to categorise statutory bodies into a new tiered structure;
responsibilities required of this role. Without the payment of professional fees, there are
difficulties in securing members with specialist skills;
for members of statutory bodies that are considered to be self-interest. The tribunal has
recommended that these members now be paid;
the tribunal has recommended that members of the Territory Insurance Office, the Darwin
Port Corporation and the Northern Territory Tourist Commission boards receive an annual
payment including an additional sum for sub-committee work where applicable;
the Northern Territory is the only jurisdiction using hourly rates. The tribunal found it would
be more equitable to dispense with the hourly rate and set only a daily fee with a proportional
fee being available for short periods of time; and
form for members who have to travel extensively in their role.
A number of deficiencies regarding the current system were also outlined in the report, such as the rationale for the current fee levels, inequity of hourly rates, fees reflecting responsibility, ad hoc additions and amendments, and members’ responsibilities and contributions.
There will be financial implications if the government accepts the tribunal’s recommendations for an increase in remuneration, the payment of self-interest members on these boards which regulate the professions, and the introduction or regularising of entitlements such as travel and preparation time.
The report notes that since the sitting fees were last adjusted in 1994, they have fallen behind, taking account of the average weekly earnings growth differential over the same period. The estimated cost to government to implement all fee increases as a whole will be around $600 000. This includes fees to be paid to self-interest members on boards who were not previously remunerated. The additional cost is considered value for money and recognises the efforts and responsibilities of members of statutory boards across government.
Members of statutory bodies perform an important role within government. Collectively, their decisions can determine critical personal, business and property rights. It is necessary that members understand that they must act within the law, be loyal to the Crown, recognise government policy, act ethnically, exercise prudence and be economical with public resources.
There will also be resourcing implications if the government adopts the recommendations about improved administrative support for statutory bodies.
The report addresses the need for dedicated and professional support for statutory boards and committees within government in such areas as the development of policies and provision of advice on member recruitment, appointment and induction, ethical standards, governance standards and efficiency and effectiveness expectations.
It is anticipated that this resource would also be responsible for reporting members’ appointments and terminations, reporting meetings and remuneration information, the development and maintenance of a comprehensive centralised database on statutory bodies and the maintenance of a register of potential members. Many of the tribunal’s recommendations reflect the need to ensure these concepts are understood and observed. They are important from a good governance point of view and will bring the Northern Territory into line with best practice around Australia.
The key recommendations of the tribunal include a restructure of the fee schedule, new administrative support arrangements and legislative changes. Recommendations include:
- members’ sitting fees – to see an increase in the minimum fee from $135 per day
to $180 per day and the maximum fee from $490 per day to $568 per day;
to $240 and the maximum fee from $490 per day to $757 per day;
into various tiers and levels of responsibility. Each tier and level attracts a different rate of
sitting fee, similar to the approach taken in other jurisdictions;
classification structure for statutory bodies and remuneration levels to apply in each category
and for ministers to determine the allocation of statutory bodies to classification compartments
to be based on advice from the administering agency and from the Department of Chief Minister;
at least where members undertake significant amounts of travel;
of a register of potential members;
and responsibilities of board membership. Work has already commenced on such guidance materials;
statutory bodies, remuneration, benefits, recruitment, ethical standards, governance standards, efficiency
and effectiveness expectations, reporting requirements and classification procedures; and
a comprehensive database to be created on statutory bodies. The Cabinet Office currently manages a database
of boards and members, but this does not contain details of remuneration and annual returns.
Mr MILLS (Opposition Leader): Mr Acting Deputy Speaker, I acknowledge the work of the tribunal and the effort that goes into such reports. The report is duly noted.
Motion agreed to; paper noted.
MINISTERIAL STATEMENT
Work-Life Balance
Work-Life Balance
Mr STIRLING (Employment, Education and Training): Mr Acting Deputy Speaker, much has been said over the years about the difference between the baby boomer generation, which ended in 1961, and Generation X, which followed. One of the differences evident is the attitude that they take toward work, life outside of work and the concept of quality time with self, family and friends.
Our generation of workers had drummed into us the belief that the longer you worked, the more hours you put in, the more this reflected your commitment and your dedication. It was a sign of productivity, and often a key determinant of your promotional chances in the workplace. Times have changed.
Today, more and more workers question what is important in their life, and the answer is, to them, not working longer hours. Today, people do not define themselves exclusively by where they work or what they do and, as an ageing baby boomer myself, I applaud this change.
This ministerial statement articulates the government’s work-life balance policy issued in the booklet on members’ desks. It will be examining work-life balance issues and their application in the Territory public sector. It will point to efforts taken by government in implementing a flexible workplace.
The government is committed to the development of a responsive, flexible public sector, which provides excellent services to the people of the Territory. We support employees in balancing their work and life commitments, and we recognise that balancing the needs of the workplace with those of the employees will create a more productive and effective public sector.
The concept of work-life balance recognises that all employees have commitments outside of the workplace. These commitments may relate to family, education, the community or to general health and wellbeing.
All employees, for many different reasons, may need to balance their work and the rest of their lives, and reasons could include:
- either parent wishing to be more actively involved in their parenting role;
people retiring earlier, living longer and therefore available for and interested in undertaking
part-time or alternative working arrangements;
community obligations, including cultural and ceremonial events; and
people who take on responsibility for providing care for their relatives, be they aged, disabled
or infants,
A number of significant changes have occurred in Australian society over the last 30 years. These have had a direct impact on the way work is both viewed and carried out. Family structures have changed. Between 1976 and 2001, the proportion of families made up of the traditional couple with children fell from 60 to 41% of the Australian family mix.
Today, there is a growing number of families that are either single parent or couples without children. There has been a shift in financial and social expectations. Embedded concepts of equal opportunity and the changing roles of families, as well as the need for dual incomes due to financial pressures, have all contributed to more women entering and staying in formal employment. These circumstances are particularly evident in the Territory. Couple families here are more likely to have two incomes than those in the states. The situation is similar for one parent families, with Territory single parent families more likely to have a working parent than all states except Western Australia.
Another variable comes through our ageing population, and a consequence of this change is that many more people of working age now need to care for an elderly relative or partner than has previously been the case. As stated earlier, members have a copy of the policy booklet distributed with this statement, and the policy contains a six point implementation plan which we will now set into action.
First, government will articulate the case for work-life balance issues. To ensure that these issues are treated seriously, we will make sure evidence is available from case studies conducted by the public sector to show the business case for implementing a flexible workplace and specific strategies.
Second, we will consolidate currently available work-life balance options.
Northern Territory public sector employment conditions allow for a wide range of flexible working options, and offer excellent entitlements to employees. There are numerous options for work-life balance practices that agencies are currently able to implement. Some provisions are set up in the Public Sector Employment and Management Act, the relevant award or certified agreement. They include:
- flexible working hours, which enable employees to have greater flexibility in their attendance
patterns by various start and finish times, length of breaks, and the length of the working day;
and, for some employees, this may mean working at home on a regular basis, for others, it may involve
working at home on specific projects;
part-time. No two job sharing arrangements are alike, and each arrangement is designed to suit the individual
needs of the employees and the employer;
to meet the needs of employees and employers;
right to return to a position at the same level of employment. This leave may involve recreation leave, long-service
leave, leave without pay, or a combination of them;
employee may wish to be on leave when their children are on school vacation and may negotiate for additional leave
over the year, some of which will be unpaid leave;
allow an employee to meet family and community responsibilities. The leave may be for a few hours or for a number
of days.
Implementation of our work-life balance strategies will see us ensuring that these tools of a flexible workplace are widely understood as options for employees.
Third, we will investigate new work-life balance options. Following is a list of the innovative options which are in use in other organisations and, in some cases, are already being used by some agencies within the Territory public sector. It is not intended to be an exhaustive list of options, nor does it suggest matters have been determined. They are possible options in developing workplace flexibility, keeping in mind the operational and budgetary constraints of the agencies. These are possible options in developing further workplace flexibility:
- purchase leave, voluntary reduced work time. Employees work full-time or part-time at proportionately reduced
pay to self-fund additional leave. The income earned is averaged and paid over the full period of work and leave;
compressed working week or fortnight. Employees work increased hours each day in exchange for a four-day week
or nine-day fortnight on a regular basis;
keep-in-touch schemes. These are designed to enable employees on long leave to keep up-to-date with workplace developments;
preferred rostering. In this initiative currently being used by the Western Australian Health Department, employees
provide a list of preferred shifts and, where possible, these preferences are accommodated;
health and wellbeing programs. These can include the provision of a gym in the workplace or subsidised gym
membership;
issues related to the workplace such as leave entitlements and options on returning to work;
family carer’s room. Establishing a family carer’s room in the workplace would enable employees to continue to
work while minding a child or family member when other carer arrangements break down;
facilities for nursing mothers. A carers’ room could be used for a nursing mother;
child care referral services can range from providing details of child-care services close to the workplace, to
reserving places at local child-care or family day-care centres at a negotiated fee payable by employees;
before and after-school care and school holiday programs. Reserving places at local community facilities for
school age children of employees, with fees payable by employees;
seminars and workshops. Many employers organise seminars that help employees develop skills and understanding
in balancing their work and life, such as time management and investment and retirement planning;
counselling. The use of employee assistance schemes needs to be further publicised;
annualised hours. Flexibility in working the annual quantum of hours, working longer hours in busy times, with time
off work in quieter times or school holidays. This is also known as ‘banked’ time in some organisations;
half-pay recreation leave. Currently maternity leave, long-service leave and sick leave can be accessed at half pay;
staggered retirement allows employees approaching retirement to gradually move from full-time employment into retirement;
floating cultural holiday. Many of the traditional public holidays in Australia are based on Christian religious
observances. A floating cultural holiday allows employees preferential leave on the day which is of cultural
or religious significance to them; and
volunteer Day. Increasingly, organisations are allowing a day’s paid leave a year to undertake volunteer or
charity work.
Fifth, we will be promoting work-life balance. We will be articulating the issues publicly – for example, through this statement - and promoting the issues throughout the agencies. A one-off event to promote work-life balance was held last Thursday in the form of a day-long conference. The conference featured a range of experts in the field including national award winners for best practice organisations, mature aged work force specialists and a consultant who delivered workshops on introducing work-life balance initiatives.
The benefits to developing sensible work-life balance working arrangements are significant: increased stability to attract and retain skilled employees; improved productivity and reduced staff turnover; increased return rate of female employees from maternity leave; reduced recruitment and training costs and increased return on training; reduced absenteeism, lateness and stress in the workplace; improved employee morale and commitment; improved occupational health and safety; reduced worker’s compensation accidents and lost time injuries; increased flexibility in management practices; and increased flexibility to meet varying workload demands.
Mr Acting Deputy Speaker, the government is committed to being a model employer. We do value the public sector. We recognise that the public sector has worked hand in hand with industry in driving historic economic development of the Territory and still plays that role today. This government believes its incumbent on us to be responsive to the needs of public sector workers. Increasingly articulated is the need for workplace flexibility. The policy detailed today will be implemented in a sensible and considered way and I am hopeful that these innovations will see a better, more responsive workplace for the Territory’s public service employees.
Madam Speaker, I move that the Assembly take note of the statement.
Dr LIM (Greatorex): Mr Acting Deputy Speaker, if I were a public servant listening to this debate in the offices across the public service, I would be very pleased with the way this government has come along and said: ‘We are there supporting the public service. We are there to do as much as we can for them.’ Don’t get me wrong; I support the initiatives that the minister has outlined as to what he thinks the government should do for the public service.
Ms Martin: Why don’t you say so rather than being begrudging?
Dr LIM: Taking on the interjection by the Chief Minister, I am not begrudging at all to the public servants who deserve every bit of support that this government can give. But, do you know something? Public servants really have been very angry for the last three years. I wonder if the Chief Minister remembers this. Does she remember this: the thing that she did three years ago before she was elected? She promised the public servants no sackings. Your jobs are secure. No public sector job would be lost. Immediately after she got in, 1500 jobs disappeared. Over the last three years, what has happened? She has had a fist around the public service throat. For three years she has strangled them. Suddenly she has become the best friend of the public service and that is the problem I have with this government.
The Chief Minister and Minister for Employment, Educating and Training say: ‘Hey! We have such a beautiful initiative for the public service’. Remember this document, minister? You may not have known of its existence. It is in the bibliography of your booklet, by the way, and is called Flexible Work Practices. This document was published in 1997. I quote from the introduction:
- An important factor in our success in managing change will be the balance that we achieve between our work
commitments and our personal life.
It goes to say that employees raised the issue of flexible work practices, in particular what is available and how to access them. That was written by David Hawkes back in 1997. Obviously the plans, the initiatives, have already been in place. The minister, in fact, drew attention to them in his speech and I will come to them in a little while.
We have many important issues to discuss: the economy of the Territory, tourism that has been poorly let down by the Minister for Tourism, the Chief Minister, we have nuclear waste transport; it was talked about all day today, but when it comes to debating it, you decide to give it a miss and come up with this instead. You have to ask the question: why is the government doing this? Is it preparing itself for an election and now trying to court the public service?
The minister has come up with the statement, saying that he is committed to the development of a responsive, flexible public sector that provides excellent service to the people of the Territory. No one can disagree with that; we want a balanced lifestyle, a lifestyle that makes work enjoyable so you can go to work and have time for family. At the end of the day, it is family that matters more than anything else and if we have a good, balanced life, obviously that is going to work.
That was similarly stated back in 1997. For the benefit of members, I will read a couple of paragraphs from David Hawkes’ document Flexible Work Practices. He asked:
- What are flexible work practices? Flexible work practices are employment arrangements which aim to achieve
the best possible match between the business interests of employers and the personal/professional interests of
individual employees.
Who benefits from flexible work practices? Where flexible arrangements are well planned and effectively
managed, employers can benefit from improved business performance and customer service, and employees
can improve the balance they need to achieve between and personal commitment.
He then lists four benefits for employees and the employer. Obviously, a balance between work and lifestyle is very important. We all live in the Territory because of the lifestyle. If work suddenly takes over or consumes most of the day, what is the value of living in the Territory? We may as well be locked up in an office in the middle of Sydney.
While there are shifts in the social fabric of Territory society, the aging population is really not significant at this point of time. Obviously, over time as the population ages, being able to split time so that you are not working full-time each week will be a consideration.
The minister, in stating his various points, only referred to this document, published by the CLP back in 1997, was a meagre 10 words:
- We will consolidate currently available work-life balance options.
Whoever wrote the speech obviously did not have time to write an original speech because it was not quite lifted from that document, but many things were quoted. Page 12 of the minister’s speech referred to flexible working hours. If you go to page 7 of Flexible Work Practices, it is headed ‘Flexible Working Hours’. From Flexible Work Practices, I quote:
- This allows more flexibility in attendance patterns by extending provisions for flex time through, for example,
shortened core time, expanded band width, increasing the number of hours which can be accrued, the number
of flex days available, fewer days and more hours per day.
The minister said in relation to flexible working hours:
- Flexible working hours enable employees to have greater flexibility in their attendance patterns by varying
start and finish times, length of breaks and length of the working day.
It means very much the same thing, doesn’t it? The minister went on to talk about home-based work. Again, more paraphrasing of this document, and he went on from there.
I wish there was more on which the minister could elaborate rather than repeating what has already been said. Very little that is new has come out of it. The one thing that I found a little bit hard to accept was step four, piloting a new approach. If you look at this the booklet that he referred to, Work-life Balance in the Northern Territory Public Service, on page 15, it gives the various objectives, one to six, with some time lines. When you study those objectives in detail, looking at the actions, performance indicators, responsibility and time frame, while the time frame extends from November 2004 to February 2006, the actual outcomes of those objectives are very much paper-oriented. Even the performance indicators that are listed in those tables are all desktop models of what is likely to happen if a particular program is introduced. Nothing is there to say that people will be taking part in programs.
Is that just because of timing, or is that a big con by this government of the public service to try and woo them back, to try and show that, over the last three years, that the hardship that they have gone through will now be rewarded by a government that is going to do something for them in this autumn of their term? But, then again, just like this promise that the Chief Minister gave before the last election, then turning around immediately after gaining government and sacking public servants, is this going to happen again? Make the promise now just before the next general election, and immediately after the election is over, everything disappears off the table.
The minister said the government is committed to being a model employer. A model employer, you would think, would be fair, would trust public servants to give fearless, honest advice. However, the public servants to whom I speak, who are my friends, say they have an atmosphere and environment of fear. There is a cultural fear in the public service. They are terrified to speak out because of the punitive actions that may be taken on them. Who has politicised the public service? Do not tell me that you have not. This government has politicised the public service. Talk to many public servants out there and they will say it has happened like it has never ever happened before.
At least the CLP can stand proud and say we were ethical about it, we did not politicise the public service, not like you, not like the Labor Party has.
Members interjecting.
Dr LIM: When the minister then said this policy had he detailed today will be implemented in a sensible and considered way. You have to think those are weasel words: it is going to be implemented in a sensible and considered way. In other words: ‘Hey, when we get back in to government next time around, we are going to be slow about it, we are going to be very considered about it, we are going to make sure there is enough money there to do everything’ and then if it does not happen, ‘When we considered the issues, we considered it is not worthy so it will not be supported’.
That is the problem. While the sentiments in the booklet are something that I support, and if I were a public servant, I would dearly love it. What I fear is the commitment of this government to follow through on it. That is the problem. I am not certain that the government will follow through on it. It is too glossy. There is no money put aside. There are no resources to make sure that this program will take place. If there is no money put aside for it, irrespective of the time lines, which at the moment give no indication of what real outcomes we are gong to have apart from a few people, pilot teams, who sit at desks and manipulate the processes to try to achieve outcomes on paper. That is not good enough. The public service needs more than that; they need your support.
I believe that under the flexible working practices document, several things have been taken up. We know that public servants have taken up flexible working times. They are able to work extra hours through the day and then take some time off through the week. They have attempted to job share and that has been one particular section that has not been well used in my opinion. I know of many nurses in Alice Springs who would love to job share in the Alice Springs Hospital and they have been denied that over the last three years. One of the reasons why we do not have enough staff is because many of the nurses living in Alice Springs have not been able to job share at the hospital. If they could, I am sure the hospital would be able to get itself better staffed.
Career break schemes have been on line for a long time. People can take extended leave or leave without pay to do whatever they have to do in their own lives. Those are the things that have already been taken up.
Home-based work or telecommuting has largely not been taken up. We still have to go through a bit of culture change to get ourselves thinking that we can work independently and efficiently at home. For some parents who choose to be at home to care for the family, perhaps this will be a good thing.
What this is all about at the end of the day is whether you can trust this government to fulfil the promise contained in this booklet. That is something that I cannot trust. I do not believe that the actions of the government in the last three years give me any confidence that they will follow through. When you have a document signed by the Chief Minister, when she was Leader of the Opposition, saying: ‘When I get in, there will be no job losses’ and then it happens. What is going to happen with this one?
Morale in the public service is not particularly high and the Chief Minister would know that. Now we are in election mode, they say: ‘Let us do something to sweeten up the public servants’. I have to view that very cynically and say: ‘This is the way they do it’.
In closing, I want to draw attention to the closing paragraph of the minister’s statement where he said:
- The policy detailed today will be implemented in a sensible and considered way.
which proves that much of the document is rhetoric and will not see the light of day. If I were in the public service, while I am very keen to see this happening. I would want a minister to sign, seal and deliver it before the next election. If that is the case, obviously I would have confidence because it has been delivered. However, until the minister does that, I am particularly concerned that nothing much will come of it. Minister, you have to convince more than just me or your colleagues in this matter.
Ms MARTIN (Chief Minister): Mr Acting Deputy Speaker, I would like to be able to say that I welcome the Deputy Opposition Leader’s contribution to this debate. However, it was negative, it was …
Mr Stirling: Nonsensical.
Ms MARTIN: Nonsensical is a good word. It was conspiratorial and wrong in its facts. Fifteen hundred cut out of the public sector? From where does he get his numbers? We now have a larger public sector than when we came to office. How can we have cut 1500 out of the public sector? We have increased key areas. We are increasing police numbers, nurse numbers, teacher numbers and child protection workers. I have seen my own department grow significantly because now we run a whole-of-government approach. We have seen the public sector grow strategically. I can only thank our public servants for the work they do and apologise now to those public servants in Justice and in Parliamentary Counsel for the offence they have had to put up with this afternoon. They should not have to put up with that. We respect our public servants. To hear the ridiculous words of the member for Greatorex saying we had politicised the public service, as compared with the Country Liberal Party after 27 years who never politicised the public service only shows that the grasp of reality of the member for Greatorex seems to have abandoned him all together.
This is an important statement. To say it is politically motivated is simply an absurdity. It is a good statement about an important issue for a very significant proportion of our work force. It would have been nice to think that the member for Greatorex read the statement and responded in a sensible and, one would even hope, intelligent way.
The issue of work-life balance and access to flexible, family-friendly workplaces has emerged as one of the greatest challenges for workplaces in the new millennium. In Australia, all tiers of government and many private sector companies have recognised the benefits of work-life balance initiatives to the community and the economy.
My government is no exception, and acknowledges that managing the balance between work, family and community life is an issue of concern for many Territorians. We are working to enable employees to achieve a better balance between their work and personal lives. In a recent survey conducted by the Office of the Commissioner for Public Employment, approximately 30% of our public service employees reported going home feeling stressed, while nearly a quarter said that work commitments often or always prevented them from spending a reasonable amount of time with family and friends. A quarter also stated that they took work home. Over 60% of respondents said they regularly worked outside of normal hours and 90% said that flexible hours are important when planning for long-term career goals.
The issue of work-life balance is particularly pertinent for women. All employees have commitments outside the workplace, but it is women who undertake the majority of unpaid domestic, caring and volunteer work in the Territory. It is mostly women who are affected disproportionately by the need for a harmony between the public and domestic spheres of their lives. In numerous surveys conducted by the Office of Women’s Policy, women have consistently identified that creating balance in their lives and being supported by the workplace in their roles as parents, partners, workers, carers and active community members is of increasing importance. There is little doubt that women now live in a far more complex work and family environment where needs such as job satisfaction and a fulfilling family life are in constant competition. So what has changed and how has it changed?
There has been a significant change in the typical Australian working household. Nationally, women have increased their work force participation by almost 20% since 1966. The Territory has one of the highest female work force participation rates, with 68% of working age females in the labour force compared with 57% nationally.
Women are also more likely to be working full-time in the Territory; that is 64%, compared nationally with 55%. Between 1991 and 2001, the number of Australian women in the work force with children under the age of five increased by almost 5% to 49%. Again, in the Territory, the proportion of women working who have young children is higher than the national figure and is 58%. In addition, in the Territory, both parents are employed in 65% of families with children. Child care is a prerequisite for any parent to be able to participate equitably in the work force.
Women are participating in the work force at greater rates than ever before, yet men’s domestic sphere roles have not changed significantly. Child care remains predominantly the responsibility of women and this has significant implications for their social and economic status. Women are being forced to choose to either provide care under the stressful conditions of bearing a dual role, or give up paid employment at an economic and social cost to themselves and their families. This inequitable division of labour also results in many women who choose to continue to work doing so on a part-time or casual basis, leading to insecurity, low pay and little on-the-job training. Women may also have limited opportunities to apply for senior positions owing to job requirements including overtime and travel.
This combination of factors leads to women with a reduced ability to remain in the work force or to be competitive in job advancement. Many women are therefore choosing to delay having a family, reducing the number of children they have, or choosing to remain childless. The resulting lower birth rates will eventually diminish the number of new entrants into work force.
At the same time, people are living longer. Flexible work practices are needed to attract and retain older employees, particularly women who may also have the responsibility of family caring.
The issue of work-life balance also has implications for the employer. The President of the Territory’s Chamber of Commerce and Industry recently stated that:
- It is becoming more difficult to attract and retain staff. Salary now is just not enough.
The reality, Mr Acting Deputy Speaker, is the new generation of workers are seeking employment opportunities that offer them a life outside work. A lack of work-life balance can also lead to greater expense to companies and agencies owing to loss of productivity, high staff turnover, loss of knowledge and expertise and unnecessary administrative costs.
Increased work-life balance has great benefits for the economy: flexible working hours, part-time work, home-based work, job sharing, time off in lieu, and career breaks are all options that will facilitate employees joining and remaining in the work force.
What initiatives has my government undertaken to address this important issue? The concept of work-life balance recognises that all employees have commitments outside of the workplace that impact on their working lives. For the NTPS, this means adopting a broad range of policies and practices that make agencies more responsive to the needs of its employees, making it easier to manage competing work and family or community commitments.
Nationally, employment arrangements and conditions supporting women’s participating and progression in the paid work force are still quite limited and fragmented. Some enterprise agreements have a non-statutory, family-friendly employment condition. Others have some flexible work arrangements in an enterprise agreement. Many workplaces do provide family-friendly conditions in policies rather than formal agreements, and access to them is often discretionary.
In the Territory, NTPS employment conditions already allow for a wide range of flexible working options, including generous annual leave entitlements, flexible hours and sick leave, which can be accessed to care for dependants. Currently, an exciting range of flexible work practices are under consideration in the next enterprise agreement. Paid maternity leave, for example, is an important work-life balance issue for women. Women lose opportunities to gain on-the-job training, promotion and experience largely because of absences from paid work owing to child bearing and domestic responsibilities. While unpaid maternity leave has assisted many women in returning to employment, the low levels of paid maternity and parental leave still affect the duration of absence and ease of women’s re-entry to the work force.
My government is very proud of the fact that it has increased the amount of paid maternity leave in the NTPS to 14 weeks and, in that, we led the country. The Territory has the longest average hours of attendance at child care centres, occasional care and vocational care service, and this is due, in part, to high full-time employment levels in the Territory relative to other jurisdictions.
Although responsibility for child care is across all levels of government in Australia, my government is largely responsible for regulation in relation to child care policies, procedures, facilities, staffing and licensing. By comparison with other states, the NT continues to maintain relative affordability for centre-based child care services across all income brackets. This is, in part, due to payment of operational subsidies. My government has increased the Territory subsidy for each child. We have also provided funding to support the development of a Child and Family Precinct in Katherine and established a Community Liaison Unit to identify community needs. Additionally, we have developed a work force strategy to assist the training and development of early childhood staff so that quality child care is available.
In recognition of the importance of this subject to the private and public sectors last week, the Office of the Commissioner for Public Employment and the Territory Chamber of Commerce co-hosted a conference examining a variety of practical issues surrounding the topic of work-life balance. At the conference, our Commissioner for Public Employment, John Kirwan, launched Managing Work-Life Balance in the Northern Territory Public Service, a policy and implementation plan as outlined by the minister in his speech, which will result in agency action plans for work-life balance, resulting in a better public service.
The Policy and Implementation Plan will first be piloted across two agencies, including my own department. In conjunction with the conference, the Commissioner’s Awards for Equity and Diversity featured a commitment to work-life balance as a special category award. Eight nominations were received from agencies throughout the Territory public service, and initiatives range from flexible work arrangements such as job-sharing to a return-to-work program and career self-management.
I am pleased to acknowledge the Shepherdson College Community Education Centre as the winner with their initiative Creating a Flexible, Supportive, Successful Workplace. From 2001, the college has undertaken a series of initiatives to improve outcomes. The most successful of these have been the strategies to attract, recruit and retain qualified and motivated staff. The college has increased its component of indigenous and male staff in line with both local community concerns and national issues in education. The provision of flexible work options, including work from home, part-time work, support for specific education needs of all staff, and support for health needs have contributed to substantially reduce staff turnover, which has resulted in higher enrolment, attendance and improved student outcomes. The work-life balance outcomes demonstrated by this initiative are far reaching and cover non-traditional working arrangements such as working from home and child-care assistance as well as partnership arrangements with the community to improve outcomes for both indigenous and non-indigenous employees.
I am delighted that my government is acting to create family-friendly workplaces that will benefit both men and women, make the Northern Territory government an employer of choice and act as a showcase of how effective and successful workplaces should operate in changing our environment. I congratulate the Minister for Employment, Education and Training on this terrific initiative.
Mr WOOD (Nelson): Mr Acting Deputy Speaker, I find it a very interesting statement, especially the opening remarks made by a Labor minister. The minister comes across with an opening statement that the concept of work-life balance recognises employment commitments that may relate to the family, education or to general health and wellbeing. I would have thought that what we are talking about today should have always been part of Labor Party policy, not something new. In fact, is it not the case that eight hours work, eight hours recreation and eight hours rest are very fundamental to the family and general wellbeing?
Mr Stirling: Do not educate me on Labor history.
Mr WOOD: It is only a short history lesson. Wasn’t this the very core of Labor policy?
Mr Stirling: I wrote more than you ever read.
Mr WOOD: Thank you, minister. Does this statement today reflect the possibility that Labor and unions have lost sight of those core principles since those days, got too mixed up in political and academic rhetoric and forgotten the families and their workers?
You would think that an employer of any political persuasion who cared for his workers and wanted to make sure he or she had loyal and happy workers would have naturally tried to include flexibility for those workers. We always need to realise that, even in our jobs as politicians, we need to look after the workers on whom we depend so much to help us in our political life. I would be the first to say that I am not always as responsible and mindful of the needs of my workers as perhaps I should be, and have to cover my failings with extra lunches to thank them for their patience and hard work.
Whilst I support looking after workers, this has to be balanced, especially within the public service, in making sure we are providing an adequate service to the public. So while the government may offer all these flexibilities in its balanced work and life program, who is making sure that consistent service is being provided by the public servants? If I ring up at lunchtime or at 4 pm, will I have someone to speak to or will they say that this week the person is working from home or having a career break, or involved in the keep-in-touch scheme, or having a cultural floating holiday? In other words, is the balance of work and life balanced too far one way so that the public service that people expect is lessened by this new approach? Will recorded messages now become the normal response when you ring up?
Do we need all these options in the first place, or could not the existing ones already in place, such as flexitime, be sufficient or at least broadened? Could, for instance, a supervisor be given the ability to make decisions based on circumstances at the time, or is it the way of the public service that everything has to be in little neat partitions or classifications? Will we need a new Department of Balance? I can see this as a title for a new Monty Python movie. Will we then have a Minister for Silly Walks, too? Don’t we have to be careful that we do not end up losing the plot and making things over-complicated? For instance, if public servants have the right to have a floating cultural holiday, will they be working on picnic day when no-one else is at work? How could that work?
Minister, whilst I agree with the sentiments, the object should be to keep things simple. This statement seems to be making a bigger bureaucracy, more issues to put on the table at enterprise bargaining, a more complex work environment, and more management issues. Yes, we have to look after our workers, but provision of service is still important. Flexibility is good, but could you build an LNG plant if workers in the private industry had all these perks? I doubt it. Perhaps we should remember those who work in private industry are the ones who keep the economy going.
Yes, we need to look after families and workers. Perhaps we should be looking at those who are forced by the contract system to work 60 to 80 hours even though they might, in theory, be meant to work 40 hours or less. They are the ones who need flexibility because it is the contract system of employment that causes stress. They need to have a balanced life, but are forced to be productive by working long hours. Their contracts might only last three or four years and they have the fear of losing their jobs. They have difficulty securing a mortgage for a house, and these are the people who need some relief.
It is a nice idea, but it is too complex. Let us keep it simple: look after the workers but do not drown them in complexity. Use common sense managers rather than more forms to fill in. Yes, we need to balance work, life and families; it is important. However, let us keep a balanced approach.
Ms LAWRIE (Karama): Mr Acting Deputy Speaker, this evening I add my support and congratulations to the Minister for Employment, Education and Training for delivering this groundbreaking ministerial statement on balancing work and life in our Territory public sector.
It has certainly been Labor history to make progress in the conditions of people’s working lives. In the new millennium, it is described, in a sense, in the balance of work-life. The conference on work-life balance last week was quite successful and much lauded.
It shows that this government takes leadership on issues that are central to many working people, whether they have family commitments, carer or elderly commitments, or they are active participants in the broader community life, there are always a lot of factors that put stress on people’s ability to work the hours. Increasingly, since the 1980s, we have seen the expectation in growth of working hours throughout the country. We used to know something called the 38-hour week. It is very hard to find anyone in the private or public sectors now who is working a 38-hour week.
It is good to see governments grappling with trying to recognise the need to reduce long working hours so that people have that much healthier balance with their life in having time to spend in the community and with their families, and to get the real sustenance we all derive from a well-balanced life. It seems somewhat hypocritical, however, for politicians to be debating work life balance when often our lives fail that test indeed.
I am a Generation X-er to whom the minister referred. I grew up in an era in which I do not accept that you have to commit your entire life to work. I have seen that in previous generations. I have seen the absolute commitment to work, but I do not think wanting to find a balance means that you are less committed to work; it just means that you are, perhaps, smarter in how you approach the issues of employment and your broader responsibilities in life outside of the workplace.
I had the experience in the mid-1980s of watching industries reform hours of work. I was part of a restructuring program that introduced flexible working hours into the private sector. The member for Nelson should have a look at some of the advances in awards in the private sector because there are quite a lot of flexible working hours that were introduced throughout Australia’s private sector in the 1980s.
Indeed, I took a case before the Australian Industrial Relations Commission on a flexible hours test within an award to introduce four-day rosters in a particular workplace and happened to win that case. It was argued, soundly, that some workplaces can lend themselves to shift work that reduces their working days from five down to four. Indeed, we were able to prove through the good, hard work of the workers in that workplace that they could be just as productive, just as effective and deliver a quality product in that private enterprise in a four-day working week.
The employers fought that every step of the way. Interestingly enough, elsewhere in that workplace they had introduced a four-day working week for a different section of employees. They just could not bring themselves to see an initiative taken from the work floor in terms of a four-day working week. Employees took that initiative and I took that case on for them. The commission, in its independence, found in favour of the employees and they have a four-day working week. It has been introduced without any drama, and certainly made the three days off far more of a balance in people’s lives.
In a four-day working week, you push your working hours to a 10-hour shift, which is still just under the 12 hour maximum recognised in all work studies as being the maximum ideal. Anyone who has had a look at employment studies knows that if you work beyond 12 hours, you are really completely ineffective and damaging your health. So pushing up to a 10-hour working day, whilst it is one of those long days, the compensation of an additional day off a week, a third day off, is very attractive to many people. It means they can have a significant outside-of-work life. The Generation X of which I am part is more and more attracted to this type of flexible working hours scenario, and I congratulate the minister for indicating that the public sector will pilot many of these initiatives, will have a look at how flexible working hours can be enhanced.
I facilitated a scenario in the public sector recently whereby a single parent with five children wanted to reduce their working hours so that they could be there for the children after school. There was a 20 year commitment in the public service in a particular role that would have allowed flexibility for a reduction in work hours to that point. At the middle management level, there was a desire to knock the request back, and I have to say, to their credit, the CEO on the advice of OCPE, I believe, recognised that it was a very reasonable request to work from 8.30 am to 2.30 pm and the reduction in hours, flexible working hours, was introduced for the public service employee.
I urge managers of divisions and units within the public service to embrace the innovation that exists within workplaces for flexibility within work hours and the recognition that you gain a great deal in productivity and loyalty from an employee who has had their circumstances taken into account. When they have put in many years of work and commitment to an enterprise, surely it is a reasonable exchange of loyalty to recognise that people’s lives often move in peaks and troughs of varying ability to perform in hours at work. There should be recognition that you take the good times with the bad with your employees. If you give the flexibility of accommodating their needs during their bad times, you will find that in good times, they well and truly respond and, in turn, give more back.
Productivity does not need to drop at all with the introduction of a range of initiatives. Indeed, many international studies have shown that productivity can be increased by flexibilities within the workplace where you are treating your workers with dignity that, often, a range of accommodations can provide.
I look forward to the public service grappling with the issues of work-based child care, for example. I have participated in a few feasibility studies, again in the private sector, that look at workplaces with 800 and above employees with work-based child care. Whilst it was an issue that was around in the early 1990s, it seems to be an issue that has slipped off the national work agenda somewhat. I encourage the public service to look at that as part of a promotion of effectual and family-friendly workplaces.
It is, as you heard the Chief Minister say, very much a reality in the Territory that we have a lot of people confronting issues around child care. The average age of a Territorian is 28 years, which falls very much in the breeding years, so whether they are a single parent or a dual parent, you often have the issues of child care as a barrier to employment progression. If you can make child care accessible, and accessibility comes in the sense of a work-based child care system, you are opening up a very attractive working environment. You will find many people attracted to applying for work in that area where the advantage of work-based child care exists.
I know, for example, the Defence forces are very good with issues of work-based child care. Large Defence institutions throughout Australia provide on-site child care and neighbourhood houses that have programs and activities for after school care. That is seen very much as a plus for Defence families.
I welcome the minister’s statement that we will support employees in balancing their work and life commitments. A background in caring makes me attuned to the needs of a whole range of people in our community who are caring for relatives or friends who either have an illness or who are aged and frail. These carers often struggle economically because there are far too many barriers existing to full-time employment and very few employers are willing to embrace the flexible issues of job sharing or part- time work.
I encourage the government and our public service to show leadership in providing these flexibilities. Job sharing does work. It has been proven to work, just as part-time employment is a very effective way of providing high productivity during peak workplace periods. We all know that there are certain tasks and certain times of the day when you could do with another set of hands on deck, so to speak, and part-time work provides for this. It is a very economical option for the employer. I encourage the government to identify the role we can play in being far more flexible in how we create employment positions within the public service.
I congratulated the minister previously in the House for providing the opportunity for our over 65s to continue in the public service. These are people with phenomenal skills and they have a great deal to add to our employment picture. They are often the leaders, teachers and trainers in our workplaces. To have been forcing them out of the public service in the past was erroneous. It is terrific now that under the changes in public service employment conditions, they can stay on if they wish. As we know, Australians, through our healthy lifestyle, are living longer and wanting to participate in the work force longer. Where that is a person’s wish and we have a government that embraces that, it is a positive move.
I congratulate the minister on the six-point implementation plan that will set many of these objectives into action. If you simply have a policy that does not have any implementation attached to it, you will have the status quo prevail. The good news in this statement is that there is an implementation plan. The Chief Minister did say two agencies will be piloting the introduction of the work-life balance policy.
It will give everyone the opportunity to have a good look at what aspects of it are feasible and what aspects of it could be refined, and then what should expand through the public service. I congratulate the CEOs of the departments who have put their hand up to pilot the work-life balance policy. I believe that they will become lead agencies in our public service.
I would like to see more opportunity for home-based work within the public service. We have the technology these days to allow for more employees to be outside of the central workplace undertaking work on a home-based scenario, whether that is part-time home based and part-time in the workplace, but those flexibilities are highly useful to allow people to meet various commitments. There is no reason why, for example, in the industry I came from as a journalist, I could not create and file a lot of my work from home. As a reporter, I could have worked home-based if the policy had existed within the system. For the sub-editing aspects of my work, I would had to have been in the workplace, but I use that as an example that there are industries and jobs that lend themselves to being home-based by their nature, whereas we know that for some, such as nursing, you have to be at the coalface and in the workplace.
Career breaks is an essential issue, particularly for women. As we know, women move in and out of their career as a result of child birth. It has been a real block in the past for a lot of women who have had to leave their career, often at a critical point, and take time out. Looking at the opportunity to improve career breaks so that we are removing disadvantages will be welcomed by many women.
I have a great deal of respect for our government’s initiative for paid maternity leave of 14 weeks. However, I encourage the agencies to have a look at the opportunity for that to be described as family leave. Families are far more flexible these days, and baby rearing is not just confined to women anymore. We have many examples in our society where the fathers are the ones who opt to stay at home and rear the baby. I am looking forward to some good assessment of how family leave could work within the public service initiatives that we hope to see flow from this new policy.
Further, I congratulate the minister on looking at a whole range of work-life balance options that include voluntary reduced work time, compressed working week, preferred rostering, which the minister said is being used by the Western Australian Health Department, and wouldn’t that be a welcome initiative in quite a few of our rostered workplaces such as police and the health areas? I have worked shift work and I have had to arrange rosters and I know how incredibly difficult it can be at times to create rosters that meet your employees’ needs as well as your workplace output needs. Interestingly enough, if you go to the extent of consultation that often requires just a little bit of extra effort, you have far better rosters and you have far happier workers and therefore you get a reduction in turnover of worker at that workplace.
In respect of encouraging a family carer’s room, you have heard me talk in the past about looking at the issues of child minding within the workplace, and there are a range of steps that can be taken apart from the family carer’s room. Obviously, facilities for nursing mothers and looking at work-based child care feasibility, particularly in our very large public service office blocks. When new office blocks are being built, why aren’t developers looking at the opportunity to incorporate into a section of a floor work-based child care? I can assure you that people would be snapping up that opportunity. I have seen it happen elsewhere in Australia.
Looking at the various different holidays and day options, volunteer days is really recognising that we are a diverse society. We have diverse needs and being able to incorporate that into a workplace is a wonderful initiative, and I congratulate the minister, OCPE and the departments for embracing the opportunity to see how that can fit into our public service.
The Territory is a wonderful place to live. Many of us are here for lifestyle. A lot of my constituents have boats and love to go fishing, and having the opportunity to marry your work commitments with your enjoyment of the Territory’s great lifestyle is a terrific initiative. It will go a long way to retaining our public servants and to encouraging more people to come and live and settle in the Territory. The better policies we have implemented within our public sector, and the leadership that this statement shows that we are embarking upon, will do a great deal to enhance our productivity and our attractiveness to many employees throughout Australia.
At the end of the day, many people are realising that money does not compensate for the loss of your ability to be an active member of a family or community. I see many volunteers in my electorate who need the opportunity to have time off from work, whether it is to take the NT school hockey side on a trip to Canberra or to arrange a fund raising event, they could not do that in a restrictive work environment.
I encourage the minister in the good work that he is doing to implement a working environment in our public service that means that Territorians can participate far more in the broader rich, diverse community life that we enjoy here.
Ms CARTER (Port Darwin): Madam Speaker, what an interesting speech we have had from the minister here this evening. It is entitled Balancing Work and Life in the Territory Public Service.
Working conditions in the Northern Territory public service are very important. However, this statement is surprising in number of ways. First, it is incredibly short, given all the problems that we face in the Northern Territory public service. Then, even more surprising is the fact that it is quite blatantly a rehash of the Flexible Work Practices program that was implemented by David Hawkes, the Commissioner for the Public Service, when he held that position in 1997. I know he introduced that because I was working in the public sector at the Work Health Authority. We were particularly interested in these workplace issues and I remember it very well.
I was very surprised last night to read this statement and realise what a substantial rehash it is from what was introduced here exactly seven years ago this October.
I welcome the statement because what it is really doing is that, after this Martin Labor government has been in for over three years, we all know that morale in many areas of the Northern Territory Public Service is grim; in nursing in particular. I know that because nurses tell me, and you know that, and particularly the Minister for Health knows it because they conduct exit interviews with staff, and staff tell their senior people how unhappy they are working in the Northern Territory public sector.
You have done this and I know why you have done it: to stick a bullet up certain managers and to get them to start thinking about the retention of staff. I do applaud that effort to get managers to think about putting in, as you say, a work-life balance.
All of the legislative abilities through the Public Sector Employment and Management Act of 1993 have been in place now for 11 years. The problem that we face at the moment is that there is no energy in the public service, particularly in management, to embrace the fact that they can offer flexible working conditions for their employees. As we have heard from a number of speakers tonight, that is particularly important for women, which of course reflects significantly on our ability to retain nurses.
There is poor morale. You know it; you cite it on page 3 of your document where there is a graph that represents the results of the survey that has recently been done in the Northern Territory Public Service. Of the respondents, 32% said that when they went home, they felt stressed. We are well aware of the fact that there are significant levels of stress in the Northern Territory Public Service.
Let us look at what is on offer. If you look at the old version, the 1997 or seven-year-old version, David Hawkes, who was the commissioner at that time said, and I quote:
An important factor in our success in managing change will be the balance that we achieve between our
work commitments and our personal life. This booklet provides information on flexible work practices
currently available in the Northern Territory Public Service.
What does the minister have to say in his introduction? Something pretty similar, and I quote:
- One of the major issues facing our work force today is a work-life balance.
Very similar statement, reflecting what is available to the public service at that point in time and it remains the same today.
One of the reasons I am highlighting these was very evident from the member for Karama because, once again, she said the word ‘congratulate’ about 10 times during her response to this statement. Congratulating the minister, and I am quoting her, ‘ground breaking’ innovations and initiatives and a new policy and this government takes leadership. Well, it is all old news, quite frankly, member for Karama. It has been around now for 11 years, the Public Sector Employment and Management Act, and the ability to do these things has been there for some time. Certainly, managers need to pick the ball up and get cracking on it.
If we look at the old version, the David Hawkes version of 1997, and look at the benefits of flexible working conditions, we see that the benefits for the employee are listed as: satisfaction from a balanced lifestyle, reduction of stress, retention of work skills, blah, blah, blah. For the employer: increased productivity, staff retention, reduction in staff absenteeism. If you go to the new version, today’s version, on page 6, there is a list that I have cross-checked and today’s statement repeated the same sort of things that were evident seven years ago in the David Hawkes version. There are many similarities in the two documents.
With regards to the flexible options available to staff, if we look at the old version, on page 3 it starts to go through these and, if you reflect on what the member for Karama has just told us, you will notice a startling resemblance to her new innovative ideas and initiatives to what was written about seven years ago. We have part-time employment, job sharing, a variable year work, career break schemes, short-term absences for family and community responsibilities, home-based work and flexible working hours. Goodness me! How new is that? How innovative is that? Not very at all. Good ideas, valuable ideas, things that should be done, but they are not brand new, so do not take credit for that.
With regards to the action, what sort of action should we take? If we go to what was available seven years ago, the NTPS, under the very capable leadership of David Hawkes, issued a series of information bulletins, and this is Bulletin No. 9 of 1997. In it, David Hawkes lays out all the options that I have already mentioned, and then he has a heading How to Manage: Management of Existing Arrangements. This is the action phase. He deals with the procedures for implementing this, how to have flexible work practices through the key elements of leadership. I will quote here:
- The CEO and senior management need to publicly and consistently endorse the development of new work
practices which will offer flexibility.
The next thing that has to happen is they need to collate employees’ opinions. It says they need to consult and communicate with all employees through, for example, focus groups, questionnaires, formal committees and informal staff meetings. Then they need to decide on suitable options and circulate the CEO’s decision to the rest of the department. There is the action plan that was attached to the 1997 version of today’s statement and booklet. Of course, on pages 6 and 7 of the new version, we have similar action from this minister. This is all seven years old and it is nothing new.
At page 23, if you are looking for something new, it is right at the back. It is the second last page entitled Options for the Future. This sounds pretty good. These options include: annualised hours where people can bank up time in order to get more flexible working hours; reimbursement of child care costs for work and travel outside normal hours; half-pay recreation leave; staggered retirement; floating cultural holidays; and a volunteer day for work with a charity. That sounds great, doesn’t it? Then you read the small print, which is not all that small because it heads it up and says:
- The inclusion of these options in this document should not be taken as an undertaking that any of these
options will be adopted within the Northern Territory Public Service.
Madam Speaker, as you can see, that is the escape clause and, by golly, it’s a whopper. This is the only new stuff in seven years that this government’s been able to come up with and there is a whopping great clause to let the NTPS and the minister off; you are not to really get your hopes up too high because we may not very well do any of these. There it sits, tucked at the very last page. That is disappointing.
There is nothing new, but I hope it sticks the proverbial rocket up certain people to get them thinking about the need for flexible working arrangements being offered because staff are crying out for this sort of thing.
The fact that we do not have flexible working arrangements in many nursing areas is causing problems, and I am going to talk about nurses in the 10 minutes I have left because they form the largest group of professionals within the Northern Territory Public Service. They are the biggest single group and they are very important.
Recruitment of nurses, for example, is incredibly important. As all members know, there is as national and international shortage of nurses, which means that we have to be smart and savvy and attractive to nurses from around this country and overseas. We have to market the Northern Territory as a place to which they want to come and work. One of the things nurses will be looking at is what sort of working arrangements there are in the Northern Territory.
When you talk about recruitment of Australian nurses, you must be very aware of things such as the average age of an Australian nurse. It is incredibly concerning to realise that the age of the average Australian nurse sits somewhere around 44 years. The problem is, of course, that with the aging of the nursing work force, there is not this wonderful group of young nurses in their 20s bounding into the hospitals to look after patients and earn a dollar.
Instead, there is a more mature group of nurses and one of the features of this group of nurses is that they have, generally speaking, significant family commitments. When they are looking for a job, they are looking for a job that provides them with a working life that allows them to provide care to their families as well as to the patients at work. This is why we need a work-life balance and flexibility. Once again, I congratulate the minister on the statement. It looks great. Let’s hope that in another 18 months, we can see that it is having an effect on the recruitment of nurses to the Northern Territory.
Recruitment is one thing, retention is another. It is the retention of nurses that is causing the biggest problem. They may come, but they do not stay. It is a huge disappointment. There is a range of reasons why nurses do not stay in the business in the NT and, Madam Speaker, with your support, I am going to touch on some of them, even though I will concede to those opposite that they do not fit neatly into the statement tonight, but it is an important issue and it is an opportunity for me to speak on them.
One of the first points is morale. If we have flexible working conditions with regards to hours, morale is helped some way. Unfortunately, morale is poor in a number of areas in nursing. We only have to back through the newspapers over the last six weeks to pick up some of these issues. Here we have a letter, written by name and address withheld, dated 4 September, and I will quote:
- Let me say first that the only thing royal about Royal Darwin Hospital is that it is a royal pain in the butt.
There are many disgruntled employees within the nursing medical field at RDH. If there were only one or
two unhappy employees, I would not be writing this letter, but their number is the majority. Staff retention is
appalling. The place is rife with nepotism and workplace bullying at every level, leaving staff morale at an all
time low. The staff give the highest level of care possible, considering the disheartening lack of support and,
at times, toxic treatment handed out to them from their employer and senior managers.
This person concludes with:
- I fear recrimination from senior management, which is why I have asked that my name and address
not be published.
A few days later, we get a response from Dennis Blackford, Branch Secretary of the Australian Nursing Federation NT Branch, and in his response, Dennis says:
- It is likely nurses will continue to be the victims of this unacceptable behaviour …
- … and vote with their feet, and leave an already under-resourced NT nursing work force.
That is the issue of bullying.
Occupational Health and Safety is another matter raised in this strategy, and particularly issues of being tired and making mistakes at work. In the last few weeks, we have learnt about a number of issues of violence against nurses in the NT. In the Northern Territory News, on 28 September, a couple of weeks ago, there was the very sad story about Margie McLean, who some of you may know, I certainly do know Margie, who is an amazingly dedicated, long-serving nurse, an inspirational person to know. The heading is ‘Drunk woman attacks remote area nurse’, and the comment from the paper is:
- One of the Territory’s longest serving bush nurses has been bashed by a patient at a remote community.
There are problems with safety in the remote areas. At Royal Darwin Hospital last weekend, on Sunday morning, we had an incident where a mentally-disturbed man tried to injure nurses with scissors. A friend sent me an e-mail, and naturally I removed the identity, that said:
- Having spoken with a few other long term nurses, I am hearing again and again that they are fed up with
complaints of verbal and threatened physical abuse going unheard. Talk of strike action, refusal to come to
work, stress leave, etcetera are rife until something is done. There are many husbands and partners who are
really concerned that their other halves are working in a community service health care role and their lives
(physical and mental) are being constantly put at risk.
So there we have a staff member at Royal Darwin Hospital’s Emergency Department expressing serious concern about the morale of staff with regards to Occupational Health and Safety at Royal Darwin Hospital at the moment.
Over-work is an issue, again, that you could read into this minister’s strategy. Unfortunately, due to the lack of staff in, I would argue, just about every nursing quarter of the Northern Territory at the moment, the chances of being able to implement some of these strategies are a bit slim. Classic examples at the moment of over-work have been Port Keats, or Wadeye as it is known, a large Aboriginal community, the sixth-largest in the Northern Territory, which had to close down its services a couple of weeks ago, except for emergency services, caused by a lack of staff. We have had Alice Springs Hospital, where we hear excuses like Rotavirus and pneumonia and things like that. I had a nurse ring me at 7.30 this morning from Alice Springs Hospital who told me that the rate of overtime is shocking, to use her word, and that beds have been cut due to a lack of nursing numbers. That is the stress caused by over work and difficulty, I would suggest, in rosters, given the amount of overwork that is having to be done. At Royal Darwin Hospital, overwork …
Ms CARNEY: Madam Speaker, I move that the member be granted an extension of time.
Motion agreed to.
Ms CARTER: Thank you, Madam Speaker and members; I shall not be long. There have been a couple of items in the paper with regard to overwork and lack of staff at Royal Darwin Hospital recently. One was on 23 September: ‘Tot gasps on as hospital calls fail’. These are calls to the emergency number late at night, and the end result is that no one can answer the phone. The other one is from 3 October and it says, ‘Nine hours to see doctor: RDH slammed’. Once again, the reason why it has taken so long for someone to see a doctor is invariably a lack of staff. That little kiddie had to wait nine hours and eventually was admitted to hospital, so it was definitely a sick child. These are illustrations of an under-resourcing of staff, staff are overworked and these are the outcomes.
With regard specifically to the minister’s booklet Work-Life Balance in the Northern Territory Public Service, there is a significant lack of flexibility in employment conditions offered to nurses. There is very little permanent part-time work available or job sharing. Classic examples of this are at the Palmerston and Casuarina Community Health Centres. As I mentioned before, the average age of a nurse is in their 40s. Many have children and need to perform duties as a mother and a carer, and they would desperately like to work part-time or to job share. Conversely, we have a significant shortage of nurses suitably qualified and experienced to work in these community health centres. The end result is lots and lots of vacant positions because the nurses do not want to work full-time and, yet, the managers insist that they do work full-time. I am personally aware of this, as I have heard it from staff.
I read from page 3 of the new booklet Work-Life Balance:
- Evidence suggests that the level of take-up of flexible working arrangements across the sector is low …
This is the Northern Territory public sector:
- The percentage of employees in part-time work in the NTPS, at 7.4% in 2003, is substantially lower than
any other public sector jurisdiction in Australia.
That is an indictment on this government because those numbers are so low. Yet nurses do want to work part-time and job share. They are living in the community, they want to work and we need them.
I encourage the minister to use this as I hope he will, and I am sure he will, to work with the managers in the Northern Territory Public Service. Please speak to the Minister for Health on this. Please tie a ribbon around one of these books and give it to him because the Health Department desperately needs it. The booklet addresses piloting in a couple of areas. Please pilot at one of the community health centres. Please let the nurses enjoy the flexibility that is offered and has been on offer in the Northern Territory for the last 11 years.
To conclude, Madam Speaker, and I quote from page 3 of the minister’s booklet:
- Benefits to the Northern Territory Public Service include increased ability to attract and retain skilled
employees, improved productivity, reduced staff turnover, an increased return rate of female employees
from maternity leave, reduced recruitment and training costs, reduced absenteeism, reduced stress in the
workplace, improved employee morale and commitment, and improved occupational health and safety.
Quite frankly, at the moment, in our dreams. It is over to you, minister, and I wish you and yours all the best.
Mr KIELY (Sanderson): Madam Speaker, I thank the minister for his timely statement. I will pick up from where the member for Port Darwin left off. The member for Port Darwin’s contribution showed us why we need this policy now. All the points she raised are addressed in this policy. She alluded to flexible working conditions introduced some seven years ago, which, as we kept on hearing from the opposition, were the David Hawkes’ flexible working conditions. It was not David Hawkes’ policy; it was NTPS policy. It was NTPS policy of that time, just as today we see work-life balance in the NTPS. These are two policies, one building upon the other, applicable to the NTPS.
If you do any research on this, pop in to the web site, type in work-life balance, and you will see something like 400 000 plus entries. Work-life balance is not some new product that has been dreamed up out of OCPE. Work-life balance has been going on for quite some time. There is a great body of evidence around the place that supports why we need it.
If we look at our own evidence at page 3, from which the member for Port Darwin just quoted. I put it to you that the policy from seven years ago did need revisiting, does need revisiting, and has been revisited by this government and the NTPS as it stands today. The take-up rate for certain areas of flexible working conditions has been low. We have to ask ourselves why. That is what this policy is all about: it is asking why and addressing the question. It gives an indication of why, on page 3 once again, and I do not know why the member for Port Darwin could not pick up on it: 32% come home feeling stressed; 40% have difficulty in finding time for themselves; 25% for whom working commitments prevent reasonable time; 27% take work home; for 44% workload is unpredictable. That is why we are here today debating this statement. Surveys have been done and we have found that the policy of seven years has not been picked up as we would like it to be. What are we supposed to do - just roll over? Or are we supposed to say ‘Let’s work on this thing. There are some good ideas in here and let’s get to it’?
The member for Port Darwin said there was a big out clause in fine print, but it is actually the lead on the page headed Options for the Future. Of course, the NTPS does not commit to them because they have to be tried. When I was involved in looking at work-life balance issues in the public sector, I always worked on the principle that they had to be cost-neutral.
Ms CARNEY: A point of order, Madam Speaker. I draw your attention to the state of the House.
Madam SPEAKER: There is no quorum. Ring the bells. There is a quorum. Continue, member for Sanderson.
Mr KIELY: I would like to thank the member for drawing that to our attention. Clearly, flexible work practices seem to be working in the House if we have to call a quorum. Perhaps, member for Karama, you were incorrect about politicians not be able to be flexible in their attendance.
Ms Lawrie: Correct, member for Sanderson.
Mr KIELY: Thank you.
Ms Carney: Have you finished?
Mr KIELY: Pardon?
Ms Carney: Have you finished with your banter?
Mr KIELY: No. I use banter; I do not use vindictiveness. I do not rip into the public service. I like working with the public service.
Madam Speaker, when I was tied up with work-life balance aspects in my role in the public sector, I always worked under the principle, with my executive team, that it was supposed to be cost neutral.
We heard the opposition spokesperson for employment, education and training, and I think he is also the opposition spokesman for the public sector, say: ‘You have not funded it. How is this going to be done?’ It demonstrated to me a great misunderstanding of what these policies are all about and how they work. I do not really think you fully understand …
Ms CARNEY: A point of order, Madam Speaker. I again draw attention to the state of the House.
Madam SPEAKER: There is no quorum. Ring the bells. Continue, member for Sanderson.
Mr KIELY: Just as I get into full slide, things like this happen.
Once again, I note the flexibility of this House in its approach to work, and the attention drawn to it. It is wonderful that we have flexible attendance patterns in this House. I think the opposition is more attuned to flexible working options than government, but that is just a casual observation.
The opposition spokesman on public sector employment does not know what he is talking about. He does not know what flexible work practices are about. He prattled on but did not have a clue. Flexible work practices have been working in the public sector for quite some time. It is the rate of pick up that this government wishes to address.
The member for Port Darwin said: ‘With this work-life balance, I hope it puts a rocket up certain people’. Let me say to members of the public sector: this policy is not about being punitive; it is not about putting a rocket up anyone. This work-life policy is all about making a better place to work. Small wonder the member for Port Darwin attracts all the disaffected people. Does she come to the minister and say: ‘We have these issues’? No! She lets it fester because it is in her own political interest. She does nothing to do to help these people she suggests come to her with these issues. I call on the member for Port Darwin that, when someone comes to her, to address the issues rather than letting them fester because they are issues that bring down morale in a workplace.
We also had the member for Nelson, and it was a dinosaur approach to productivity gains within the workplace, say if we bring in work-life balance, who will answer the phone at four o’clock? If I phone at lunchtime, will I be told that someone is at home because it is their day off? It doesn’t work like that. The whole idea is a reasonable and sensible approach to work-life balance, working with the supervisor. People have to negotiate with their colleagues in the workplace. One of the principles of an effective work-life balance program in the workplace is that the work has to be done. You don’t say: ‘Righto, you’re off. The work doesn’t get done’. The work has to be done. There are to be no productivity losses. Smart workplaces work together and ensure that the phones are answered at lunchtime, make sure that someone is in the public contact area at four o’clock. It was a rather dinosaur approach.
The member for Nelson gave the Deputy Chief Minister, who has a stronger grounding in the Labor history and values than the member for Nelson, a lecture on the history of the labour movement. I should inform the member for Nelson, because he did not pick up on it, that in 1972 or 1973, it was Gough Whitlam’s government that introduced flexitime to the Commonwealth Public Service, the first one to do it.
Member for Nelson, if you are going to give history lessons, let’s give it all away. Let’s have a look at how successive Labor governments have been working to improve the lot of workers.
Dr Burns: He means the DLP!
Mr KIELY: It was the Whitlam government that introduced maternity and paternity leave. It is this Territory Labor government that has introduced 14 weeks maternity leave. Labor governments get behind workers. Why do Labor governments do that? Because they are the leading employer in Australia and it is up to governments to lead the way on industrial reform. It is government where you can show that things work. That is what this government will be doing: leading private enterprise and showing them the way that things can be done.
I have worked in private enterprise, and they have their own policies. AMP had a great family-friendly policy in Melbourne. There is a host of others throughout the country, all the larger bureaucracies in the private system as well as smaller ones that use family-friendly or flexible work practices to get by because they know that to the bottom line, it makes a difference. They know that if they retain staff, they can make a better quid out of them.
They know, that if you introduce flexible work options, you have a happier, more productive work force, and it has been proven scientifically time and again that flexible work practices are the best way to go, rather than trying to say: ‘You be here at four o’clock; you answer that phone’. There is room within the public sector to introduce these different options.
On the matter of compressed hours, years ago, when I was working for Telecom, there was a nine day fortnight, an RDO, compressed working hours. That is what we had there. It is as old as …
Dr Burns: Telegraph boys.
Mr KIELY: Telegraph boys, just about. There is nothing new in that. I brought that practice with me when I came into the public sector. I said: ‘Righto, I will work compressed hours’, and I kept my RDO by working those hours.
Look at study leave. I have taken study leave before. That is a flexible working arrangement, and that kept me in the workplace. I was a public servant for something like 16 or 17 years in the federal and the NTPS, and I stayed there because of the flexible working conditions. I had a young family.
Dr Burns: And a sense of achievement for working in the public service.
Mr KIELY: It was. It was a sense of achievement for being there in an innovative workplace. I had a young family, with the wife as the primary carer, as is the case in today’s society. She had taken leave without pay, maternity leave. She is a nurse. For her to return to work, I was able to work compressed hours and knock off at two o’clock, come home, take up the care of the children while she went to work and worked a 10-hour shift. So I was working variable hours in the workplace, she was working compressed hours and getting something like 20 hours under her belt, and that was enough to get us over the line in times of economic strain we found ourselves in as a new young family. I have had first-hand experience with flexible working practices in that area. It is timely for us to be looking at it. Just think of the letters the member for Port Darwin was reading out. If ever there was a call that it is time for us to work with the NT public sector and look at reviewing our practices and working more on them, that was it.
Other practices the NTPS has include a carer’s room. This is a great thing. I would like to see it taken up across more of the agencies. A carer’s room is not only for people coming in with kids who might be a little bit sick or anything of that nature, they are not really meant for that. Your partner might need to get off to the doctor and just needs to be with someone before they go off. They can be in the carer’s room. The whole idea is that you pick up your workplace, you slot it into the carer’s’ room and you work from there.
There is a cost because you have the cost of perhaps a terminal or a desk, but as far as keeping someone in the workplace being productive, where you could possibly lose them to a day’s sick leave or carer’s leave, what is a workplace to do? Where is it going to benefit most, by paying for a day’s carer’s leave with nil productivity out of the worker, or do they have a carer’s room where they make something like four or five hours out of that person for the day? It is tremendous.
When we talk about floating cultural holidays, I remember an instance where a person phoned in, and they were of the Jewish faith, and said: ‘Look, all these Christians are getting Christmas, but it is Hanukkah, why can’t I have this?’ I said: ‘You can! You can have that day off. You can take it on flex or you can ask for a day’s special leave’. These are the flexible approaches to work that we should be looking at, that line managers, executives and CEOs will be looking at because, with our government, through the OCPE and this plan, the work-life balance policy will be linked to strategic plans. This will be part of their daily business, and they will have to report back on it. That is the difference.
It is not like the previous government which introduced or promoted these packages but then did not follow through. This is going to be monitored by OCPE, this will be reported on, and this government will be looking for results because we know that it will, in the end, build a better workplace for all the people in the NTPS. That is what we are all about: building better workplaces, making greater career paths and a more professional workplace. The NTPS call these days is making itself an employer of choice. I hope they achieve that and become an employer of choice. This work-life balance policy will help bring that about.
I commend all those in OCPE for the work they have done, all the HR operatives throughout the agencies, the CEOs - as a matter of fact, the whole of the NTPS. It is great that they have this. I know a lot of the people who are going to be working with it, and I know the hard work that they have put in. Good luck to them.
I think of work-life balance more as work-life blending because you cannot separate work from private life or your home. It is a nonsensical argument to say: ‘Work is over there, home is over here; these two do not mix’. That is not the way it really is. You have to blend it together, so it is work-life blending if you manage to get the balance right. I practice work-life balance in this job. If I am working all weekend, the same as everyone else here, I make sure that I get the time off with my family. I make sure that I balance my interviews and meetings with people in the community. I take work home and I work from home on a weekend rather than go into the office. These are areas that we as politicians can get work-life balance. It is applicable to us and it is incumbent upon us, particularly in this job, to make sure that we practice what we preach; that we do get this work-life balance. You are more productive when you do manage to achieve it.
I do not hold with the member for Nelson’s dinosaur view of industrial relations and work-life balance. I do not think he recognises the pressures and the differences in today’s society as we have moved along. The fact is that we are all working longer hours for different reasons. He does not seem to appreciate that.
This policy is a good thing for primary carers who wish to re-enter the work and get their skills up. All round it is a win-win. It is timely that we look back. It is seven years since the last policy was introduced. That the wording is similar comes as no surprise. They are, after all, about the same thing. We have come a long way since Gough Whitlam, a Labor Prime Minister, introduced flexitime into the Commonwealth Public Service. We have come to 2004 where we have six weeks entrenched leave in the NTPS, which we never had before …
Dr Burns: Well, someone tried to take it from them!
Mr KIELY: That is right. Let us not have any mistakes; the CLP government did want to negotiate out that leave down to four weeks. Because of the distance that we have, this government retained the six weeks. The best thing was recognition that 12 weeks maternity leave is not enough, and this government introduced 14 weeks. You asked what we did for women in the work force. There is one remarkable thing for women, for families, and for men. As a bloke who has kids, it would have been great if my wife could have had that extra two weeks. I appreciate, from that point of view, the policy.
Let us see the opposition members in this parliament get behind and promote this policy. When the member for Port Darwin, who seems to get the most anonymous letters of anyone telling us how frightened people are in the public service, I do not know …
Dr Burns: Grizzle magnet!
Mr KIELY: Yes, it is like a big whinge magnet. Everyone goes to her, according to her. It is funny how they are all anonymous. Let us see her say: ‘Look, it is tough out there. What you need to do is go to your HR people, get a copy of this work-life balance, work with your supervisor, and look at a better workplace for you to be in’. That is what needs to be done. It needs the opposition behind it. We are behind it; the NTPS will be behind it. Then we will find private enterprise and the Chamber of Commerce will get behind it, too, and we will have overall a better working place in the whole of the Northern Territory.
Mrs AAGAARD (Nightcliff): Madam Speaker, I rise in support of the Minister for Employment, Education and Training and his statement on work-life balance the Territory public sector.
Around the world in the past decades, there has been a move for people to want greater flexibility in their working lives. There has been a recognition that governments and corporations need to recognise that their employees have a life and responsibilities beyond the workplace. Many people do not wish to be simply identified by their work life and seek to gain life satisfaction outside the workplace There has also been a move to recognise that people move through various stages of life while an employee, and it is important to recognise those stages in order to maintain and retain a more professional workplace.
Employers are now recognising these life stages. Their employees will be young and require greater training. There will be young married or single parents who have the issues of caring for their young children. They will have the need to take maternity or paternity leave, or care for sick or elderly parents or relatives, and then again to move to retirement.
The Australian government’s statistics on its About Equal Opportunity web site on Facts on Work-Life Balance in Australia indicate that Australian organisations are not providing enough flexibility to enable employees to balance competing work and family demands. The web site says that official statistics indicate that Australian organisations are not producing this level of flexibility and that only one in 10 enterprise agreements contain family-friendly measures; only 4% of enterprise agreements include paid personal leave; 3% include job sharing; 3% include paid parental leave; and 9% include unpaid personal leave.
Research also demonstrates that employees experience considerable stress associated with being unable to effectively balance work and family commitments, and that women are not returning from maternity leave or resigning because they are unable to combine work and family demands is expensive for organisations. The NRMA estimates that it costs $48 000 to replace a manager, $29 000 to replace a senior specialist and $12 000 to replace other staff. One in 18 male employees was working more than 11 hours a day in 1974 and in 1997, one in eight male employees was working for more than 11 hours a day. In 1974, one in six women reported feeling rushed. I am not quite sure what ‘feeling rushed’ means. In 1977, seven out of eight felt that life had become more frantic.
All of these statistics serve to emphasise a core issue that many employees in Australia are now coming to terms with as they seek to recruit employees. As both male and female workers confront rapidly changing patterns of paid work opportunities and work time arrangements, it is often those companies perceived to care about the people aspects of business such as work-life issues, for example, that are attracting and retaining the best talents.
Also, Australian government statistics say that one-third of all employed men and one-third of all employed women have dependent children under 15 years of age. However, nationwide survey data has also shown how common it is for employees with dependent care responsibilities to have to take time off work. Nearly one-third of employed care givers have claimed that care giving commitments cause repeated interruptions at work, resulted in them having to take fewer hours, or both. Almost one-quarter have taken periods of unpaid leave, 16% have taken less responsible jobs, and 13% have refused promotions.
Unfortunately, women continue to shoulder much of the responsibility for caring for dependent family members and this impacts on their opportunity to participate equally with men in the paid work force. Employed mothers with dependent children are much more likely to work part-time than employed fathers with dependent children. Fifty seven per cent of employed mothers work part-time compared to only 5% of employed fathers. Women with dependent children are much less likely to be employed than men with dependent children and unlike women with dependents who have a consistently lower participation rate than women without dependents, men’s participation rates increase with the presence of dependent children. Two-thirds or 66% of employees who took a break of six months or more were women, most of whom, 62%, cited family reasons as the main reason for the break with more than half of those having a child or children under 12 years of age; while the majority of men, 44%, took their most recent break from work of six months or more for personal reasons.
Madam Speaker, there is a wide range of benefits arising from more flexible workplaces. Some of these include, for employees: the ability to maintain employment and skills while meeting family and life commitments; retaining the benefits of ongoing employment; increased job satisfaction and performance; renewed energy and increased morale; improved well-being and reduced stress; improved skills in time management, team building and shared responsibility; increased opportunities for study; increased flexibility with caring and other personal commitments; fewer distractions and interruptions to work; and employment opportunities for those unable to work full-time.
For employers, there are also many benefits including: more efficient use of employees and increased opportunities for employees to undertake new roles; a more motivated and energetic work force because external needs are met; increased performance and productivity through improved organisational climate; reduced absenteeism and associated costs as employees can meet their personal obligations in their own time; competitive edge in attracting and maintaining skilled employees, particularly those who cannot work full-time; reduced recruitment and training costs; retaining valuable employees and reducing turnover; improving organisational health through reducing illness and stress; improving client service and reflecting a diverse client base; improving public image as an employer of choice; attracting skilled and talented potential employees; responding to changing employee requirements for how work is organised; increased organisational loyalty and commitment; reduced length of maternity leave; increased rate of return from maternity leave; maintaining and sustaining organisational knowledge; and reduced workers compensation claims.
It is clear that it is a very good idea to introduce work-life balance into our public sector and into corporate Australia because the benefits are important for both employees and employers.
The minister’s statement and the accompanying booklet outline the many initiatives that the government has or will put into place to improve the work-life balance of our 15 000 Northern Territory public servants. It covers flexible working hours, home-based work, job sharing, part-time work, career breaks, and part-year employment, which enables employees to take a number of weeks in unpaid leave each year.
It also covers short-term absences for family and community responsibilities, as well maternity and paternity leave, the Territory being the leader in paid maternity leave with 14 weeks paid leave for NTPS employees.
Around 9500 public servants are women and, on average, 300 women a year in the service have taken maternity leave over the past five years. These women and their families will undoubtedly welcome the many measures for families, such as home-based work. Apparently, the OCPE conducted a work-life balance survey in November 2003 and 4.7% of staff surveyed indicated they had used home-based work arrangements, and 57.6% indicated that they would have used these arrangements if available. The survey also indicated that 30% of staff make use of flexible hours, and a further 50% indicated that they would use these arrangements if they were available.
I commend the Health and Well-being programs, which can be used, including the provision of a gym in the workplace or subsidised gym membership. One of the things that all of us need to look at is attaining or retaining levels of fitness, and this is an excellent idea. I particularly commend the parental leave seminars and information packs for expectant parents, the family carer’s room in the workplace, which enables employees to continue to work whilst minding a child or family member when other care arrangements break down, facilities for nursing mothers and child care referral services.
Our public servants are very important people who put in place the policy of the government of the day. It is important that we recognise the needs in their lives for work-life balance, and I believe that the Policy and Implementation Plan as presented by the minister today works towards meeting those needs.
I congratulate the minister and the Commissioner for Public Employment, Mr John Kirwan, for their work on this policy, and commend the statement to the House.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I thank the members for Greatorex, Fannie Bay, Nelson, Karama, Port Darwin, Sanderson and Nightcliff for their comments.
I will begin with the member for Greatorex, the first speaker on the statement who told us that public servants are angry and the Chief Minister has her fist around public servants’ throats. I suppose if someone had their fist around my throat, I would be somewhat angry, too. It is bizarre for the Chief Minister to have her fist around the throats of 15 200 people all at one time, but nonetheless, that is the view of the member for Greatorex.
He also said we have created a culture of fear, that public servants are terrified to speak out and that we have politicised the public service. This is what I see when every time I go down to DEET and walk through the workplace and say g’day to people: they all run to the corner, cowering in fear, terrified to speak to me because we are such a bad government.
He said the Chief Minister promised something about no job losses and we have lost 1500 public servants. When we came to government in August 2001, the public service stood at 14 600 people. We have worked to meet our commitments of 100 extra teachers, 150 extra police and 75 extra nurses. We have had increases in Community Development and other areas of Health, such that figures now are 15 200. I just do not know how we could ever have lost 1500 public service jobs. The member for Greatorex needs to have a little look at the facts and figures before he runs with absolute untruths such as those he has put on the record tonight.
His other contribution was about tourism, apparently being let down by the Minister for Tourism, and why are we doing this now. He was critical of the initiatives as well, but failed to offer any himself in terms of what he or the Country Liberal Party government might do in this area.
The member for Nelson’s main query seemed to be who would be ensuring service delivery was in place so that if you rang at four o’clock in the afternoon, who will ensure that the phone is actually answered when we have all these flexible work practices in place. I would have thought he would know that we pay managers quite good money throughout the public service to manage their workplaces, and they are charged with the responsibility of allowing as much flexibility as a workplace can afford but still deliver the service or the product with which it is charged.
As is often the case with the member for Nelson, he likes to have two bob each way. He spoke of support for workers in his contribution, but then claimed the policy goes too far. It is a bit hard to know whether he supports it or not, because, yes it is all good but I think it goes too far, so I think with that, he probably does not support it at all.
The fact is in the future, employers are going to have ever more difficulty attracting and retaining a work force and those organisations that do go the extra yard to offer good conditions of service, those organisations who value their employees, will prosper and it will become a requirement for business to survive, not because you need to be good and nice to your employees; they will have to provide a wide range of incentives, initiatives and moves toward family-friendly workplaces in order to have a work force at all. The number of employees coming on to the labour market year by year is going to decline markedly over the next 20 years. If you are not prepared to come half way and meet some of the needs of a changing mix and a changing work force, you will not have a work force at all and you will be out of business.
The member for Port Darwin was, I am pleased to say, generally pretty positive about it despite the fact that she kept mentioning that many of these things have been around for some time. That is true, but it does not devalue them at all. She did talk about the low rate of take-up in the Northern Territory in comparison with the take-up across other public sectors throughout Australia. One reason that hits me that there might be a lower take-up in the Territory is that it would reflect the demography of the Northern Territory. We have a younger population overall compared with the rest of Australia so that people in their younger years are prepared and want to work full-time as much as they can in those years, and perhaps it is older workers that look more for the work-life balance. That is just one reason that would seem fairly obvious to me. There may be other reasons, and I hope that the pilot projects undertaken, the quite intensive analysis and interviews with employees, might give us those reasons why we have such a low rate of take-up.
She talked about nurses being the largest group of professionals. They share that with teachers in the Northern Territory. In fact, there are slightly more teachers than nurses. Nonetheless, they are both large groups within the public sector. The average age of nurses, according to the member for Port Darwin, and I do not dispute it, is around 44 years, not unlike that of our teaching work force and not unlike that of the work force across Australia. Those points about recruitment and retention that she was talking about are very much behind what is driving this whole policy and program of renewal and encouragement to the public sector and to managers to go that extra yard and do what they can, where they can, to encourage take-up of these initiatives.
I thank the member for Sanderson for his contribution because I thought it was very valuable, coming from personal experience as a line manager in the public sector for many years. He was able to underline at a very personal level the importance of these initiatives in the workplace, and how useful they can be for the employee, certainly, but also for the agency that was able to keep someone at work when other circumstances would have meant that that employee had to miss a day or a couple of days work.
I thank the Office of the Commissioner of Public Employment and the commissioner himself for his input on this. We never went out to pretend that this is all new. I worked on flexitime in the Commonwealth Employment Service in Bundaberg in 1982. That was 22 years ago. We had flexitime in place and the ability to work that bit longer each day so that you could have a flexiday at such time as you built up something like seven hours and 21 minutes, or seven hours and 26 minutes I think it was in those days. We never pretended this is new. What is new or refreshed about it is a new approach: a pilot in a couple of agencies to really put some of these initiatives to the test to find out what will work, what is practicable in the workplace and then we take that pilot to the broader stage of the public sector overall.
In general, Madam Speaker, I thank all members for their contributions, positive and otherwise.
Motion agreed to; statement noted.
ADJOURNMENT
Ms MARTIN (Chief Minister): Madam Speaker, I move that the Assembly do now adjourn.
On 2 September this year, at the Holiday Inn Esplanade, I had the pleasure of launching the 2005 Northern Territory Young Achiever Awards.
These awards recognise the exceptional abilities, achievements and potential of our youth. Government is a proud supporter of the awards, sponsoring the Minister for Young Territorians Excellence in Youth Leadership Award. The Territory’s Young Achiever Awards provide us with the opportunity to promote the positive achievements and contributions of our young people and to encourage them to be actively involved in the community.
The importance of the awards to the community is apparent by the extent of local sponsorship, which is impressive. In addition to sponsorship from government and the Australian government’s support through National Youth Week, the major sponsors are the Darwin and Palmerston Sun, Channel 9, Imparja, TIO, Holiday Inn, Centralian Advocate and Airnorth. In addition, a number of organisations directly sponsor the awards: Charles Darwin University, Woodside, Power and Water, Perkins Shipping, Somerville Community Services, ConocoPhillips and Drake.
The Darwin launch was most entertaining. Jonathon Uptin from Channel 9 was the MC, Judith McFarlane from Darwin High sang the national anthem - just 14 and she has a beautiful voice - Corrugated Iron dance group gave a great performance, and it is good to see those young people achieving excellence in the arts.
Maria Scaturchio was the speaker for the morning. Maria was the winner of the 2004 Minister for Young Territorians Excellence in Youth Leadership Award and the Territory Young Achiever as well, and she certainly shows the ability she has when she makes a speech at occasions like that.
The following day, at the Alice Springs Civic Centre on the council lawns, I was able to launch the same program in Central Australia. Imparja television host Merv Castillion was the MC. Imparja is a major sponsor and Merv was joined by Frank Wade, who is the Company Secretary. Jessica Westbrook, a young Centralian woman, sang the national anthem. She is a young Territorian with a bright future. She closed the awards launch with another song and it was appreciated by all those in attendance.
Also speaking at the launch in Alice was Greg Thompson, Managing Editor of the Centralian Advocate and Jon Bourke from TIO. In Alice Springs, we were entertained by dancers from St Phillips College and their performance was most impressive. Garth Forrester, who was the finalist of the 2004 ConocoPhillips Environment Award gave a speech and demonstrated why these awards are significant. He talked about the impact it had on his life and the pride that he had and then the pride that grew in his job once he was recognised with an award like this.
The Northern Territory Young Achiever Awards program will culminate with the naming of the overall winner, the Northern Territory Young Achiever 2005, at the launch of National Youth Week celebrations on 9 April next year.
In the meantime, I urge all members to look at the wonderful and talented young people they may know and consider nominating them, or you might be able to assist others in making nominations for this celebration of excellence and achievement of our young Territorians.
Mr Deputy Speaker, I would like now to update colleagues on news from the Fannie Bay electorate. On Wednesday, 22 September, I had the opportunity to co-host a function for residents and bowls club members at the Darwin Bowls Club in Fannie Bay. Since the demise of the Arafura Bowls Club, Darwin Bowls has picked up a number of new members and is going through an exciting period of rejuvenation. As you will recall, following the sale of the old Arafura site, a commitment of $100 000 has been made to support the Darwin Bowls Club. We hope that this will enable to the bowls club to encourage greater membership and provide improved services for their members. Actually, I think that sum might be $150 000. Anyway, the get-together function was an initiative of the club to foster a good neighbour relationship with surrounding residents. I was pleased to support the club in this initiative by distributing invites and sponsoring the food.
The Darwin Bowls Club has embraced the concept of a Good Neighbour policy and is proactive in developing positive relationships with residents in the area. Congratulations should be given to the club for their approach. Thanks to the entire committee, especially Kay Cook, Russell Knight, Maureen Hartree and patron Gary Lambert for their support of this function. Thanks also to club members Elsie and Kevin Caton, Patricia and Chris Gamble, Ken Hill and Jane Barlow. There was an excellent turnout of residents along East Point Road to meet club members, including Louise and Randall Jones, Alan Anderson, Steve and Mac, and Sue Coleman.
I turn now to the Tournament of Minds. Two of the primary schools in my electorate, Parap and Stuart Park, recently participated in the Tournament of Minds at Charles Darwin University. It was held on 11 September. Students were given a problem to solve and gave up their own free time to work as a team to come up with a solution. I congratulate all students, teachers and parents involved in this event.
From Parap Primary the student teams comprised Aien Buckley, Rachel Tolliday, Lee Marie Perham, Allicia Cann, Mathew Hodgson, Lachlan Macdonald, and James Constantine. The team was managed by Elizabeth Duguid and supported by Sohum Raut, Mr Myers, Mrs Kattelus and Miss Piper along with a few mums and dads who went along. The Parap students participated in the maths-engineering section and had to make a code machine to crack a mathematical code. They successfully cracked both their codes on the day.
From Stuart Park Primary, the participating students formed three groups and gave up several lunchtimes to work on their solutions. Group one comprised Rhiannon Pazos, Myra Richards, Kristy McAway, Simone Richards, Emma McLaughlin, Emma Folley, Stephanie McCallum and Kerrie Crowfoot. Group Two was Lewis Cole, Max Budack, Jack Kelly, Brendan O’Sullivan, Makayla Earnshaw, Meaghan Reilly, Krista Bridgman also assisted by Matt Kelly. Group three was Odessa Tippett, Rosie O’Reilly, Sally Harding, Annie Piper, Sophie Budack, Zac Menzies, Asha Nur and assisted by Chris Nolan.
Also in September, I attended some of more than 70 events that form the Alice Springs Festival of the Desert. The opening street parade kicked off the festival. Several thousand people watched the event, the focus of which was the Power and Water Light the Way lantern parade. To me, the highlight was the involvement of a wide range of people, especially the 25 kids who decorated their bikes for the Decorate Your Bike competition. Connor Somerville and Anthea Connelly were the deserving winners of the competition. Congratulations to Ildiko Padanyi, who was the coordinator of the street parade.
The next day, I attended the Desert Mob Marketplace held at Araluen. This was a new event in which Aboriginal arts centres set up art and craft stalls with all items for sale under $200. I was one of the almost 900 visitors who spent a total of $43 000 in that single afternoon. Not only was it a great place to buy, but it was a wonderful opportunity to meet artists and art centre workers, and to see the huge variety or work done throughout Central Australia.
On the Sunday, I was delighted to officially open Desert Mob, a stunning exhibition of 387 recent works for sale from Central Australian Aboriginal art and craft centres. About 550 people attended the opening and an additional 4000 have visited so far, and there are still two weeks to go before the show closes. $260 000 worth of entries have been sold so far, with the total value of exhibits worth over $650 000.
Interestingly, well over half of the sales have been to interstate buyers. This is another indicator of how important Aboriginal culture is to our tourism industry. Congratulations to the team at Araluen for the success of Desert Mob including Suzette Watkins and the Curator, Tim Rollason. Congratulations also to the arts centres and the artists for their outstanding work.
That night, I enjoyed having a go at being MC at the Alice Vista Social Club. This was yet another festival event that encouraged Territory talent, and I was most impressed by the musicians as well as the upbeat atmosphere of the evening. It was also pleasing to see that Oz Opera’s La Boheme was a sell out in Alice. I enjoyed the opera so much I was very pleased to be able to go twice – in Darwin as well as in Alice, and it was definitely worth the double effort.
BassintheDust formed part of the Alice Springs festival this year. I could not attend myself, but the line up five national and four Territory bands gave broad appeal to over 1000 young people who attended the event. Congratulations to Rosie Dwyer and Jess Costar, two young people who did a lot of the work pulling this concert together.
Embedded into the festival was the SEGRA conference, the Sustainable Economic Growth for Regional Australia conference. This was the first time this annual event was held in the Territory. Delegates were able to experience the wealth of visual and performing arts that contribute to regional development – socially, culturally and economically.
There were many more events held as part of the Alice Springs Festival of the Desert. I do not have time to here to talk about Desert Song, which gathered together 2000 people in the Todd River bed to listen to indigenous musicians or the Wearable Arts Acquisition Awards, which wowed a sell-out crowd last Saturday.
However, I would like to take the time to congratulate those who put their heart and soul in to making the festival such a success: Artistic Director, Di Mills; General Manager, Jennifer Standish-White; and the Chairman of the festival Clive Scollay all put in a huge effort. Past and present committee members, all volunteers, were Steve Anderson, Robyn Van Dok, Darren Pfitzner, Stephanie Smail, Citta Williams, Marguerite Baptiste-Rooke, Athol Wark, Rachel Clements, Ellie Butcher, Diarmuid Hurlihy, Nieta Milne and Caroline Angel. Many, many others were involved, from volunteers to sponsors.
I was proud that the Territory government invested in the Alice Springs Festival with core funding of $100 000 plus free rent at the Red Hot Arts venue. We also sponsored some of the individual events such as the play Justice, which was written, directed and performed by Alice locals, and, of course, we were the sponsors of BassintheDust.
Arts are critical to the Territory lifestyle and they also mean jobs and tourism opportunities, but most rewarding is the strength of the involvement of the Alice Springs community. The festival has gained a momentum of its own and is testament to the strong and ever-growing visual and performing arts community in Alice and the Central Australian region. I look forward with anticipation to next year’s Festival of the Desert.
Mrs BRAHAM (Braitling): Mr Deputy Speaker, I, too, congratulate the organisers of the Alice Springs Festival. They did a fantastic job and we have had such growth in talent in Alice Springs.
Last Saturday night I went to the Wearable Arts Acquisition Awards. I have to admit, I do not understand how these people have such great creative ideas. The Wearable Arts were outstanding. It was really a sell-out night. There were 430 people in the Araluen Theatre to see this tremendous display by all the local talent. I have to congratulate Nicky Schonklala, the Project Coordinator, and all those who were associated, including the festival Artistic Director Di Mills and General Manager Jennifer Standish-White.
The Yeperenye Natural Fibre Award, to the value of $1000, was won by Janine (J9) Stanton. Now, how on earth this girl ever thought of this I will never know, but the whole outfit was inspired by feral animals. The headpiece, necklace, top, pants and belt were made from fibres from feral animals, including feral cat fur, dog hair, human hair, rabbit hair, camel hair, emu feathers, silk and cotton. The cats were all road-killed, found out of town and were skinned and tanned by J9 herself, and the two cat heads sat here. It was an incredible outfit and, as I say, I do not know how she ever came up with the idea of having an outfit from feral animals. She had a dog with her who also joined the fashion parade, and he was wearing an emu feather collar with dreadlock wings.
The Gallery Gondwana Recycled and Found Object Award of $1000 was a joint project of Jo Nixon, Virginia Sitzler, Sarah Hill, Steph Gaynor, and Liz Scott. This, again, was beyond my imagination. It was called Venetian Bride. It was a bridal gown, constructed entirely of pre-loved venetian blinds, all stitched together by recycled wire. If you can imagine a skirt of venetian blind parts, and even a little venetian blind as the head dress. This outfit was so stunning that it also won the People’s Choice Award, which CAAMA introduced this year as new category and a prize of $500. It was just one of the wonderful things there.
The Yeperenye Open Fantasia Award of $1000 was won by Colleen Byrnes from Sew for U. It was called Desert Summer, and it was the most beautiful outfit made by this lady, who is an outstanding seamstress. It was a silk top. It had wool slivers. It was decorative rayon and metallic thread, and it was all used to create a stunning fabric representing the sun. She has such a fantastic technique with her sewing machine that she was able to do this, and it was embellished with sequins and beads to give that desired perfect effect, and I have to admit the model look absolutely beautiful in it. It was quite an outstanding piece of art.
The Student Award was interesting, and there was a young student from Gillen who was in Year 4, a young boy. He did not win it, but I have to mention him because he entered a garment that he made after a workshop. I love the way he described it. It was untitled, but the dress was made of ‘tubular material and see-through blue stuff, an old t-shirt and small pieces of red material’. Congratulations to Sean Chalmers, his first effort as a Year 4 student in a very difficult arena. Let us hope he goes on to win it in a future year.
The Yeperenye and Travelworld Student Award plus $500 was won by Kelly Trembath, a Year 12 student at Charles Darwin University in Alice Springs. She also received, as part of the prize, an air fare to Sydney for work experience with fashion designer Akira Isogawa. It is quite a treat for her to work with this designer. Her dress was called The Ultimate Gardening Dress, and it was made uniquely from gardening hose, soaker hose and watering tin. It was a fun, abstract dress designed to represent watering the garden. She also won it last year and went to Melbourne to work with designer Alana Hill. Winning that category two years in a row demonstrates there is a future for Kelly Trembath as a designer in the fashion field.
Afghan Traders this year also had an award of $200. It was a Commendation Award, and it was won by Rebecca Koser. The entry was called By Gum. It was a dress made of gum leaves and branches, and it was absolutely wonderful. If you can imagine this flowing dress of gum leaves and the rustle as she walked. Such imagination I just do not have, and I commend it.
There were so many others that we would like to have awarded prizes, but I commend all the people who entered and congratulate them all on their imagination and creativity. It seems a shame that there is just one night when the Wearable Works of Art are shown to the general public. I hope that they are able to use those dresses in some other way as well.
I also inform members that Loraine Caldwell has started working here in our Parliamentary Liaison and Information Unit. Loraine has been associated with curriculum in education for a long time. I am very pleased to welcome her to the agency. She has been working on Celebrating Democracy Week. Year 10 and 11 students from across Australia were invited to apply for the Every Voice Counts Student Forum, which has been arranged as a special Celebrating Democracy Week opportunity for students.
Thirty-two students, four from each state and Territory, will participate. The four students chosen to represent the Northern Territory are Julia Winterflood who is from CDU in Alice Springs, Tamara White from Komilda, Eva Templin from Palmerston High, and Christopher Earl from St John’s College. At this forum, the students will experience and learn about some of the ways a citizen can have a say, express ideas, opinions, attitudes and preferences to government in our democracy. Students will also have the opportunity to meet and talk to politicians, members of lobby groups, the print media and radio, and they will gain a unique behind-the-scenes view of federal parliament and many of the processes in our Australian political system. The forum will take place in Canberra on Monday, 18 and Tuesday, 19 October as a key event in Celebrating Democracy Week. We wish these four students all the very best and I know they will have a great time in Canberra.
To finish, November this year will be the 40th birthday of the Lions Club in Alice Springs. They were inaugurated in 1964 and one of the inaugural members, Keith McEwan, is still a member of Lions in Alice Springs. He brought some literature, which he is gathering at the moment, for the celebration of this 40th birthday. The Lions Club was formed in 1964 at a dinner held at the Riverside Hotel, the old Riverside as we used to call it, and it was sponsored by the Lions Club of Broken Hill. The membership started at 23 and quickly grew over the following years to a top of 52 members. Mr Deputy Speaker, I seek leave to table the names of the Charter Inaugural members.
Leave granted.
Mrs BRAHAM: After the club grew to over 50 members, it was decided to form a second club in Alice Springs. On 20 September 1980, the MacDonnell Lions Club was chartered. During the years, the Lions Clubs of Alice Springs also chartered the Tennant Creek Lions and the Uluru-Ayers Rock Lions Club.
The official charter was celebrated on 5 December 1964 with a great charter dinner held at the Mt Gillen Hotel Motel, which no longer exists. The weather was kind and the celebration was held on the lawns surrounding the swimming pool. All the states of Australia were represented, with delegations coming from all over.
Over the past 40 years, many community projects have been carried out by Lions, and the Old Timers Home in Alice Springs is their Number One recipient. Many projects have been conducted by the Lions Club, including the Anzac Hill walkway, the Camel Cup Race that is held each year and the Hamilton Downs Youth Camp. These are just a few of their ongoing projects.
This year, because of the dwindling number of members in Lions Clubs across Alice Springs, they have decided to merge. The MacDonnell Lions and MacDonnell Lionesses Clubs have now merged into the one club.
The 40th birthday celebrations will be held in November to coincide with the visit of the District Governor, Bob Dewell, to Alice Springs, and will be held at the Old Timers Village.
I congratulate the Lions Club of Alice Springs which has worked tirelessly over many years as a service club in the town, which has been of great benefit to many of the people who they have served.
I also commend the work that Keith McEwan has done over many years. Keith has been in Alice Springs since 1960 when he first managed the Mt Gillen Motel. In 1964, he went to Hastings Deering and, in 1969, he entered the motor vehicle sales marketing area. We all know Keith McEwan from that business as he has been in it for many years. Keith now is a private hire vehicle owner and it is wonderful that he still active in Lions after 40 years in Alice Springs. I commend him and the Lions Club and wish them well on their anniversary.
Motion agreed to; the Assembly adjourned.
Last updated: 04 Aug 2016