2004-10-14
Madam Speaker Braham took the Chair at 10 am.
Madam SPEAKER: Honourable members, I have received Message No 26 from His Honour the Administrator, recommending to the Legislative Assembly a bill for an act to provide for the making of superannuation contributions for certain members of the Legislative Assembly elected or re-elected after the commencement of the act, and for other purposes.
Mr MILLS (Opposition Leader): Madam Speaker, I present a petition from 1101 petitioners, praying that section 7.6 of Gunn be zoned for conservation. The petition bears the Clerk’s certificate that it conforms with the requirements of standing orders. I move that the petition be read.
Motion agreed to; petition read:
Mr AH KIT (Community Development): Madam Speaker, today I provide an update for the House on the Return to Home program through the Community Harmony project. The Community Harmony strategy has two overarching objectives: a significant reduction in the incidence of antisocial behaviour by itinerants in all major Territory centres; and the delivery of infrastructure intervention programs and health services responding to identified needs of itinerants.
The Return to Home program commenced in Darwin in May 2003 and, since its introduction, 1566 people have been assisted to return to their homes – 392 clients returned home between July and September 2004. The Return to Home program was identified as a key initiative of the Community Harmony strategy to provide assistance for people to easily access the opportunity of returning to their home community.
I take this opportunity to dispel the myths about the Return to Home program that the members opposite are keen to propagate. The member for Greatorex was keen to talk down this important and effective service when I presented a ministerial report on the Itinerants Strategy in May 2003, saying there is no clear cut way of ensuring that the cost incurred by an individual flying home will be recovered. He suggested we wait until we present a further report to the House because he was suspicious of the program’s effectiveness.
For benefit of the member for Greatorex, let me point out the statistics of this important program. The Return to Home and accommodation referrals programs using Centrepay agreements is close to full cost recovery. This is a user-pays system which gives people transport options to return home when they become stranded in town. The service is for people who wish to return to their community of origin and are in receipt of Centrelink benefits and are sent to and sign up for a Centrepay agreement to repay their fare home.
In Darwin, the Larrakia Nation pays the fare up-front and depending on the amount, the client enters a Centrepay agreement to repay the fare in two or three pays. Fares are one way, limited to four fares per individual per annum and is only available to Territorians. This service is not available to interstaters to avoid allocating clients with a large debt that becomes unmanageable to repay. Other regional centres have requested the program and options will be developed in consultation with key stakeholders and regional Harmony groups.
Complementary to the Return to Home program is the proof of identification service which has processed over 3000 requests since May 2003. It is apparent that not all of those using this service are itinerant as such. However, it is clear that many who need help to get their identification also require the assistance of the Return to Home program. Without this option, people would remain stranded in Darwin and other centres and would be in danger of becoming itinerant.
We have expanded this initiative to other regional centres as the Community Harmony strategy continues to expand. The program also commenced in Katherine in February this year. Through the Kalano Community Association, 139 people have accessed the Return to Home program in the Katherine region. In Alice Springs, the Return to Country program, run through the Tangentyere Council, has also seen positive results.
Finally, I would like to inform the House on what happens to some of the people who return to home. Twenty-five people returned to Galiwinku in 2003 through this program. Two have passed away from alcohol-related issues, one is working as a plumber, one is working with youth diversionary programs, two are working in home gardening, five are doing landscaping work, and 14 are being counselled by Yalu Women’s Elders Group under the Strong Family program which includes hunting trips, campfire nights and visits to country.
Madam Speaker, this program is an effective, essential service which is helping itinerants to travel home and in many cases, live productive and meaningful lives.
Mr ELFERINK (Macdonnell): Madam Speaker, the statistics that are provided by the minister for police provide quite the reverse on what the minister provides merely in anecdotal evidence. Here are some statistical numbers from the police annual report: when this government came to government, 13 779 people were apprehended for being drunk on the streets of the Northern Territory. The Return to Home program had been operating since shortly after this government came to power and, last year, 19 457 people were apprehended for being drunk on the streets of the Northern Territory. And it is not because they are being returned to home and getting drunk there. If you go through the increases - well, let us take Darwin, for example - when they came to power, 5926 people were being apprehended for being drunk; now 8908 are being apprehended for being drunk.
So, the problem is not being fixed. What is worse is that when I asked last financial year for police to provide figures as to how many people they actually apprehended for offences against the Summary Offences Act - this is urinating in the street, defecating, swearing and fighting offences – sadly, only 700 or so for the whole of the Northern Territory last year, so less than two per day.
This sort of public drunkenness and disorder is largely being ignored by this government. Where do we see it reflected in the crime statistics? We see them in the crime statistics that deal with violent crime, which is on the increase in the Northern Territory - and sexual assault leaps out of the statistical figures as being a crime that is vastly on the increase.
Madam Speaker, this needs to be a ministerial statement because, in ministerial reports, I have two minutes to talk about this. These are the rules set by government. Government does not want to talk about this, which is why they tried to sneak it in now where I only have two minutes to respond.
Mr AH KIT (Community Development): Madam Speaker, I did not expect anything else but knocking from the shadow minister. What was their policy? Let me remind them: monster and stomp on them. That is what you support. What is your policy today? You do not have one.
We have been successful. We will continue to alleviate antisocial behavioural problems. We have put infrastructure in place, we are putting programs together, we are being very positive, and for once, I would like to see the opposition support government in exercises such as this, which are getting good results across the Territory.
The major townships are supportive of it, the agencies are supportive of it, and the opposition would do well to come on board rather than just knock, whinge, whine and carp.
Dr TOYNE (Health): Madam Speaker, today I update the House on developments and achievements in the expansion of renal services across the Northern Territory.
Whilst we continue to work on prevention through our Preventable Chronic Disease Strategy, we have also established a renal clinical reference group made up of a group of dedicated renal specialists. This group has developed a chronic renal insufficiency program as a result of work that they have done on early identification of appropriate treatment interventions.
As part of this program, acute care renal nurses are working closely with district medical officers to educate remote community nurses and Aboriginal health workers on early intervention strategies to delay the onset of chronic renal insufficiency and the need for costly and disruptive dialysis treatment.
Under recent contractual arrangements, we have put new equipment into Darwin, Nguiu, Katherine, Tennant Creek and Alice Springs to provide our hard-working clinicians with improved technology for monitoring patients’ conditions and allow them to be able to provide the best care possible. We have recently established new dialysis services at Galiwinku on Elcho Island and Angurugu and Umbakumba on Groote Eylandt.
In Central Australia, we are supporting the efforts of the Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation in establishing renal services at Kintore. Progress is being made. On 10 September, I attended the opening of the renal training house in Alice Springs, critical in preparing patients to undergo treatment in their own community. I am happy to announce that the first patient returned home to Kintore for dialysis on 28 September.
On 15 September, I opened the new Palmerston Dialysis Unit, which will provide easier access and services for patients for Palmerston and the outer Darwin areas. Undergoing renal dialysis treatment is in itself very disruptive to people’s lifestyles, and the patients to whom I spoke at the official opening of this unit were relieved that they no longer had the added inconvenience of travelling to Royal Darwin Hospital and Nightcliff to access renal treatment.
Construction of the new Tennant Creek Renal Unit commenced on 27 September 2004, with the completion target date of early March 2005. This new facility will be situated in the hospital grounds. It will have the capacity for a total of 32 patients. The 12 patients in the temporary Tennant Creek facility will transfer to the new unit in March while other patients will be transferred on a progressive basis from Alice Springs.
In 2004-05, we will be looking at further expansion of renal services across the Territory, closer to patients’ homes. We have allocated $0.9m for the second stage of developing services in remote areas, and are currently obtaining estimates for dialysis services in Santa Teresa, Maningrida, Goulburn Island and Ramingining.
This government is bringing about a quantum shift in the delivery of renal services across the Northern Territory. We are investing in staff, training, capital and research. We are developing agreements and arrangements with individual patients, families, community councils, traditional owners and health clinics in providing more appropriate services closer to home.
There is a real level of excitement and enthusiasm amongst the staff members within the Department of Health and Community Services who are reshaping the way that renal and other services are delivered. I would like to pay tribute to their efforts and put on record my thanks for their achievements to date.
I would also like to take this opportunity to announce the appointment of the new Northern Territory Director of Renal Services, Dr Matthew Jose, who will be commencing in late October 2004. Dr Jose is replacing Dr Paul Snelling who relocated to Sydney earlier this year after seven years as the nephrologist for the Top End, and the first chair of the NT-wide Renal Clinical Reference Group, which commenced in July 2003.
Dr Jose is a highly-credentialed nephrologist from Melbourne, who holds a Doctorate in Medicine. Most recently, he has been the Director of Transplantation, Victoria Kidney and Pancreas Transplantation Unit, was full-time nephrologist at Monash Medical Centre, and Clinical Senior Lecturer at Monash University. He will be granted academic status with the NT Clinical School. His extensive and impressive curriculum vitae will enhance the future directions of renal services in the Northern Territory.
Ms CARNEY (Araluen): Madam Speaker, I join with the minister in welcoming Dr Matthew Jose. I wish him well on behalf of all members of the opposition. It is a difficult job and, obviously, he is eminently qualified to take it on.
I also take this opportunity of warmly congratulating all of the staff in the Health department who have worked so hard in relation to renal services. We are starting to see some positive results, and that is due to the commitment, knowledge and hard work by those people involved. We all know the dreadful nature of renal disease, and anything that any of us can do to improve matters is, of course, to be most welcomed. I say again to all of the staff involved, congratulations, and on behalf of the people of the Northern Territory, thank you for your efforts so far. We are sure that your efforts will continue over the coming weeks, months and years, and we wish you well. All of us are aware of the terrible nature of this disease and we want some good results.
The minister appears to be committed to this area. I can only say that I wish he was as interested in other areas, such as the Palmerston Health Clinic, the ICU in Alice Springs, the shortage of beds, the Oncology Unit - which was an election promise, the fact that we still do not have a hospice is, of course, of great concern. There are bed shortages in Alice Springs and Darwin. I know that the staff on the ground at those places are working as hard as those in the area of renal disease. I do wish, however, that the minister would demonstrate the same commitment in those areas as he appears to have demonstrated in the area of renal disease.
Dr TOYNE (Health): Madam Speaker, I was about to jump to my feet to acknowledge the first positive statement that the member has made in these entire sittings, but I will not now.
Ms SCRYMGOUR (Family and Community Services): Madam Speaker, this week is National Down Syndrome Awareness Week. I welcome to the gallery today members of the Down Syndrome Association of the Northern Territory. The week of celebrations in the Northern Territory was launched on Saturday, 9 October, at the Leanyer Recreation Reserve. Approximately 20 people attended this barbecue lunch.
The Territory’s Down Syndrome Awareness Week activities will culminate in a dinner auction on Saturday, 16 October. This night promises to be a great night out. To ensure its success, more tickets must be sold, so I encourage all members to try to attend and to spread the word. I know there are already members in the House who have already contributed and supported it, and that is fantastic.
The Down Syndrome Association of the Northern Territory started as a parents support group in 1976, with the main aim of helping people with Down Syndrome to reach their full potential. The association continues to offer support for people with Down Syndrome and their families, through hospital and home visits, and support at school and social events. The current membership of the Down Syndrome Association of the Northern Territory is 29 families and 12 schools. I encourage any families who are affected with Down Syndrome to make contact with the association to find out what support might be available.
Down Syndrome is a congenital conditions affecting both physical and intellectual development. Down Syndrome occurs in approximately one in 700 births, and is caused by the presence of an extra chromosome. It is a lifelong condition which affects each person differently.
The association has a computer-aided learning program offered in both schools and at home, whereby children with Down Syndrome are offered a one-to-one lesson to enhance learning opportunities through the use of computer technology. Where possible, this service is extended to other children with identified learning disabilities. These lesson plans are supported through an impressive range of software programs aimed at developing literacy, numeracy, and other key learning areas. The longer-term benefit of gaining computer skills will also enhance employment opportunities and independent living. Those with Down Syndrome and their carers make a significant contribution to our community.
Two delegates of the Territory’s Down Syndrome Association attended the world Down Syndrome Congress which was held in Singapore in April 2004.
I commend the tireless effort of community groups and their support of those in our community who need a little extra. Our community is rich in diversity and I applaud the commitment by the Down Syndrome Association to organise this fundraiser. Such an event is a practical and fun way in which our community can show its support for those with Down Syndrome and their carers. I know that Territorians are generous in their support of many groups and issues in their community.
I believe that there is a celebrity auction, with items being donated from many here in this House. I am told there may be some interesting drawings which result from the evening, through donations by Wicking of his time and talents. Several members of this House have made some great donations for the celebrity auction. There are dinners, tours, fishing trips and sporting items; so I thank them. The organisation has run television advertisements for the night, and some of the stars of that advertisement are in the gallery today. Some of them are not able to attend the event on Saturday night, but we will buy the tickets for them so that they can attend.
The government provides ongoing assistance to the association with funding to provide information assistance to clients who access their programs, and assistance with accommodation. As minister for Family and Community Services, I have responsibility for the areas of aged and disabilities. There are many disabilities represented across our population, with Down Syndrome being one of them. They could all use more money, and we are trying to help. This government has increased funding to the aged and disability program by 74%. This results in $20m being spent in the area annually. It is not going to solve every shortfall, but it demonstrates our commitment.
In addition to its core responsibility for funding the disability program, this government is aware that disability is a shared responsibility across government, non-government, and private sectors. People with disabilities interact with the community at all levels. I urge the community to accept the challenge and consider ways they can enhance the lives of Territorians with a disability.
I thank the representatives from the Down Syndrome Association for joining us today. I commend the work they are doing and wish them well for the fundraiser on Saturday night.
Members: Hear, hear!
Ms CARTER (Port Darwin): Madam Speaker, I also welcome members from the Down Syndrome Association here today. I also welcome the minister’s report. This is an important week with regards to the Down Syndrome Awareness Week and mental health as well - two key issues here in the Northern Territory. On behalf of the opposition, I offer the support that we have to the parents and friends of people with Down Syndrome in the Northern Territory. It is a significant responsibility that they have, and the care they give their loved ones is unsurpassed.
One of the issues facing people with Down Syndrome is the need for several things. One of them is the provision of meaningful work. It is great to see the efforts of organisations such as the Handicapped Persons Association here in Darwin, and the work they do to provide meaningful occupation for people with Down Syndrome. It is often an issue for carers and families, and for people with Down Syndrome, to actually be able to find meaningful work as they go through life.
The other thing that they need, of course, is accommodation and support. One of the concerns many parents have as they get older is: where will their loved child go once they have died. I know that wonderful organisations like Somerville in the Northern Territory provide supported accommodation for people with Down Syndrome. These are the sort of things that governments and the community as a whole have to work tirelessly to provide.
With regard to the weekend’s activities, I will be delighted to attend the dinner on Saturday night. I had to rack my brains to think of an appropriate auction item that I hope people will bid on. I am going to be providing a sunset tour of my beautiful electorate of Port Darwin. I promise I will not drink any of the champagne, but I certainly hope that the people who bid successfully on that item will because we need to raise as much money as possible to support the association for the great work they do in our community.
Members: Hear, hear!
Ms SCRYMGOUR (Family and Community Services): Madam Speaker, I thank the member for her support. I believe that all of us in this House need to recognise the work, and the contribution that non-government organisations such as the Down Syndrome Association, play in supporting the work of government, and the role that they play in the provision of vital community services. In regard to what the member is putting up for auction, I am going to go one better. A beautiful tour of the Tiwi Islands, or places in my electorate, is something that is going to be put up on offer.
Dr BURNS (Lands and Planning): Madam Speaker, last week I informed the Assembly of the Martin government’s initiative regarding planning for the Myilly Point precinct. Government is seeking input from the community as to how they want that precinct to look in the future. We are talking about the old hospital site, Myilly Peninsula itself, and the Little Mindil area between the Darwin casino and Myilly Point.
Lack of coordinated planning over the years has created something of a dilemma. These prominent and important sites are zoned for tourist commercial development, but nothing has happened on them and they give the appearance of being derelict and public open space.
The previous government procrastinated on development plans for the old hospital site and Myilly Point Peninsula with a number of proposals being considered, and preferred developers selected. However, nothing ever happened. These sites have been effectively in un-planned limbo. We have decided to so something about this. Last week, I launched a public consultation campaign asking Territorians for their opinions about what should happen to these 15 hectares of government Crown land.
I want to update members as to how this campaign is progressing and the type of responses we are getting so far. Most members would be aware of the advertisement that was in last week’s Sunday Territorian and they may have heard the radio advertisements. Judging by the amount of interest shown in this campaign, these sites are very dear to the hearts of Darwin people. Several radio programs have devoted segments to talkback on the future of the precinct, and 30 formal responses have been received so far. Next week, about 40 000 brochures will be delivered to Top End households, and there will be displays in major shopping centres. It is interesting that one of the first proposals we have received, and a number of other people have also suggested in terms of these sites, is that there be a replica of the Darwin Hotel built there. Obviously, there are many Territorians and Darwin people who still remember the travesty of how that building was wrecked and gone forever.
Other suggestions have included a saltwater swimming complex, a tropical park, a boating tavern on the headland, a coastal resort, a water park or other theme park, a cultural centre, a skate park, and a heritage centre. There appears at this early stage to be more support for the development of the old hospital site than for the other two sites, although it is very early days. A number of submissions have said they want all three sites to be retained as public open space, or developed as a park, and many of the submissions are adamant about the retention of public access to the coastal areas in any development.
There are many ways in which people can make their views known. There is a web site: www.ipe.nt.gov.au/Myilly. They can e-mail to myillypoint@nt.gov.au and they can write to Myilly Point Submission, PO Box 1680, Darwin. I am also hoping that many people will respond through the reply paid envelope following the letterbox drop of the pamphlet. I am proud to say that, as always, I am at Rapid Creek Markets this Sunday and will have a display there. The member for Millner and I will be very happy to discuss people’s ideas and take submissions.
Madam Speaker, it is obvious that people care about these sites. They are very important. This government is a consultative government that is going to the public. We want to hear the public’s ideas. Some of them will be very interesting. I hope that members also take the time to respond to tell us their ideas.
Mr DUNHAM (Drysdale): Madam Speaker, I am glad the minister is part of a consultative government when he decides to do what should be done with some hectares of waterfront land. We were hoping to do something similar with this land, the 27 hectares in front of Parliament House, which is due for development. We would have thought that some devices to consult with the people would have been important in that site as well. We were very disappointed that the rhetoric that is flowing now was not employed for that site.
Yes, I did see the minister launch this. He was standing in front of a banner answering questions about why he was trying to pinch Col Cordingly’s land. He seemed to lose the message there somewhere because the media was very interested in that at that time.
I hope that the device he uses of consultation, including letterbox drops, his sign in front of the office and all that sort of stuff, is accurate because so far, some of this information has been inaccurate. It is all very well talking about open space and how this land has been sitting fallow, but there are formal documents and town plans that describe that land already. Some of the land described as up for development has previously been described as open space. I hope that he does not go back to 1990 documents and goes to documents that are a little bit more contemporaneous, which adequately describe in a variety of ways possible uses for this land.
He seeks to criticise the previous government for not rushing into developing this land. As a member of Cabinet at that time, I can tell him why we did not: it is very precious land that should be developed appropriately. It is land for which there are numerous potential uses. Unlike what is happening down at the Darwin waterfront, we would have thought progressing slowly and making sure it was done properly would be a far better option than rushing into something and giving over significant lumps of the people’s land on the basis that they knew nothing about its potential development.
Dr BURNS (Lands and Planning): Madam Speaker, the member for Drysdale is quite negative about the waterfront development. It is a fantastic development. All issues relating to probity have been followed and there is a lot of excitement amongst the public and the construction industry because Territory companies are integrally involved in the consortium that won the development.
I will pick up on what the member opposite said about the land at Myilly Point. My advice from the department is that it is and it has been zoned as B5. It is unique for a government to go to the people and say: ‘We are willing to rezone this land as park land’. We are open to suggestions. We are a government that listens.
The member also has not noticed the letters of support, and the personal support, that has come to me about establishing the Rapid Creek corridor - finally, at last! - after all the inaction and hype and twisted rhetoric of the previous government and previous minister.
Mr Stirling: Timmy.
Mr DUNHAM: A point of order, Madam Speaker! To call ‘Timmy’ across the Chamber is offensive, and given that there is a lot of this going on, I suggest we desist right from the outset.
Madam SPEAKER: Yes, withdraw it.
Mr STIRLING: Madam Speaker, I withdraw. There was certainly no offence meant, Madam Speaker.
Reports noted pursuant to Sessional Order.
Ms MARTIN (Chief Minister): Madam Speaker, I move that so much of standing orders be suspended as would prevent bills entitled Legislative Assembly Members’ Superannuation Contributions Bill 2004 (Serial 256) and Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill 2004 (Serial 257):
Motion agreed to.
Bills presented and read a first time.
Ms MARTIN (Chief Minister): Madam Speaker, I move that the bills be now read a second time.
The Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill and the Legislative Assembly Members’ Superannuation Contributions Bill are a package of legislation to put in place superannuation arrangements for new members of the Legislative Assembly who are elected at or after the next general Territory election. This legislation is the culmination of my commitment at the last election that the superannuation arrangements for parliamentarians should not be out of line with arrangements generally available to the community.
By way of background to these bills, the current parliamentary scheme, the Legislative Assembly Members’ Superannuation Scheme or, as we know it generally, LAMSS, is a defined benefits scheme. This means that benefits for members are fixed and related to salary and length of membership, and unrelated to earnings on any funds set aside to meet benefits. While defined benefits schemes used to be relatively common, with the advent of universal superannuation and the Commonwealth Superannuation Guarantee, most defined benefits schemes have now been closed.
The most common type of superannuation scheme now, and that which is generally available to the Territory work force, is a defined contribution or accumulation scheme. This means the amount set aside each year is fixed, and the final benefit depends on the amount set aside and the investment’s earnings on those amounts.
Honourable members will recall that I announced a review of the LAMSS early in 2002, following which the terms of reference were tabled in this House. The review was the result of my government’s concern about the high cost of LAMSS to the Territory, and in regard to the considerable differences between LAMSS and other superannuation arrangements commonly available to the wider community. The time frame for the review was deliberately structured to allow a full and thorough analysis of the issues, in particular, so that honourable members of this House and the general public could have an opportunity to provide input into the consideration and development of new arrangements. Ken Clarke, the former Under Treasurer, undertook the review, which was presented to my government in November 2002.
In line with its objectives, the review by Mr Clarke canvassed a number of options for revised parliamentary superannuation arrangements which would reduce the cost to Territory taxpayers and which would be comparable with arrangements in other jurisdictions, as well as having regard to community expectations. In February, I tabled the review in this House and invited comments from members on future arrangements for both current and new members. Following this, the Under Treasurer and the Commissioner of Superannuation briefed both sides of the House and the Independent members.
I turn now to the first of the two bills - the Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill. This bill will close the Legislative Assembly Members’ Superannuation Scheme to new members who are elected at or after the next general election for the Territory. There will be no impact on the existing superannuation arrangements for sitting members, who will continue to be covered by the LAMSS. Sitting members will not have an option to transfer to the new arrangements.
The new superannuation arrangements will also apply to all former members of the Legislative Assembly who have left the Assembly but who are re-elected at or after the next general Territory election. This means that former members will not be able to rejoin the LAMSS scheme. Where a former member is receiving a pension from LAMSS, the bill will provide for the suspension of that pension until they next leave the Assembly.
The second bill in this package is the Legislative Assembly Members’ Superannuation Contributions Bill. New members who are elected at or after the next general Territory election will receive employer superannuation contributions at a rate of 9%, as required by the Commonwealth Superannuation Guarantee. This rate is consistent with that received by the majority of Territory workers. The bill provides that 9% will be paid into a complying superannuation fund or retirement savings account nominated by the member. Where a member does not nominate a fund, the 9% will be paid into a default fund.
As the new arrangements are less generous than the current LAMSS scheme, the bill provides for new members to be able to salary sacrifice additional contributions up to 50% of their basic and additional salary to their chosen superannuation fund. Salary sacrifice is widely available to the general community and will not entail any additional cost to the Territory. These changes are consistent with changes that were recently made to the Commonwealth parliamentary scheme and to some state parliamentary schemes.
Madam Speaker I commend both bills to the House.
Debate adjourned.
Bill presented and read a first time.
Mr STIRLING (Treasurer): Madam Speaker, I move that the bill now be read a second time.
The purpose of this bill is to remove any doubt about the implementation of a decision made by the previous government to close the Northern Territory Government Public Authority Superannuation Scheme, known as NTGPASS, to employees who commenced their employment in the Northern Territory public sector on of after 10 August 1999. As honourable members will recall, NTGPASS is the scheme for the provision of superannuation benefits to employees in the Northern Territory public sector. It was established in October 1986 under the Superannuation Act after the closure of the Commonwealth Superannuation Scheme to new Northern Territory government employees.
NTGPASS is a defined benefit scheme. This means that the government’s contribution to the benefit paid to employees upon retirement is determined at that time using a formula based on the length of their employment and final average salary. However, not only is NTGPASS complex and costly to administer but, because it defers payments of the government’s superannuation contribution until retirement, it was giving rise to an increasing unfunded liability, the burden of which would fall upon future generations for Territorians.
Accordingly, in this Assembly on 14 October 1998, the then Treasurer announced that NTGPASS would be closed to new entrants from 30 June 1999, but that the rights and entitlements of existing contributors would fully protected. A new accumulation superannuation scheme would be established for employees commencing from 1 July 1999. The new scheme would be fully-funded and would meet Commonwealth superannuation guarantee requirements.
Closure of NTGPASS to new employees was delayed until 10 August 1999 due to consultations between the government and the Trades and Labour Council. However, from that day onwards, new employees have been required to nominate an alternative superannuation fund to which the government’s employer contributions are made. Where employees do not nominate another fund, their employer contributions are made to a default fund which is, at present, the Australian Government Employees Superannuation Trust, known as AGEST. Employees since 10 August 1999 are, therefore, provided with alternative superannuation arrangements which meet the Territory’s obligations as employer and still give employees the opportunity to make their own contributions and to elect from a variety of investment options and life and income protection insurance packages.
Because employees commencing since 10 August 1999 have been required to join another fund, they are not eligible for membership of NTGPASS. A condition of eligibility under the Superannuation Act is that an employee cannot be a member of a superannuation scheme other than NTGPASS. However, the act itself was not amended to formally close this scheme to new entrants.
On 9 December 2003, the Commissioner of Superannuation sought to formalise closure of NTGPASS from 10 August 1999 by using her powers under the Superannuation Act to declare employees commencing on or after that date to be a prescribed class of employees excluded from eligibility for membership of the scheme. Such powers authorise retrospective declarations. The commissioner’s declaration was published in the Gazette on 17 December 2003.
Recently, Northern Territory public sector unions have voiced concern that NTGPASS has not been validly closed to new employees, and suggested that employees commencing since 10 August 1999, may be entitled to membership of the scheme. The government has sought expert legal advice in response to these concerns, which confirms the validity of the commissioner’s declaration and the closure of the scheme from 10 August 1999.
However, to put the issue beyond any doubt, and to avoid any future uncertainty as to the status of public sector employees under the Superannuation Act, the government has decided that it is best to amend the act as is provided for in this bill. Clause 2 removes future permanent employees, as defined in the act, from the definition of ‘eligible employee’ under section 3 of the act. Only an eligible employee is entitled to membership of NTGPASS under section 26. The commissioner’s declaration of 9 December 2003 had the same effect on employees who commenced on or after 10 August 1999. That is, the declaration removed them from the definition of ‘eligible employee’ under the Superannuation Act.
As already mentioned, the government’s legal advice is that the commissioner’s declaration was a valid exercise of her powers under the act. However, because of a decision of the New South Wales Court of Appeal some years ago relating to government employee superannuation legislation in that state, some doubt may exist as to the validity of the declaration. For the avoidance of any doubt, clause 3 of the bill declares the commissioner’s declaration to have been validly made. That means that the bill confirms closure of NTGPASS to new employees from 10 August 1999, without affecting the entitlements of existing members prior to that date.
The bill also contains a ‘just terms’ clause commonly found in legislation of this kind to protect against constitutional invalidity. Honourable members will recall such clauses appearing in a wide variety of legislation passed by this House. Clause 4 provides for the determination of compensation payable to any employee from whom the commissioner’s declaration, or the bill itself upon enactment, is found to have resulted in an acquisition of property. The purpose of the clause is to avoid the consequence of the bill, or the commissioner’s declaration, being held invalid if either is found to have resulted in the acquisition of property, otherwise than on just terms, contrary to section 50 of the Northern Territory (Self-Government) Act.
Again, the government’s legal advice is that neither the commissioner’s declaration, nor the bill when enacted, is likely to have resulted in any acquisition of property. However, in the remote event of this having occurred, the just terms clause is included to save the legislation, and ensure that NTGPASS remains closed to new members from 10 August 1999.
As I mentioned earlier, the introduction of this legislation was prompted by recent concerns raised by public sector unions that NTGPASS had not been validly closed. The government’s legal advice confirming the validity of the closure was sought in response to these concerns. However, as has been separately announced, after careful consideration of all of the circumstances surrounding the closure of NTGPASS in August 1999, the government has agreed to a proposal by the unions for a limited test case in the Supreme Court. The purpose of the case is to establish whether the closure of NTGPASS from 10 August 1999 resulted in an acquisition of property, such as to entitle employees to just terms compensation, as provided in the bill.
It is important to note that if, contrary to our advice, the case is decided in the unions’ favour, because of this legislation employees may be entitled to compensation but will not become eligible to join NTGPASS. This test case should fully resolve the unions’ concerns about the closure of NTGPASS and the precedent should alleviate the possibility of closure of the scheme being challenged again in the future.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
Bill presented and read a first time.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I move that the bill now be read a second time.
The bill incorporates provisions from three distinct reviews. One concerns matters outstanding from the Review of the Working Group into the Operation of the Northern Territory’s Workers’ Compensation Scheme, referred to as the Stage 1 Review. The majority of the Stage 1 provisions were enacted in the Legislative Assembly in August 2002 and commenced on 1 November 2002.
The second is to give effect to a number of recommendations of the Lord Report. The Lord Report documents a review into medical and associated intervention in the Northern Territory’s Workers’ Compensation Scheme.
The third is to amend the definition of ‘normal weekly earnings’ under the Work Health Act in order to protect the financial viability of the Northern Territory’s Workers’ Compensation Scheme.
With regard to the first matter, the Stage 1 Review, there were three provisions that were not proceeded with in August 2002. During my second reading speech at that time, I stated that some recommendations had not been proceeded with as they required further investigation and consideration. This bill now addresses two of those three outstanding matters.
The bill introduces the concept of ownership and responsibility by the injured worker in relation to employment and return to work. The legislation as it currently stands places many obligations on the employer to return the injured worker to the work force; yet it does no more than to require the injured worker to cooperate with the efforts of the employer. This provision will place a greater obligation on workers’ compensation claimants by requiring that they take reasonable steps to obtain suitable employment for themselves. The provision will not in any way replace the employer’s obligations, but rather is designed to complement the process by ensuring that both the employer and worker have ownership and responsibility for return to work, and therefore mitigation of loss.
The bill also addresses the lack of a time frame for a workers’ compensation claimant to apply for mediation following receipt of a formal notice of rejection of liability, or reduction, or cancellation of benefits. Currently, no time limit applies, so in theory a claimant could seek mediation many years after receiving such notification. This could unfairly prejudice the employer and this provision will remedy the situation by introducing a 90-day time limit for a claimant to apply for mediation following receipt of the formal decision on their claim. The 90-day period was chosen because experience shows that the vast majority of applications are made within this time frame and it will, therefore, minimise the need for litigation in respect of time extensions. There is provision for a claimant to make application to the Work Health Court to extend the time for application should the claimant be able to demonstrate reasonable grounds.
There is one outstanding matter from the Stage 1 Review that is not included in the bill. This matter relates to negotiated settlements. Provision for negotiated settlements has previously received considerable criticism from the Department of Justice as well as the Chief Magistrate. This has mainly been on the basis that it may well compromise the pension-based nature of the scheme and therefore the rehabilitation incentives that a pension-based scheme provides for both employers and injured workers.
Further and more recently, a major review into South Australia’s workers’ compensation scheme recommends abolishing lump sum redemptions. In this regard, the South Australian Review Report says that while redemptions have some appeal in terms of their ability to settle long-term claims at less than their lifetime expected value, redemptions clearly contribute to the risk that some injured workers may continue on the scheme longer than is required in pursuit of a redemption payout. The South Australian report attributes its poor workers’ compensation performance in no small part to the sustained use of redemptions to terminate claims.
The Northern Territory Workers’ Compensation Scheme benefit structure is very similar to that of South Australia. Given this, the South Australian experience is a strong indication that it may be inappropriate to expand the ability in our scheme to finalise claims in the form of lump sum redemptions. Such redemptions are, in effect, the outcome of negotiated settlements. Therefore, it is proposed that there be further evaluation of the South Australian experience, and an evaluation of lump sum redemptions that already exist under the Northern Territory Workers’ Compensation Scheme before further consideration of the implementation of provision for negotiated settlements.
I now address the provisions in the bill that will give effect to a number of recommendations of the Lord Report. The bill will ensure early medical review of claims by limiting the currency of the initial medical certificate to 14 days. It will ensure that the treating medical practitioner will be consulted where medical information is required early in the claims management process. It will ensure notification will be given to the treating medical practitioner of proposals for independent specialist review, and it will ensure that independent medical specialist reports obtained in the claims management process are provided to the treating medical practitioner. These amendments will improve the effectiveness and efficiency of medical intervention in the Workers’ Compensation Scheme, particularly in regard to the claims management process.
There are a number of other recommendations of the Lord Report that are not included in this bill as they do not require legislative amendment but can be implemented administratively.
The final, but far from least, matter that this bill will give effect to, concerns the definition of ‘normal weekly earnings’ under the Work Health Act. Normal weekly earnings, as defined under the act, provide the basis for the calculation of an injured worker’s entitlement to weekly incapacity benefits. Workers’ compensation benefits represent a balance between what is fair for the injured worker and what is affordable to the community. It follows that benefit structures under statutory workers’ compensation schemes are not intended to provide full indemnity for an injured worker’s financial loss but, rather, are intended to meet what is considered by the community to be fair but affordable compensation.
Recent court decisions threaten the balance of the Northern Territory’s Workers’ Compensation Scheme and consequently its financial viability. In this regard, the courts have interpreted the definition of ‘normal weekly earnings’ under the Work Health Act to include employer-funded superannuation contributions made on behalf of workers, and the value to the worker of free board and lodgings and any other non-cash remuneration that could be seen as a benefit to the worker. It is, therefore, now open to interpretation that employer-funded allowances such as annual leave loading, air fares and private use of motor vehicles could also be included in normal weekly earnings. While the court decisions can be seen to have a positive effect for injured workers, because benefits payable will, in many cases, more closely match a worker’s total remuneration, they will have an adverse effect on the costs of the Workers’ Compensation Scheme.
In this regard, if the definition of ‘normal weekly earnings’ under the Work Health Act as determined by the court is not addressed, then superannuation alone would increase future private sector scheme costs by around 4% per annum. In percentage terms, the government sector costs are likely to be higher at around 7% per annum because superannuation contributions made by government are generally higher than in the private sector. Actual costs will be considerably higher when taking into account other employer-funded remuneration, such as rental assistance, electricity subsidies, vehicles, leave loading, air fares, etcetera.
Further, these court decisions are retrospective in their effect, and benefits owing for past periods for superannuation alone are conservatively estimated at $15m for the private sector and $8m for the government sector. These will be unfunded liabilities. These figures do not take into account interest on late payments that, if claimed, could apply to payments owing for up to 17 years. Once again, non-cash benefits are very difficult to estimate, but would add considerably to the retrospective unfunded liability.
These costs would also affect the HIH liability, both past and present. In this regard, the past liability for superannuation alone would be around $2.2m, which does not include interest that may be claimed. Future liability for superannuation would see costs increased by at least 4% per annum, which would conservatively add another $1m to the outstanding liability. Once again, it should be noted that these figures do not include the costs for non-cash remuneration.
In addition to increased costs for benefit payments, there would be increased administrative costs involved in calculating benefits. This is due to difficulty in assessing the value of non-cash remuneration and superannuation contributions. This would be particularly so for part-time or light duty employment, and could lead to greatly increased disputation over the calculation of an injured worker’s normal weekly earnings. There is also likely to be an increase in litigation as applicants test the boundaries of what constitutes the non-cash component of normal weekly earnings. Failure to address this issue will jeopardise the financial viability of the Northern Territory Workers’ Compensation Scheme and, as consequence, force a substantial increase in employer’s workers’ compensation premiums at a time when Territory business can do without increased financial pressures.
The remedy lies in legislative amendment with retrospective effect from the commencement of the Work Health Act in 1987. In this regard, the bill provides that the definition of ‘normal weekly earnings’ under the Work Health Act does not include employer-funded superannuation contributions and non-cash forms of remuneration. This provision will restore the status quo by confirming what was considered to be the intention of the workers’ compensation legislation prior to the recent court decisions. It is not proposed that this retrospective amendment should apply to payments that may have been made before the commencement of the amendment; that is, the retrospective amendment will not enable recovery by the employer of superannuation or non-cash benefit that may have already been paid as part of the worker’s incapacity benefit. Further, the retrospective amendment will not affect compensation payable by order of the court made prior to commencement of the amendment.
The Northern Territory Workers’ Compensation Scheme provides one of the more generous benefit structures when compared with other Australian workers’ compensation jurisdictions. This is particularly so in respective of the weekly incapacity benefits. No other Australian jurisdiction provides for the inclusion of the employer-funded superannuation contributions as part of incapacity benefits, and only South Australia includes some form of non-cash benefit, and only then in limited circumstances.
This bill is further testament to this government’s ongoing resolve to ensure that the Territory Workers’ Compensation Scheme is equitable, efficient and viable.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
Bill presented and read a first time.
Dr TOYNE (Justice and Attorney-General): Mr Deputy Speaker, I move that the bill be now read a second time.
The bill is part of a package of reforms that this government is making to the building industry. A discussion paper was published in August 2002 which drew on recommendations for reform made by the Western Australian Task Force report on security of payments for the Western Australian building and construction industry. Copies of the discussion paper were also sent to professional bodies, individuals, and companies who have participated in the government’s examination of the construction and procurement issues. Submissions were received from several bodies and, subsequently, a construction industry reference group was established to consider contractors’ payments issues, together with a number of other issues of concern to the construction industry.
That reference group is comprised of representatives from the Territory Construction Association; Construction Accreditation Limited; the Construction, Forestry, Mining and Energy Union; builders; the Australian Institute of Building Surveyors; the Housing Industry Association; and the Civil Contractors Association. Additionally, it is supported by government officers from the Office of Commissioner for Public Employment; the Department of Justice; the Department of Infrastructure, Planning and Environment; the Department of Employment, Education and Training; the Department of Business, Industry and Resource Development; and a member of the Building Practitioners Board and Building Appeals Board.
The bill is modelled on Western Australia’s Construction Contracts Act 2004. The differences between the Northern Territory bill and the Western Australian legislation reflect different administrative arrangements in place in the Territory, and address the issues raised by the construction industry representatives over the past few months, and in the submission made by the Law Society Northern Territory and others in response to the 2002 discussion paper.
The result is the repeal of the Workmen’s Liens Act, a South Australian act which dates back to 1893, and its replacement by this legislation, which will promote good payment practices in the building and construction industry. It does this by prohibiting payment provisions in contracts that slow, or halt, the movement of funds through the contracting chain. It will also help speed up the movement of funds by providing a rapid and cost-effective adjudication process for payment disputes.
The building and construction industry is vital to the Territory’s economy. The failure to pay at any stage in the contracting chain can have disastrous effects for those further down the chain awaiting payment. Until now, their only recourse was to register a lien against the title to land upon which the construction works were carried out, or to which materials were supplied in respect of those works, and then to litigate. The time limits and technical requirements of the Workmen’s Liens Act often meant that contractors lost their right to have a lien registered against the title. It also meant that titles would be encumbered by liens when disputes proceeded slowly through the courts. Sometimes the owner of the land would only be a spectator in a dispute between a contractor and a subcontractor. Whilst the registration of the lien may have given some security for payment, it did little to speed up the payment process.
The bill, subject to exceptions contained in the bill, applies to all contracts for construction work and related services. It also covers contracts for the provision of related professional services, and for the supply of goods and materials, and plant and equipment to construction sites. The bill does not cover drilling work carried out for the purpose of discovering or extracting oil or natural gas, or mineral bearing substances. It also does not cover the construction of shafts, pits, or quarries for the purpose of discovering or extracting minerals. However, it does cover other construction work which may be carried out in conjunction with mining activities. In this regard, the Northern Territory’s approach differs from that taken in Western Australia. If need be, regulations can be used to clarify or alter the scope of the bill should any uncertainty arise during the course of its operation, or should it be decided in the future to extend or reduce the scope of its operation.
The legislation supports privity of contract between the parties. A party commissioning construction work must pay for the work. The obligation to pay cannot be made contingent upon the party with that obligation being paid first under some separate contract. The legislation prohibits ‘pay if paid’ or ‘pay when paid’ clauses in construction contracts. Apart from prohibiting these particular practices, the bill does not unduly restrict the normal commercial operation of the industry. The parties to a construction contract will continue to be free to set their own contractual terms, as long as they put those terms in writing and do not include these prohibited terms.
Where construction contracts are unwritten, the bill will imply various provisions that the government and industry consider are fair and reasonable with various types of parties. These provisions deal with payment terms, and the clarification of the rights of the parties to deal with unfixed materials when one of those parties becomes insolvent during the course of the contract.
When a party to a construction contract believes it is not being paid in accordance with the contract, the bill will provide a rapid adjudication process. It will operate in conjunction with any other legal or contractual remedy available to the parties. The adjudication process will allow an experienced and independent adjudicator to review the claim and, when satisfied that some payment is due, make a binding determination that money be paid. The primary objective of the process is to keep money flowing down the contracting chain by forcing timely payment, and sidelining protracted or complex disputes.
The process is kept simple and will therefore be cheap and accessible, even for small claims. If a party is not satisfied with the adjudication process, it retains its full rights to go to a court, or use any other dispute resolution mechanism available under the contract. Pending any such action, the determination of the adjudicator stands, unless an application is made to the local court for a review of the determination and the court exercises its discretion to order a stay of the implementation of the determination pending the outcome of the review.
The aim is to ensure that court processes are not used to destroy the efficacy of the process for speedy adjudication outside the court system. The effectiveness of the adjudication process will depend on ready access to capable adjudicators. To achieve this, adjudicators will be registered by a Construction Contracts Registrar appointed under this bill to ensure that adjudicators have the necessary expertise and are independent. The government notes the views of the Law Society that there may be a limited number of such experts in the Northern Territory. However, the government is confident that the market for professional services will prevail to provide the services as needed.
The parties to a construction contract may agree at the outset who they want as their adjudicator if a dispute arises during the course of a project. If they cannot agree upon an adjudicator, the party wishing to make a claim may go to a prescribed appointer who will appoint a suitable registered adjudicator. Prescribed appointers will typically be heads of professional bodies active in the industry and free of any sectional interests. This reflects the common practice in construction contracts to have an independent dispute arbiter appointed by an independent professional with the knowledge and expertise necessary to identify the issues in the dispute so as to be able to appoint someone with the appropriate expertise to arbitrate or adjudicate that particular dispute. The Construction Contracts Registrar may be a public servant or may be appointed from outside the public service.
This bill will not remedy every security payment issue, but it will provide members of the construction industry with simple and effective tools to clarify their rights to be paid and enforce those rights.
I also indicate that it is intended that a bill providing for consequential amendments will be introduced at a subsequent sitting of the Assembly. This bill will deal with matters arising from the repeal of the Workmen’s Liens Act, the most significant such amendment being that of re-enacting some of the general provisions regarding liens that are contained in sections 41 and 42 of the Workmen’s Liens Act.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
Bill presented and read a first time.
Dr BURNS (Transport and Infrastructure): Madam. Speaker, I move that the bill be now read a second time.
The bill amends the Building Act to provide for the registration of home builders and the introduction of compulsory home warranty insurance. Government made a commitment to the Territory community that it would bring in these measures to give the protection to consumers that is the norm elsewhere in this country for people building and buying their own homes.
The family home is the single most valuable asset most families have and the consumer protection that it deserves is long overdue. We have all heard horror stories of family and friends whose builders have collapsed, leaving them with partly-built houses and considerable additional costs, as well as stress, to obtain another builder to complete the work. Names like Pricemaster, Bayview and Di Mella from our recent history immediately come to mind. The papers were full of tragic stories of victims. People were devastated as their dreams turn into nightmares.
At the time, the member for Fannie Bay as the Leader of the Opposition made a commitment to provide protection for home buyers. I am pleased to deliver on that commitment by introducing this bill to give consumers real protection.
Consumer protection will be provided through regulating the residential building industry to ensure that home builders are qualified, experienced and competent. This will allow compulsory home warranty insurance for non-completion and non-compliance of works to be provided by the insurance industry.
On 14 February 2003, my predecessor released a discussion paper on the registration of residential builders and home warranty insurance. An industry reference group was formed to manage the industry and community consultation, review the submissions received, and provide advice to government. The consultation was extensive throughout the Territory. Twenty-eight submissions were received and the industry reference group made 70 recommendations on 7 August 2003. Government has accepted 59 of the recommendations. The remaining recommendations generally related to expanding the registration system to include others in the building industry who are not the principal residential building contractor.
After considering, at length, the submissions and recommendations, and having regard to what was happening at a national level, particularly other jurisdictions’ legislative responses to the crisis in the insurance industry, government released details of its intentions. It also formed an extended industry reference group known as the Construction Industry Reference Group, to provide advice to government on the implementation of a range of construction industry reforms and initiatives, including this matter and other bills that will be considered by parliament.
The members of the group are Mr Gerard Butler, consultant (Chairman); Mr John Brears, Building Appeals Board and member of the Building Practitioners Board; Mr Jon Baker of the Territory Construction Association; Mr Graham Kemp, Housing Industry Association; Mr Brendan Meney, representing regional industry; Miss Penny Whinney-Houghton, Australian Institute of Building Surveyors; Mr Paul Nowland, representing medium-sized builders; Mr Joe Gallagher, Construction, Forestry, Mining and Energy Union; Mr Steve Ward, Contractor Accreditation Limited; and Mr John Emslie, Civil Contractors Federation.
The group continues to be very active and effective, and members are able to bring guests from their organisation to ensure maximum industry participation. At the last meeting, the members agreed that the process had been very successful and that consideration should be given to extending the life of the group, to be a forum for government and industry to address matters of mutual interest in the building and construction industry. Government is very appreciative of the work done by the group to date, and I publicly thank all the members who have given of their time to contribute to the overall development of the industry.
It is true that sections of the industry have taken different positions on some matters to those proposed by the government, particularly in relation to the extent of registration proposed in the building industry and the nature of home warranty insurance. I will come back to these matters later.
At this stage, I wish to outline the main aspects of the bill. Matters relating to detail will be in subsequent regulations and determinations. However, I will include comment on government’s intentions where appropriate.
Firstly, builders’ registration. The bill creates a new category of ‘building practitioner’ called ‘building contractor’. The regulations will make a sub-category of Principal Residential Building Contractor. A contractor will need to be registered to carry out prescribed residential building works. The regulations will prescribe those works as new houses and units, and extensions to existing houses and units, regardless of the height of the building. Renovations such as re-roofing and bathroom refurbishing, and extensions below a prescribed amount, proposed at this stage to be $12 000, will be excluded. This type of work is done by trade contractors and these trade contractors will not be required to be registered to do such work. Likewise, subcontractors will not be required to be registered as they will be under the supervision of the principal residential contractor when building houses.
Government’s concern is for the person building a new home or extending an existing one. Most people rarely embark on such projects and are not familiar with the nature of the work which involves a considerable investment. By requiring the builder, as the supervisor of the project, to be registered, reasonable consumer protection can be achieved.
The reform is substantial and the transition will require careful management by industry and government, and will be subject to ongoing review. The Building Practitioners Board will be expanded with appropriate industry membership to administer the registration of building contractors, along with all other building practitioners. All registration for building practitioners will be for a two-year term. Currently, there are persons and firms registered as building certifiers, certifying plumbers and certifying engineers. A registered building certifier can rely on certification by a registered engineer or plumber when issuing a building permit. They have no time limit on their registrations, and it is appropriate that they should.
Under the new provisions, re-registration will be subject to past performance, continuing professional development and a fee. Existing builders who demonstrate competency to do building work will be registered and, subject to their ongoing satisfactory performance, will quality for re-registration. However, new entrants will need to have, in addition to competency, the required qualifications and experience. This will also apply to anyone in the future whose registration has lapsed. If an applicant has accreditation by Contractor Accreditation Limited, known commonly as CAL, any common ground to the two processes will not need to be covered again in an application for registration as a builder; that is, appropriate recognition will be given of prior accreditation. Likewise, any other relevant accreditation provided by a recognised provider will be treated in the same manner.
Owner-builders will be exempted from the requirement for builder’s registration but, instead, will be required to obtain an owner-builder certificate by successfully completing a short course prior to obtaining a certificate. An owner-builder will be restricted by regulation to building on one parcel of land in a six-year period. That building certification will be annotated that the works have been carried out under the owner-builder provisions and placed on the building record to inform future purchasers.
I now turn to home warranty insurance. This is an important matter, along with the builder’s registration. Home warranty insurance provides homebuyers with protection from financial loss due to non-completion of house building contracts due to the building contractor’s death, disappearance or insolvency. It also covers owners and future owners for non-compliance with building regulations of building works; for example, structural defects, for houses and units in buildings up to and including three storeys for six years after completion. Again, this is in the case of death, disappearance or insolvency. The bill provides for both components of home warranty insurance to be mandatory for houses and extensions above a prescribed amount - as I have said previously, proposed at this stage to be $12 000. Renovations that do not require a registered builder will also not require insurance.
Unit developments will not be required to have the non-completion component, as they are built by developers as a commercial venture and sold individually with unit titles on completion of construction. The non-compliance component will be required for buildings up to and including three storeys. The three-storey cap is a national one that other jurisdictions and the insurance industry have made to ensure home warranty insurance remains available. A building above three storeys has a large enough body corporate to seek redress through the courts. Owner-builders and speculation house builders will only be required to have non-compliance insurance to cover the event of the property being sold within the six-year period. Government authorities will not be required to take out non-completion or non-compliance insurance as, by definition, governments will always exist to make good any defects. The insurance policy will be part of the official record in the building file held by government.
The existing Home Building Certification Fund established with the introduction of private certification in 1993 and managed by the Territory Insurance Office on behalf of the government, will be wound up from the date of implementation of the new insurance scheme. This fund already has the national three-storey cap that I have referred to. In order for competitive insurance products to be available in the relatively small Territory market, it is important that the prescribed conditions relating to the home warranty insurance are consistent with the norm nationally.
I now turn to matters that are related to the registration of builders and home warranty insurance. In order to increase building practitioner accountability and reduce the vulnerability of the home buyer to financial loss, the following reforms to the certification process are provided for in the bill. For residential building works that require non-completion insurance, there must be a contract between the parties with certain prescribed matters. The prescribed matters are proposed to include a declaration that the builder has secured the home warranty insurance, a declaration that the home buyer has secured appropriate finance; a statement of the work stages to which the progress payments will be linked, and the amount of each progress payment; the location and description of building works to be undertaken; the proposed building permit number, which identifies the compulsory building inspection stages; a dispute management process between the parties; and a deposit limit.
The bill requires evidence of a project’s specific home warranty insurance policy, and a building contract, prior to the issuing of a building permit and commencement of building work. Compulsory inspection stages will be prescribed by regulation. Generally, they are proposed to be at the stages of pre-slab, pouring of the slab, wall framing or reinforcing of block walls, roof frame, wet areas, and final inspection prior to the issuing of the occupancy permit. The building certifier will be responsible for inspection and certification of each compulsory stage.
As we all know, the Territory covers one-sixth of Australia. The Building Act does not apply to it all. However, there are remote areas to which it does apply. Consideration has been given to the difficulty and cost of servicing those remote areas and it is proposed to exempt them from some of the requirements, particularly those that relate to mandatory inspections. Government will give people in those areas the choice to have the full package, or only part. The principal residential building contractor will be required to sign a legally binding declaration upon completion of the building project that the works comply with the building permit.
I referred in my introduction to the matters of difference between some sections of the industry and government. I now wish to address these two matters. Firstly, there has been criticism that the government is not going far enough in the regulation of the industry. Those who hold this view want a fully regulated industry, including trade contractors dealing directly with the public, generally doing renovations and repairs, and subcontractors. As I have already said, the government maintains that the primary issue is consumer protection, and the target audience is the house builder and the house or unit owner when they are making substantial investment in property. The objective is achieved by registering the principal residential building contract.
Secondly, some have called for the home warranty insurance not to be made mandatory until the insurance difficulties of recent years are behind us and suitable competitive insurance products are available in the Northern Territory marketplace. A major issue relating to insurance eligibility is the capitalisation requirements of the insurance industry for a building contractor. Everywhere else in the country, builders must have between 5% and 20% of their annual turnover as accessible assets. This, combined with the financial reporting that will be required, will mean that builders may need to restructure their companies, as has happened in every other jurisdiction.
Home warranty insurance has had a controversial history interstate, particularly since 2001 following the collapse of HIH. Most of the controversy has been in New South Wales and Victoria where there have been numerous inquiries and investigations. In 2002, the Ministerial Council on Consumer Affairs engaged Professor Percy Allen to do a National Review of Home Builder’s Warranty Insurance and Consumer Protection. Later that year, the working party of the Standing Committee of Officials of Consumer Affairs made a response to the report. In New South Wales in 2002, the joint Select Committee on the Quality of Buildings handed down the Campbell Report. In 2003, Mr R Grellman presented his report to the NSW Home Warranty Insurance Inquiry to the New South Wales Governor.
This was followed later that year by A Review of the NSW Home Warranty Insurance Inquiry 2003 by Peter Tyler who was commissioned by a consortium of contractor associations and professional institutes. It is understood that the consortium included B-Fair and Builders Collective, lobby groups formed by small builders opposed to private underwritten home warranty insurance and advocating government underwritten schemes.
All of these reports and the many debates, demonstrations, letters and media articles they have generated, produce many conflicting statistics to support their recommendation. However, the end result is that government has rejected alternative models, such as voluntary and government-run schemes and amended their regulations and administrative requirements to ensure there are suitable competitive insurance products in the marketplace.
Queensland is the only jurisdiction with a long-standing government-run scheme. The Queensland government takes 25% of the risk and reinsures the remainder through insurance companies. It does appear that the major issues have been resolved, and that there are three insurance companies established in the national market with a fourth giving serious consideration to entering the market. Some evidence of this is that Australia has just experienced a boom in the building industry that would not have been possible if the industry was being seriously restricted by the availability of home warranty insurance.
The government has consistently given assurances that the scheme will not be commenced until suitable competitive products are readily available in the Northern Territory. In order to provide the substantial lead time that has been shown to be necessary interstate and allow more time for the insurance market to demonstrate it is working satisfactorily, it is proposed to stage the introduction of the scheme. The registration of builders part of the scheme will be commenced in January 2006, and the home warranty insurance part later in that year.
In conclusion, considerable work still needs to be done on regulations, determinations and administrative procedures. The Building Practitioners Board will need to be restructured. Transitional arrangements for existing builders, processes for the assessment of applications, staff recruitment, fees and funding will all need to be addressed. Qualifications will need to be determined, and training and education programs developed. Industry will need to make the required applications, restructure business if necessary, undergo any training requirements and budget for the associated cost.
All building contractors affected by the Building Amendment Bill will also be affected by other bills that are the subject of consideration by the Construction Industry Reference Group. It is, therefore, essential that the government continues to work closely with industry to ensure mutually beneficial outcomes in the interests of the whole community. A comprehensive communication strategy has been developed to ensure the entire building and construction industry and the Territory community is fully informed on the progressive implementation of the complete package.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
Continued from 17 August 2004.
Ms MARTIN (Chief Minister): Madam Speaker, the Auditor-General reports to the Legislative Assembly twice each year on matters arising from audits conducted by his office in the previous six months. The latest report was tabled on 17 August this year.
The audits conducted and reported on by the Auditor-General provide parliament with an independent opinion on findings about financial information, internal controls and performance management systems of the Territory public sector. As well as appraising existing practices, the Auditor-General makes recommendation for improvement. Through his regular reports, all members of this parliament are better placed to appraise the performance of public sector administration.
As well as reporting to the Legislative Assembly, the Auditor-General brings these matters to the attention of agency chief executives for their consideration and action as necessary. I am pleased to note that in his latest report, the Auditor-General’s overall finding was that the accounting and control procedures that he examined provide reasonable assurance that the responsibilities of the accountable officers as set out in the Treasurer’s Directions are being met.
Other general findings were in the area of asset management. The Auditor-General noted that there had been a general improvement in the management of assets, although there are areas for further improvement. In my term as Treasurer, management of assets was one of the issues associated with the introduction of accrual accounting. Management and valuation of assets was something considered to be an area in which, over time, agencies would come to have a greater understanding. It is good to note that the Auditor-General already, in a couple of years, is saying that that has progressed some way.
It is pleasing to see that internal audit is an area where the Auditor-General notes that there continues to be a general improvement and, in relation to accounting and property manuals, it is reported that they are generally well-maintained.
The report raised some whole-of-government issues which are: the need for agencies to maintain and keep up-to-date registers of fees and charges, losses or contingent liabilities; that, while procurement processes were generally in accordance with regulations and guidelines, it was noted, however, that there are some instances where procurements where not gazetted; and when accountable officers’ trust accounts were examined, some instances occurred where reconciliations were not balanced or were difficult to interpret.
The findings in relation to the Department of Chief Minister noted, in examining payments related to ministerial travel, the Auditor-General concluded that procedures were sound and adhered to in practice, and travel entitlements were paid in accordance with relevant Remuneration Tribunal Determinations. In the area of frequent flyer points, the Auditor-General made recommendations concerning controls over their accumulation and use. The Auditor-General’s comments covered the issue of effective monitoring of the usage of frequent flyer points accumulated as a result of official travel.
Current Northern Territory public sector policy states that any points accrued to an employee as a result of official duty on behalf of the Northern Territory government may only be applied to subsequent official duty travel. To implement an appropriate system that ensures frequent flyer points are only used for official travel, and to ensure maximum use of these points, is difficult because the department is not able to access frequent flyer statements held by individuals and the number of frequent flyer seats made available by the airlines is limited. The department will continue to investigate ways to implement this recommendation, and will also review the outcomes of the notional recording of points being trialled by the Department of the Legislative Assembly and will determine whether such a system is worthy of further investigation.
Other areas highlighted by the Auditor-General concern specific activities in other agencies, and I will leave the ministers of those agencies to make appropriate comments on those matters.
I gave an undertaking to deliver open and accountable government to Territorians. The independent opinion of the Auditor-General is an important aspect of this commitment. His comments, reports and recommendations are viewed most seriously by government and given due consideration by ministers and chief executives alike. I place on the record my thanks to the Acting Auditor-General, Ken Simpson, for carriage of this report, and wish him well in the future.
I welcome our new Auditor-General, Frank McGuiness. We know Frank from his time in Treasury in the Territory, and certainly welcome him back on board. He is someone who has a long commitment to the Territory and a long association with the Territory. I am sure this House will join me in welcoming Frank McGuiness as our new Auditor-General.
Mr MILLS (Opposition Leader): Madam Acting Deputy Speaker, I also echo the words of the Chief Minister in welcoming Frank McGuiness. I appreciated his involvement in the estimates process a couple of years back, and certainly welcome him back to this most important of roles. I also acknowledge the fine work of Ken Simpson, who acted in the role for a period of time. Much appreciated. The role of the Auditor-General is one of such importance that I welcome Frank to that role and look forward to the ongoing reporting to this parliament.
In going through the report, I note, and am reminded, that a range of issues are assessed by the Auditor-General and, in particular, the Department of Health and Community Services and an audit of procurement processes. The object of the audit was to assess whether internal controls over the procurement process of the Department of Health and Community Services provide reasonable assurance that there is compliance with prescribed requirements. That was the purpose of it. It is a concern that in conducting that audit, that there were some deficiencies, particularly in light of the very embarrassing revelations that have been brought before this parliament in previous sessions with regards to procurement that appeared to favour supporters of this government, and cast a serious shadow over the procurement process and this government.
On the face of it, the audit was conducted and it found that there are issues related to certain procurement procedures within DHCS requiring attention. One would have thought that these matters would have been the top-of-mind issue that would have been closed down in light of the very embarrassing revelations that have been presented to this parliament in previous sessions.
The revelation, of course, is that a tender request for a certificate of exemption did not have evidence of an approval by the minister responsible for procurement policy, which is a requirement of a contract that is valued in excess of $250 000. That is the concern; that with the level of interest in procurement, and particularly within this department, that this has been uncovered. I thank the Auditor-General for his reporting on this matter.
I can only urge the minister responsible to ensure that those procedures are addressed and corrected so that we have a greater level of confidence in the procurement process in the Northern Territory, and that shadow and slight that has fallen upon this government and those who are involved in the last issue no longer will visit and discredit the procurement process.
I also note that a number of contracts with values in excess of $10 000 were gazetted but were not processed by Contract and Procurement Services. That follows an accompanying recommendation. Once again, it is surprising that we have this uncovered also by the auditor’s scrutiny. Once again, I urge the minister responsible to doubly reassure those who are involved in procurement of government services that we can have confidence in the procurement process.
I turn to another area of concern; that being - and I seek members’ opposite contribution on this - the issue of Jabiru Town Development Authority and the key finding that there is nearly $9m that is owed to the government. I need some – as any member would - clarification of what that actually means, and what are the implications for …
Mr Stirling: Get a briefing. It has been there since your government was in office!
Mr MILLS: I am simply in this parliament raising this is an issue, and you will have your opportunity to address this issue as you, in government, have responsibility to respond to these matters. I am simply saying that this is a concern that has been highlighted within this Auditor-General’s report. I seek some further information in this Chamber on the public record as to what this actually does mean for the future of the Jabiru Town Development Authority.
Dr TOYNE (Health): Madam Acting Deputy Speaker, I speak on the Auditor-General’s August report to the Assembly in so much as it deals with matters related to the Department of Health and Community Services and the Menzies School of Health Research.
I will deal first of all with the procurement issue that was included in the Auditor-General’s report; that is, the tendering and rollover of contracts.
The department’s procurement systems and procedures were audited to determine whether they provided the department with reasonable assurance that all prescribed requirements were being complied with. The audit findings concluded that the department’s internal controls provided reasonable assurances that there was compliance with the procurement requirements of the NTPS. However, issues were raised about a number of procurement procedures which, in the view of the Auditor-General, required attention. I am advised that one of these issues related to a certificate of exemption for a contract initially estimated to be less than the $250 000 threshold requiring approval by the minister for that procurement.
In this situation, the department was purchasing three years supply of consumables for a particular piece of laboratory equipment. Based on previous experience with this equipment, the departmental officers did not expect the cost of the laboratory test materials to be in excess of the threshold. When the sole supplier’s final costings were received in the department, the department should have stopped the process and sought further ministerial approvals, including the minister for procurement. In future, when a final costing exceeds $250 000, the department will ensure that all required approvals are obtained before the purchase is completed.
To ensure that errors such as this do not occur in the future, I am advised that the department has established a central contracts coordination unit which will be responsible for liaison between the contract and procurement services, the procurement review board, and the departmental requesting officers. All tender procedures will be channelled through this unit to ensure the correct procurement processes are adhered to. This will address the concerns raised by the Auditor-General.
Dealing now with the management of non-government organisations in the delivery of health services: the Auditor-General conducted an audit of the department’s performance management systems to determine their adequacies in assessing the effectiveness, efficiency and economy of non-government organisations in achieving the department’s objectives. The Auditor-General acknowledged in his findings that the department had been conscientiously seeking refinements in its non-government organisation administrative processes. However, for the department’s performance management systems to sufficiently determine effectiveness, efficiency and economy, a number of areas needed improvement.
In response to these concerns, I have been advised that the Auditor-General’s recommendations have been incorporated into the department’s review of its administrative systems and overall relations with non-government organisations. I am optimistic that this review will be of considerable assistance to the chief executive officer in improving the agency’s management of non-government organisation processes.
Similarly, a number of actions in response to the Auditor-General’s audit have been implemented. Responsibilities for the administration of a non-government organisation’s funding, for example, has been transferred from the community services division to the chief finance officer. This will increase the focus on procedural compliance, consistency and accountability.
Looking now at performance reporting in the DHCS 2003-04 Annual Report: the Auditor-General also reviewed the department’s performance reporting and assessed the agency’s compliance with Treasury Circular B03-03/04, reporting of output performance and its compliance with section 28 of the Public Sector Employment and Management Act. The audit opinion from this audit indicated that although the department’s performance reporting complied with Treasury Circular B03-03/04, it did not fully address the requirements of section 28 of the Public Sector Employment and Management Act. It was considered that although the performance reporting was comprehensive, it did not fully address the agency’s efficiency and effectiveness as required by section 28.
Since the introduction of Working for Outcomes in 2001, I am advised that this department has continued to develop the accuracy and comprehensiveness of its performance reporting. I am pleased to be able to report that the performance measures for Hospital Services, an area of particular concern for the Auditor-General, now includes fixed costs. This substantially increases the proportion of total costs addressed by the agency’s performance reporting.
As previous annual reports only reported hospital performance in relation to variable costs such as staff or consumables, there was little accounting for performance in relation to fixed costs such as capital and infrastructure. This, as pointed out by the Auditor-General, only addressed a small proportion of the total costs of providing hospital services and made comparisons with other jurisdictions difficult. The department has also assured me that in its 2003-04 annual report it will improve considerably the agency’s reporting of achievement against organisational aims and objectives, addressing another of the Auditor-General’s concerns.
Dealing now with the Menzies School of Health Research: the Auditor-General audited Menzies’ financial statements for the year ending December 2003. The Menzies School of Health Research became a controlled entity of the Charles Darwin University effective 1 January 2004. This will result in Menzies’ financial reporting being consolidated into the financial statements of the university. The Auditor-General identified some important accounting policies which will need to be addressed to ensure an effective consolidation of Menzies into the university. It was acknowledged that the alignment of accounting policies between the two entities was in the process of being addressed at the time of the audit. An unqualified audit opinion was issued by the Auditor-General. Had there been significant audit issues, a qualified opinion would have been provided.
Madam ACTING DEPUTY SPEAKER: The question is that the report be noted.
Dr Lim: No.
Madam ACTING DEPUTY SPEAKER: Did you wish to speak to it, member for Greatorex? You were almost too late.
Dr LIM (Greatorex): Madam Acting Deputy Speaker, I thought there would be more speakers on the other side of the House. I would have thought that the minister for Education might have spoken about it as there is something in there about LATIS, and the minister for Police might have spoken about it as it has something to do with police, but obviously not.
As the newly-appointed shadow Treasurer, I thought I should have a look at this report more closely. As a member of the Public Accounts Committee for some time now, with my new responsibility, I will be scrutinising these much more closely than before.
The Chief Minister was reasonably happy with the Auditor-General’s report. She quickly glossed over a few issues that he raised. I thought I should go through this in a bit more detail and raise some of the issues that have already been written about by the Auditor-General.
First, a couple of comments that the Auditor-General made on page 10 of his report:
This is a good report. This is great, and from that point of view, at least we can be assured that there are no financial losses. But, he then goes on to say:
The PAC has been looking at this in greater detail, and we are obviously receiving internal audit reports, and as a result of this comment made by the Auditor-General, I will definitely be looking at this more closely.
With regard to the Treasurer’s Directions, and the Chief Minister made some comment about that, the Auditor-General was concerned and said:
They included the register of losses, the register of contingent liabilities, and the register of fees and charges. When you think we are now moving to accrual accounting, these things must be noted very conscientiously, otherwise accrual accounting will fall over.
In respect of procurement matters, he mentioned that instances were noted where procurements had not been gazetted, and obviously that is not the way to go.
I come now to specific departments. We heard the Minister for Health saying that things are not too bad and that he is not too concerned about it. However, obviously the key finding by the Auditor-General that anything in excess of $250 000 needs ministerial approval and was not followed through is a concern. More significantly, when it comes to the delivery of services by NGOs, the Auditor-General was quite concerned. He mentioned that there were some weaknesses in the Department of Health and Community Service’s internal control systems:
This was written in the August 2004 report. I recall this government getting up some two years ago applauding the Bansemer Report, how good that was and how all the recommendations contained therein were going to make the health system so much better. Well, the Bansemer Report was tabled in this House at least two years ago, and, in that report, it made the same comment about the weaknesses of DHCS and the internal control systems of NGOs – two years. It appears from this report that not much has been done. I believe it is important that this government starts to look at that a lot more closely. If not, how are they going to be able to maintain a close watch on the funds that it provides to NGOs?
Staying with the Health department, let me draw your attention to another matter that concerned me when I read through this document. Let us hope I can find it quickly. On page 47 of the report, I draw the Minister for Health’s attention to it so that he can get his department to report to him. In it, the Auditor-General has this to say:
At the bottom of the table, ‘comprehensiveness of reporting on efficiency of DHCS services’, it says, ‘cost of activities not reported, $244.464m’. I mean, cost of activities not reported, $244.5m. Now, if you have such an amount of money unreported, it is no wonder you cannot keep a clear overview of what is being spent in the Health department. It is no wonder you have a $30m to $50m blow-out in your budget if you do not control, or you do not know what your costs are. This is how bad that is, and that is only under the output group, Hospital Services. When you go to the output group, Community Health Services, there was $67.943m of costs of activities that were not reported. When you combine the two together, it is $310m worth.
The Auditor-General has said quite clearly that DHCS should develop and report measures of costs that more comprehensively address all the costs of providing health services. When the Auditor-General then provides us with his comments to the department for a response, what a limp-wristed response we have. This is the DHCS’s comment:
Madam ACTING DEPUTY SPEAKER: You can continue.
Dr LIM: Okay. When you go to the Department of Police, Fire and Emergency Services, there are issues. For instance, the Auditor-General said, where he is talking about two key performance issues being members of the public aged 18 years and over who felt safe or very safe at home alone during the day, and members of the public aged 18 years and over who felt safe or very safe at home alone after dark. His comments was:
The Minister for Justice and Attorney-General now keeps putting his political slant on all those wonderful crime stats that he puts out. When he gets to the actual police stats, we start to question whether they were really accurate or valid. The Auditor-General says when there are differences in comparison from year to year, there are no explanations provided to explain the significance of the result. Is it because the government has given the police the order: ‘Get the results for us, let us put the political spin in, and we will do the interpretation and you, the police, do not’? Surely, you would expect the professionals to do the right thing and analyse the results from their contacts rather than providing it just as a political analysis and putting out results in a political perspective.
Those sorts of comments are scattered right through the report on the NTPFES. For instance, at the bottom of the page in regards to services to judicial process, it says:
You can divert all the juveniles who come to court to a diversion program, but are you getting any positive outcomes from that? Nobody knows.
The Auditor-General also made the comment:
I will read that again; that is important:
So we are using very rubbery figures:
With all that critical comment made by the Auditor-General, the police department’s comment was that it agrees to and accepts the recommendations in the report. They accepted fully that what the Auditor-General said was, in fact, correct.
I am glad to see that the DCIS report was relatively good. It was a portfolio that I had just prior to this week and, even at estimates, I found that DCIS had been performing reasonably well. I congratulate them on receiving a clear report from the Auditor-General.
With regard to DEET, the issue covered by the Auditor-General is about LATIS. As I said, the concept of LATIS was to improve student access to information technology to improve learning outcomes by transforming, enhancing, enabling and amplifying education programs to user of the technology. I believe that has been achieved over the last three and a half years. Initially, the program was designed to provide training to teachers as well in government schools and to provide access to the Internet for all schools in the Territory.
I note that the government has increased the bandwidth, which obviously is necessary to enable all our students and teachers, who now have their own laptops, to access the Internet. I think the bandwidth should continue to grow, because as people continue to use the Internet the demand will definitely grow and the bandwidth must be made freely available. What is a pity is that the bandwidth has been divided; one larger section for government schools and a smaller bandwidth for non-government schools. It would be easier to aggregate the lot and let the whole lot then use the bandwidth as they see fit.
The Auditor-General’s report does not give the government a clean skin. There are issues there, particularly in Health, apart from the Metis consultancy that the Leader of the Opposition commented on earlier, we are still waiting for the Auditor-General’s report on that. I would have thought it would have been ready to be tabled in this Assembly’s sittings this week. Unfortunately, not. The greatest concern I have is about issues that were raised in a report done by Bansemer two years ago that has not been followed through. Then we have the cost of activities not reported to the value of something like $310m.
If this government is doing it properly, if the Health department is being managed properly, then we should know all these figures and what you have done with that money. Without it, we just do not know. We keep saying they are not managing properly, the patient outcomes are not good, and with expenditure of $310m without knowing where it has gone, obviously, you do not know where your money is going and therefore, you do not know how your blow-out then occurs. A $30m to $50m worth of blow-out is huge. Then when you have $310m that you do not know where it has gone, obviously money gets lost in the system and this government keeps pumping more and more money in to the Health budget. When will it stop?
Apart from putting all this money in, which I do not think any minister would complain about, you would think that patient services would improve. When you have patients at the Royal Darwin and Alice Springs hospitals lying on casualty trolleys for days on end waiting for a bed, then obviously the money that is being spent, is not being spent in the right areas. You now have elective surgery cancelled on a very regular basis in Alice Springs. The whole of Alice Springs Hospital is quite dysfunctional. You have to ask the question: you are spending so much money, yet you are not delivering services to the community, so what are you doing with the money?
This is where this government’s economic performance, financial control, is not good. They do not seem to know what they are doing, and they do not seem to know how to get their act together properly.
I am sure that the new Auditor-General will be able to assist in lots of ways. I was part of the interview panel which recruited Frank McGuiness. I look forward to his continuing good work in the Territory and hope he stays with us for the duration of his contract, and provides government and opposition with full and frank advice, and we can talk much more about the Auditor-General’s report in the future months and years to come.
Debate suspended until after Question Time.
Madam SPEAKER: Honourable members, before we commence Question Time I would like to make a comment on the manner of debates that have occurred this week, and the public criticism that this Assembly has attracted in the media in respect of the behaviour and language of members, in particular last night’s adjournment debate.
It is extremely disappointing that the trend towards personal abuse and accusations has increasingly lowered the standard of debate and, of course, the public perception of all members whether they engage in that behaviour or not.
It should not be necessary to remind members that personal references not only lower the standard of debate but provoke retaliation leading to disorder in this Assembly. Such behaviour seriously diminishes the status of the Assembly in the estimation of the community.
I have spoken with both the Chief Minister and the Leader of the Opposition and to all Deputy Speakers. Members leave no other option than the implementation of Standing Orders 240A and 240 if they persist in unparliamentary and derogatory remarks.
Robust debate on bills is encouraged but personal attacks are not. I urge all members to exercise their privilege of freedom of speech with responsibility, and to maintain moderate language towards all members in this Assembly.
Members: Hear, hear!
Continued from earlier this day.
Dr BURNS (Lands and Planning): Madam Speaker, basically the Auditor-General’s comments in relation to Department of Infrastructure, Planning and Environment go to compliance orders. The Auditor-General, as part of the audit of the public account, each year conducts compliance audits of the large agencies so that an opinion may be formed regarding the Treasurer’s Annual Financial Statement, commonly referred as the TAFS. Members would be aware that the financial results of all agencies feed up to the Treasury where they are consolidated to produce this particular statement.
The Department of Infrastructure, Planning and Environment is one of the largest departments and, as such, the department’s activities are of significant importance to the TAFS. It is, therefore, critical that the activities of the department are compliant with the accountability and control requirements. Although agencies were not specifically mentioned as is the custom of the Auditor-General in these general reports, I am able to inform members that the department was the subject of an interim compliance audit in April of this year for the purposes I have just mentioned. The results of the audit revealed that the department’s systems and procedures were generally satisfactory. However, like any administrative system, there is always room for improvement.
The Auditor-General, at the conclusion of the audit, made a number of recommendations to assist the department to improve some procedures. I am advised the department has accepted and will implement these recommendations. The recommendations I have just alluded to include the format of internal registers, a more detailed reconciliation process of some minor trust accounts, improvements in reconciliations between ledgers and non-current assets, and the more timely attention of the writing-off assets when these assets are no longer available for use. Section 15 of the Financial Management Act dictates that an agency must ‘… have an adequate internal audit capacity’. Members may recall a former Auditor-General set out criteria that would demonstrate that an agency had an adequate internal audit capacity.
The operation of the Department of Infrastructure, Planning and Environment audit committee, the employment of a manager for internal audits, and the establishment of an internal audit program have been carried out. These are in the main, I and the department believes, sufficient to satisfy the criteria that an internal audit capacity exists. This leads me to the final recommendation I will mention that flowed from the compliance audit. The Auditor-General found that the internal audit function of the department had ‘… improved significantly from last year’s audit’.
However, as I have said before, there is always room for improvement and with this the department has accepted the recommendation that revolves around the structure of working papers and terms of reference for audits.
Ms MARTIN (Chief Minister): Madam Speaker, I thank the members for their contribution. As the Auditor-General has indicated in this August report, he is satisfied broadly across government that mechanisms are in place, that accounting of government agencies is being dealt with well. He makes some good points. My approach as Chief Minister and head of government is that we listen carefully to the Auditor-General. He is there to make government more accountable, to make our processes more financially responsible, and his purpose is to make sure that we all work together. I certainly appreciate what the Auditor-General has to say in his report.
As I said in my earlier speech, I thank Ken Simpson for his role as acting Auditor-General. I welcome on board our new Auditor General, Frank McGuiness.
Motion agreed to; paper noted.
Continued from 6 October 2004
Ms CARNEY (Araluen): Madam Speaker, I know that some of my colleagues also want to talk about this bill. I indicate from the outset that it is not opposed, but we do have some questions in relation to parts of it, provided the Attorney-General does not mind. I hope that having raised some questions, he will do us and Territorians the courtesy of providing us with the answers. We support the bill and the sentiments that underlie why the government has introduced it.
There is some concern about the possibility - and it is not put any higher than that - that someone could be innocently caught up as a result of this bill. We therefore ask what protections exist for innocent people? We use the example, and it is a fairly obvious one, which you have probably thought about; that is, if someone goes to a government auction, picks up a computer and there are images on it that they do not know are there, what happens to a person who is ultimately tracked by police with those images? In light of the bill in its entirety, those sorts of questions need to be addressed and the answers conveyed to Territorians, some of whom will be concerned. I am well aware, of course, that in the course of police investigations, they are targeting specific individuals, and they should. However, if someone has images on their computer that fall within this bill and they bought the computer without knowing they were there, we ask the question: should such a person be required to engage the services of lawyers at great cost to get all the way to court? They, of course, will not be pleading guilty to such an offence, but why should a person be forced to expend what could potentially be a significant amount of money on a defence? If you can answer the questions we put, that would be of assistance not only to us, but to Territorians.
We are with you. We want these people chased, hunted down, and locked up – absolutely - but we are concerned about some innocent people who may be caught up along the way.
We were interested that, as we understand it, much of the bill is based on Commonwealth legislation and we are the first state or territory to produce this legislation. Of course, we are a small jurisdiction and it is the case that, historically at least, we have waited for other jurisdictions to come up with an array of legislation because we have learnt lessons from those jurisdictions. We see it regularly in the parliament. It applies to legislation of the Labor government and it was the same with legislation from the CLP. It is not exactly cutting and pasting of legislation around the country, but the Territory has traditionally looked at what else is on offer and benefited from the difficulties and positives that some jurisdictions have had.
We just make the point. I guess you do not need to even answer it, but because we are a small jurisdiction and because of our history, we wonder whether it may have been better or preferable to wait an extra couple of months because I understand that other jurisdictions are working on this. If the Territory wants to take the lead, that is fine. There is nothing wrong with that, but historically we have always learnt from other jurisdictions.
I do ask whether the Criminal Lawyers Association has been consulted, together with the Law Society and other groups and, if so, what advice has been provided to you? We assume that the bill has been widely circulated, but I would like your advice on that.
They are the comments that I need to make in relation to the bill, but I understand other people want to make some others.
Mr MALEY (Goyder): Madam Speaker, firstly, I place on the Parliamentary Record that some of the criticisms that I am going to make of this bill are squarely laid at the feet of the current government and should not be taken to be a reflection on Parliamentary Counsel, who are creatures of instruction.
I can indicate that I will support any endeavours by this government to genuinely strengthen the tools which are available to our law enforcement agencies in dealing with those very small numbers of people in our community who have a predisposition to possessing child abuse material, child pornography, whatever sort of material comes into that broad category.
However, all legislation that falls to be dealt with by this parliament needs to be examined fairly and objectively to ensure that it is good law, and that the tools that are used to combat the evils of child pornography do not necessarily invade and endanger the innocent citizens who live and work in the Northern Territory.
Recently, it does not come as any surprise, the police descended upon a number of homes, churches and schools across Australia. I understand from what I gleaned from the papers that about 200 people were, or are currently, under investigation for possessing child pornography-related materials or images. Several names were released, one way or another, to the media and none of those people, I understand, had in fact been charged; they were only under investigation. Yet, the very public stigma which is attached to even being investigated resulted in four men taking their own lives. One man, I am told, left a note saying he was completely innocent, but that the public backlash amongst his family and friends was such that, in his view, unfortunately, and very sadly, he felt he had to take that action and took his own life.
I just make it clear that I have no sympathy whatsoever for those people who do actually engage in this serious antisocial conduct, like possessing and downloading that material. However, I am concerned that some people who are innocent will be caught up in this legislative net. Innocent people can become the victims here if the state’s power remains unfettered and, of course, those tragic consequences which we read about in the paper can occur.
There is a real life example right here in Darwin. Everyone knows about this and everyone is a bit nervous about it, but I am going to be up-front about it: our very own Bob Collins. Mr Collins’ reputation has forever been damaged by the allegations that have been made against him. Somehow, the NT News were informed, and I suspect by the police, though I note the official story from the police is that the press was merely driving by and perchance were in an ideal position to photograph the police seizing a computer from Mr Collins’ home. I am not sure whether it made the front page, but I do recall it certainly being in the news, and there is no doubt that this man’s reputation has been damaged forever.
Now, every time an article about Bob Collins appears in the paper, there is always a reference to the police investigation or the allegations. Everyone knows exactly what is meant. It is reinforcing the stigma which, unfortunately, is now attached to this man. The paper does not have to say anything further because the seed has already been planted. Even if Mr Collins is never formally charged, he will have to live with the stigma of a person who interferes with young Aboriginal children. There is no doubt that his public credibility has been completely and irretrievably destroyed. If Bob Collins is innocent - and I will assume that he is unless the contrary is proved - a huge disservice has been done to a man who has certainly enjoyed a fantastic public reputation as a man who was passionate about the Northern Territory. In fact, he co-chaired the Economic Development Summit with Neville Walker. This is a real life tragedy which has occurred in our own backyard.
The new legislative provisions increase the basic penalty contained in section 125B of the Criminal Code from two to 10 years and, quite frankly, I have no problem with that. Indeed, I am of the view that the increased penalty properly reflects the public opinion that such conduct is completely unacceptable.
The provisions should raise concerns in the minds of all reasonably-minded people. I will just go through some of them, in particular, before we move onto the committee stage were I can ask the Attorney-General to deal with them and seek advice if required. Proposed new section 125B(3) reverses the onus of proof. In other words, the defendants, once charged, I assume by the police, must then prove that he or she is innocent. That means running the gauntlet of a trial or hearing. The right to be presumed innocent forms a bedrock of a fair criminal justice system. It is a right that protects the people of the Northern Territory from the excesses of official power. Indeed, it is the rule of law. The presumption of innocence is one of the differences which separates our democratic society from more totalitarian regimes.
Commentators have often said that the incidence of legislation that reverses the onus of proof is more prevalent in an oppressive culture of prosecution and punishment, as apposed to a genuinely free democracy. Politicians simply make laws because they want to demonstrate that they are tougher on one particular category of offending than any other really smacks of abusing the trust which people have placed in them. The Martin Labor government have become the pigs in George Orwell’s Animal Farm. There are countries around the world that have constitutional guarantees which, quite rightly so, have been interpreted broadly to protect its citizens.
The prevalence of any type of offence is not a blank cheque for the legislature to erase all procedural safeguards. In fact, precisely when public emotion is at its highest, those procedural protections against the possible miscarriage of justice are most necessary. Some politicians deliriously make the connection between crime and our commitment to uphold human rights. It is a dangerous belief. Perhaps I have said that poorly, but some politicians, it seems, believe that, if you have human rights then crime, of course, is going to get out of control. They are not; they are mutually exclusive. There is no overlap and they can co-exist, and have co-existed for hundreds of years. It is a kneejerk reaction to engage in legislation which erodes those safeguards, which damages the procedural fairness which every person in the Northern Territory, Australia, and in most western countries, enjoy.
I was on the Internet yesterday having a flick through various legal sites, just hoping to see what people who really know what they are talking about say about this particular topic. There is a huge amount of material. I have printed some out and, also, with the assistance of the library, have obtained some articles. Many people talk about Canada being a similar democracy in terms of size and economic powers as Australia. They speak English, they are certainly allies, and many of their laws are similar. It is not uncommon for a court in Australia to have regard to a judicial determination which has fallen from the Superior Courts in Canada. They have a Charter of Rights over there similar to the Bill of Rights, I suppose, in the United States.
One of the sections of the Charter of Rights talks about, amongst other things, the ancient right – I will read it, and put it on the record.
I am reading here from an article on the Charter of Rights and Freedoms, and I am going to quote Chief Justice Dickson in a moment. The Supreme Court of Canada is a federal system; a number of jurisdictions bringing legislation to power which reverse the onus from usually firearms and drug offences, but you name it, people all round the world, jurisdictions, ill-informed legislatures have tried to reverse the onus and the court considers these, and generally speaking says it is violating this Charter of Rights.
The Canadian Superior Court has consistently ruled that the reverse onus clauses are a contravention of that fundamental right, the presumption of innocence. Dickson CJ explained the reasons the presumption against the use of reverse onus provisions. I quote from R v Oakes 1986, 1FCR 103:
The Chief Justice concluded - from a lawyer’s perspective, this is powerful stuff and I want honourable members to listen carefully to this:
Precisely what we have here.
Precisely what we have here.
In other words, they are charged. They run the gauntlet, if they are caught, at a trial or hearing. They live with the stigma until they get in the witness box and say on oath the reasons why they did not have a reasonable suspicion. An example might be that I am sure there are honourable members with children who are of an age were they might be surfing the Internet, and assuming for this hypothetical that one of the children of an honourable member in this Chamber downloads an image which is caught within the scope of this legislation. There could be brothers and sisters in that house, there is a mother and father, and there might be a couple of relatives. A father loves his son and is doing the right thing. He thinks he is instilling the right values, but his kid has done something stupid. The police track that clearly there has been a download. The computer is seized and every person in that household, until they discharge the onus that they did not have a reasonable suspicion that that material was there, will be charged.
Practically speaking, a father or mother do not necessarily go to the police and say: ‘That is his room, that is his computer’. Generally, they get told by their lawyers, and generally they say: ‘I do not want to be involved here; I do not want to put my son in it, but I am not going to protect him if he has done the wrong thing’. That is, they exercise their right to silence. Unfortunately, under this current regime, that person will be charged, the whole family is charged - dad is charged, the son is charged, mum is charged - it goes to court, and then they are given the opportunity to demonstrate they did not know about it.
Mind you, the media have mysteriously found out and happen to be there when the police are walking out with a computer, it is on the front page, and you are in the position where your public image and your reputation amongst the wider community is damaged.
I am not just playing hypotheticals. I cited that example to drive it home to members that I am being serious about this. Here are some real examples. I have an article from the police in Ontario and what has happened is that because of the wireless connection, which the age of computers currently enjoy, it is possible for people to drive around in a vehicle and download or access this type of offensive material through someone else’s computer. The people who are home have no idea that this is occurring. The police arrested a fellow in Ontario who was naked from the waist down, sitting outside a family home, looking at this type of material. These people are seemingly sophisticated, they are intelligent, they had marked which houses to park in front of to download this type of material. The owners of this computer had absolutely no idea this was occurring - absolutely no idea. Innocent people were charged and put through the horrific ordeal of having police raid their home before the police realised that people were parking out the front of their home and downloading this material. This is a real example that occurred in Canada.
This legislation really puts innocent people in the Northern Territory at risk of being caught by the same sort of conduct. The article is entitled Roving Hackers, and I have misplaced it, but it is about predators driving about in their vehicles using wireless networks. It is a simple case of the law not keeping up with technology.
Another incident occurred in New York and was reported in the New York Times on 7 November 2003: several hundred unsuspecting Internet users around the world, America and New York, recently had their computers hijacked by computer hackers. Effectively, a computer using a high speed connection is hijacked and the user would not be aware that the violation has occurred unless they are technologically fairly sophisticated. In a nutshell, an independent computer researcher came to the conclusion that most of the material came from Russia and if you are a receiver of spam or any unsolicited electronic mail, then you are someone who is capable of being caught by this legislation; that is, having the material on your computer without you even having any idea that it is there.
I am not going to whine and be critical without also suggesting some potential solutions. I have only spent a day looking at this and the government, with all its resources, you would think, would have better tools in the toolbox than this fairly clumsy legislation.
One of the examples is taken straight from the United States. They have made it an offence to use an innocent domain name. In other words, it is not just a matter of doing a search and finding ‘kiddyporn.com.whatever’. They made it a specific offence to have an innocent domain name and, that way, catching those people who are propagating material at the very basic level.
Another idea was in the paper yesterday. The new political party, the Family First Party, during the course of being interviewed in the Australian Financial Review on Tuesday, 12 October, were asked to outline some of the fundamental values which they stand for, some of which I have a fair bit of sympathy for, but one of them is an interesting suggestion, and would make sense at first blush. I will read here from an article re technology: ‘Family First policy of forcing Internet service providers to filter out pornography’. There is an argument that it is going to be expensive, but ultimately you have the Internet service providers, ISPs, having filters on them, legislation passed making it an offence for the stuff even to come through that. That is the nexus; that is the portal on which the stuff enters and then it is distributed to these people, to the people who, potentially, could be caught by this legislation. It is an idea worth considering. I accept the criticism from the technology industry that that may be expensive. To abandon that form of censorship at a basic level as a possible solution at this early stage is probably an error.
There is another possibility which would certainly create a procedural safeguard. There could be an amendment brought to this bill, or incorporated into the Criminal Code, which effectively prevents a person’s name being published until they are at least charged, and some were even saying, until they are even convicted of this type of offence; but at least until they are charged. The matter should be suppressed until the prosecution made an application to publish that person’s name or until they are either charged or convicted. You will not have the position of people like Bob Collins who have been, in my view, fairly badly served so far by the criminal justice system, if some of the safeguards I talked about existed in the current legislation.
I am mindful of the time so I will paraphrase. Section 125B(5): whilst a similar provision of clause exists in the current legislation, there are some important changes which are about to occur. This is the provision which effectively says, and I am really going to go through this by way of completeness, it is another procedural evidential provision. It says that in proceedings for an offence against this section:
It is important bit is that the certificate is admissible in court, in a court of law, and is prima facie evidence that the film, publication or computer game is child abuse material. So we have a Commonwealth public servant who makes this determination.
It is worth raising some practical issues here. The job should be left solely to the commonsense discretion of the magistrate. The current Attorney-General should be defending the judiciary, not undermining their power to make decisions. The current Attorney-General has a different role to the other ministers. He has a role which is slightly detached and more independent. His role is not solely to bring in legislation for the purposes of persuading a media person or a community that we are tough on this particular issue. He has a genuine role to make sure that good legislation is introduced and properly debated in this House.
This legislation is not a legitimate attempt to deal with the problem. It is aimed at the press; it is an attempt by this government to get some free publicity. It most certainly is a very lame attempt to deal with a real and serious issue. The Martin Labor government is abusing the trust which Northern Territory people placed in them at the last election. It is simply an attempt by the Martin Labor government to be seen to be doing something, rather than pragmatically dealing with this very serious issue. The increase in the basic penalties, arguably, is the only positive aspect to this legislation and, ultimately, the only reason why I will support the bill.
To the press, I have a challenge for those who are listening: do not be conned by Labor Party minders about this bill. Give your readers and listeners more credit. Territory people deserve more than this. Any reasonably-minded person will have concerns about some of the procedural provisions contained in this bill, the example being the reversal of onus of proof – that is the classic. The criminal law of the Northern Territory not only metes out punishment to perpetrators, but also protects us all from the excesses of the power of the state. The current Attorney-General of the Northern Territory is not discharging his primary duty of ensuring only well-considered and thoughtful bills become law in the Northern Territory. Instead, he has become a captive of political opportunism. It is no wonder that most sensible people have little or no respect for politicians or the institution of parliament.
Mr WOOD (Nelson): Madam Speaker, I thank the member for Goyder for his contribution. I am no lawyer but he raised a number of serious concerns. I have some concerns about why this legislation has been rushed through. It is not that we do not have legislation already existing. However, we do have a lot of media attention regarding the large number of arrests throughout Australia in regard to child pornography. The question is whether that, in itself, is a good enough reason to rush legislation through.
The member for Goyder has raised a number of issues which I could not have explained or understood as well as he has explained to this House. It would concern me that, if there are serious issues - and I am going to raise a couple of issues from a non-lawyer’s point of view - that need more debate, I ask that this legislation does not get rushed through. The legislation can come back in the late November/December sittings, and we do have legislation existing.
In the second reading speech, the minister said that there has been some requirements of urgency because of the large amount of publicity and the large number of arrests that have occurred. However, I find it difficult to believe that this legislation is changing a lot, except bringing in a new a definition, increasing penalties, and adding in an extra definition about torture and other matters. I would not like to see legislation delayed which might, obviously, put people at risk. However, I would have thought that our present legislation would still have plenty of room to move if such things occurred. Be that as it may, I would like to make some general comments, and then raise some issues where I have a concern.
Pornography is part of our society, that many would say denigrates women, especially, but also denigrates men. It is commonly called non-violent erotica by the pornography industry as a means of selling its products. They regard it as nothing more than adult entertainment but, the fact is, pornography is about sex shown as graphically as possible in as many ways as possible, and repeated as many times as possible. The only difference between the study on the sex life of the cow and pornography is that one is done for scientific purposes, while pornography is meant to arouse passions and, in the process, make lots of money for the manufacturer.
Some may argue that there is nothing wrong with pornography when it relates to adults, something I believe, at the very least, is arguable. However, this bill is about child pornography, a subject which is not arguable. It is a blight on our society and, as the recent arrests show, is not an isolated or rare matter.
I welcome the broadening of the legislation and the increased penalties that are included in this bill, but I have concerns about a couple of matters. First, I would have preferred to have seen the use of the term ‘child pornography’ left in the definitions. If that could not cover everything written in section 4(b) - and section 4(b) covers matters of engaging in sexual activity in a sexually offensive or demeaning context, or being subjected to torture, cruelty and abuse - why could we have not have added it to the term, ‘child abuse material’ so that when you read section 4(b), the definition would have been, ‘child pornography and child abuse material’?
The word ‘pornography’, and this is the reason I am putting that forward, sends out a message to the general public about a matter which covers, as I said before, sexual activity in very graphic detail. When we refer to child pornography, the public immediately recognises this for what it is: graphic sexual activity involving children. It is regarded as a very serious offence and one punishable under the full weight of the law. By removing that term and replacing it with ‘child abuse material’ I feel there is a downgrading of the seriousness of what is being referred to in the eyes of the public. ‘Child abuse material’ is a nice clinical or governmental term but it certainly does not convey, unless you read the definitions in the bill, what is being portrayed. By adding the words ‘child pornography’ to the words ‘child abuse material’, the problem can be solved.
The other problem I have is that late last year we passed changes to the age of consent which meant that it was legal for two consenting people over the age of consent to have sexual intercourse. However, this bill says it is an offence to possess, distribute, produce, sell, or offer child abuse material, and you can be charged under section 125E where it says that a person who uses, offers or procures a person who is a child for a pornographic performance is also guilty of a crime. Under this law, a child is someone under 18 years. We also describe ‘child abuse material’ as material which depicts sexual activity in a sexually offensive or demeaning way and pornographic or abusive performance, meaning any performance by a person engaged in sexual activity, in a sexually offensive or demeaning way.
Minister, there seems to be a problem here. Your government, which lowered the age of consent last year to 16 years, is saying that it is all right to have consensual sexual intercourse at 16, but if you photograph, video, e-mail via your mobile phone, draw, or in any other way depict that sexual act, and even if you only keep for yourselves the video or photograph, you are guilty of a crime under section 125B and 125E. It seems to me that you can either raise the age of consent to 18 to be consistent with the age of consent, or you can lower the age definition of a child to 16 so that it is consistent with the age of consent. I would not like to see that as an amendment because such a change would, I believe, require community input and I, for one, would not be happy about lowering the age of a child to 16.
However, there is a problem that seems very strange and could put young people in gaol for doing something that if you are over 18 would not be an offence under this act. It seems that you can have sex and record it if you are over 18, but if you are 16 and you record it, you are committing an offence. I do not know whether I am seeing something in the act that is not there, but it certainly occurs to me that there is a real problem here. How many people have mobile phones that can take photographs today, or even a small amount of video? I would say it would be not uncommon for someone to stick the video or the mobile phone on the dressing table and film an act of sexual activity. Under this bill, because they are not 18 and over, they would be committing an offence, even though the government says they can be allowed to have consensual sexual intercourse because they are 16. Unless I am convinced that I am wrong on that issue, I certainly would have problems supporting the bill at the moment.
The other issue that I am concerned about - and the member for Goyder spoke about it far more eloquently than I could - is certainly an issue that would be of concern for many people. If someone borrowed my laptop and said they wanted to do some work on it and downloaded some child pornography through a chat room …
Mr Maley: Or they bought a computer at an auction and it is already be there.
Mr WOOD: Yes. … what is the guarantee that I am not going to be charged?
Mr Maley: You will be charged.
Mr WOOD: According to the member for Goyder, I will be charged. I have to show that I had nothing to do with that computer.
Mr Maley: That is right. I will have to run a trial for you.
Mr WOOD: That is certainly going to be an embarrassing time for me, I can tell you, or anyone else in our position that that could happen to. I know the act says:
It appears as though it is going to be your word against mine to some extent.
I have some concern about that, even though I realise, and I imagine the member for Goyder does, we are dealing with a very serious issue and we need to clamp down on this sort of material. The end does not always justify the means. Good legislation will not be good legislation if it entraps people who are innocent. It is an area that I have some concern about because it could well and truly trap the innocent unless there is either some changes to it or someone can show me that there are some guarantees that innocent people are protected.
Whilst I understand what the government is proposing, and I appreciate the briefing, Attorney-General, and I thank you for that, I did mention some of these things in the briefing, but I think I should raise them in public as well.
Rather than passing a bill that gives rise to these important concerns, we could have waited a bit longer. We have had bills dealing with this issue for many years, and we have decided in the last week or so that because of a particular matter that has occurred, we should tighten up the penalties and widen the definitions, but that does not necessarily mean it is good to rush it through.
It would be far better to wait a little longer and ensure that the legislation we pass does not have to come back for amendments later on, and that we introduce legislation in which people can have faith, that will do the job it is required to do, that is catch the people who are dealing in this sort of pornography, but at the same time making sure the innocent are not swept up in what we are trying to do.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I thank members for their constructive comments to this debate. I certainly understand the concern that it does cause members when we take legislation through on urgency. It does give you less time to have a look at the provisions.
I can say by way of some reassurance that development of this legislation by me and the agency did not start at the time of the current police operations. They are coincidental to presenting this bill in the House. We actually started work on this some six months ago, or even more, as a result of discussions in the Standing Committee of Attorneys-General. It was recognised in that national forum that this area of offending has changed in character quite significantly and, therefore, legislation dealing with it also needed to be updated.
What are we dealing with; what are the police going around now looking for; what is the pattern of this offending? That is what this legislation has to deal with. It is not a case of someone simply downloading this sort of material by accident from the Internet ...
Mr Maley: But the point is it could be. It is caught.
Dr TOYNE: No, the pattern that the police are looking for, and what we are trying to respond to through this legislation, actually in terms of acquiring this material, mostly it is bought off the Internet. It is acquired by buying it. In what the police would take as being strong evidence to progress to charging a person, they would be looking for evidence that there had been some purchase, or the use of a credit card or the phone calls to a particular distributor …
Mr Maley: You do not say that here. You do not say any material purchase.
Dr TOYNE: Let me make my comments and we can all talk about this in committee if you wish. In the acquisition of this material, it is a far more conscious process than simply surfing the Internet and suddenly you come across this site and down she comes. When the police are investigating the way in which materials comes to be on a particular electronic record, they will be looking at the hard drive evidence. They will be looking at when material came in, and where it has come from, what other transactions have occurred electronically through the e-mail record of that particular individual or computer. There has to be a body of evidence there. It is not just a case of finding the material and then that is solely the evidence that would then be taken on to support a charge and subsequent prosecution in court. This is the advice we received in terms of the type of evidence that the police would be trying to adduce to support the charging.
In regard to the actual production of this material, it requires quite specific capacity to do that. First of all, it requires an exploited child, which is an obvious feature of it, and there needs to be some evidence that a person had procured children for this purpose. There would also be, almost certainly, electronic production-type software and, potentially, hardware that would be supporting the fact that that activity was going on. There is a body of evidence beyond just simply the possession or existence of the child abuse material ...
Mr Maley: Your legislation says a person who possesses.
Dr TOYNE: I really want your forbearance because I only have 20 minutes to give you responses to quite a large number of matters.
Let us have a look at some of the issues now specifically that you have raised about this matter. What about people who come across this child porn material by accident on the Internet. Will they be caught by the legislation? The police do advise that the analysis of computer hard drives can indicate whether a person came across some material while surfing on the Net. In these cases, the data is then stored in their computer as a temporary file. Analysis of the hard drive can show whether the person subsequently saved that material to their hard drive or to a CD. In cases where the evidence only shows material is stored in a temporary file, this would be consistent with the assertion of the accused that they come across it by accident and were not trying to acquire the material permanently. However, analysis of the hard drive can also show whether the person was repeatedly accessing this type of material and, in this case, it might be inconsistent with the accused claiming innocence of a deliberate attempt to acquire this material.
In terms of the onus of proof, with the deeming provision within the bill, there is no derogation of the presumption of innocence in the bill. Rather, there is a requirement, where a particular item is found in a place a person has control over, that that person demonstrate their level of knowledge about that material. It is not true to say that a conviction will follow, despite reasonable doubt. The prosecution must still prove the case on a criminal standard, and I will give you a bit more detail of that. The proposed section 125B(3) requires proof that the child abuse material was, at the relevant time, in or on a place where the person accused of possession of that material was the occupier or concerned with the management and control of the place. Once that is satisfied, then it will be evidence of possession of such material unless it is shown the person neither knew, nor had reason to suspect, the child abuse material was in or on that place. That is not a new concept in law, as you pointed out. We used it in our drug house legislation as a deeming provision, and other jurisdictions have adopted, on a limited scale, those types of arrangements.
The prosecution is still required to produce their evidence and prove their case beyond reasonable doubt. There is no erosion of that requirement that the prosecution prepare a proper case and prosecute the matter in the normal manner. However, there is, by this law - and I take the view that this stance is supported by the broader community - a requirement that a person found to be in possession show that they have no knowledge of the material.
In order to demonstrate the requisite lack of knowledge, they will have to demonstrate, on the balance of probabilities - that is, to the requisite civil standard - that they had no knowledge of the material or had any reason to know that it was in or on the premises. That might give you some more detail of how it would actually be played out in a hearing.
This bill has not come out of a vacuum. In fact, the Commonwealth enacted similar provisions in their Commonwealth legislation earlier. The legislation before us today is both commentary to and consistent with that Commonwealth legislation. Commonwealth legislation passed in August expressly prohibits the use of telecommunication devices to carry child abuse material. The Territory legislation is about possession and manufacture of such material, as well as distribution. Territory police will have the ability to charge offenders, either under Commonwealth or Territory legislation, or both, as the situation demands. The Territory legislation has picked up on the Commonwealth use of the terminology concerning data.
I will quickly refer to the existing legislation which the member for Nelson felt was covering the situation at the moment. It absolutely is not! At the moment, in our Criminal Code, we have section 125B, ‘Possession of child pornography and certain indecent articles’, where it refers to child pornography or an article that is in an indecent article by virtue of section 125B(6) and so on, which gives the definition of what an indecent article is. That carries two years imprisonment or a $20 000 fine. A person who sells, offers, or advertises for distribution those types of materials - again, that is a 10 year sentence for distribution maximum, and a maximum fine of $100 000.
Those definitions in the existing legislation simply do not cover the type of activities that we are now seeing based on the Internet. Our X-rated shops are really rapidly becoming a thing of the past regarding adult pornographic or restricted material - let us call it. The main game now around the world, by far, is the global Internet-based distribution of this type of material. It has progressed well beyond seeing sexual acts performed by adults or children. We are talking about material that actually demeans, tortures, or sexually abuses kids on a global scale. The actual production of these materials could be happening in any country around the world. In fact, the servers that underpin the distribution network that is subject to the current police operation nationally are in Russia. You can run these networks from any part within the global Internet. You can produce material and feed it into that network in any part of the world. We have a very sophisticated and totally new pattern to deal with now, and that is the reason why we have moved from the older definitions of ‘child pornography’ to ‘child abuse material’ to reflect that we have a much wider abusing of kids and wider range of material that is being distributed and used.
Given that there is a strong body of research that says that the accumulation of these types of materials by an individual has a strong connection to the potential to subsequently abuse children as a result of that association and to prepare children for abuse, we have a serious connection there that we have to try and break.
I hope I have made a case that we do need to reform our current Criminal Code. It is totally inadequate to deal with these modern offences. We had a case in our own Magistrates Court where the magistrate had to throw out a case because they could not prove the knowledge of the material that was found at that person’s premises - 10 000 images I think of this type. However, because the person claimed that they did not know the stuff was there, there was nothing under the current provisions that would allow the prosecution to succeed. We are also very mindful that we want to see a better rate of success in prosecuting these types of offenders.
I do not want to see a situation continue in the Territory where the majority of offenders simply walk out of court because of the inability to make that connection between the existence of the materials and their knowledge of it. That is the reason behind the deeming provision.
In terms of who we have talked to about this, we certainly made sure criminal lawyers and the Law Society had a copy of the bill and a chance to respond to it. They did not ...
Mr Maley: They did not respond to it?
Dr TOYNE: They did not respond for whatever reason; I do not know.
The member for Goyder raised the matter of accused people having their names put around the community. I totally agree that it is incredibly unprofessional practice by the police to be rushing off to the NT News and passing a bit of info to them. I do not think we can do much about that through legislation. You can certainly do something through the police commissioner and the Police Standing Orders and the professional standard of our police in maintaining the integrity of information that is coming to them in an investigation. I would not say that is a particular feature of the Territory Police Force as distinct from police forces around the world. It is simply an ongoing operational and professional issue that they can be trusted to keep the confidentiality of their investigations.
The problem with saying all right, in this case let us make a succinct provision within the act to say that you are not allowed to give out those names - well, if you did it for this offence, why not for sexual abuse of kids, or for rapes on women, or quite a number of things? It is difficult to draw a fence line around an offence category. It is more about the professionalism of our police and that is something that definitely needs looking at. I absolutely share your concerns about bandying people’s names around as accused of these sorts of crimes. It is a highly emotive area, and the public always responds very strongly to them.
The reasons for urgency is we took advice of the actual time which the offending would be deemed to have occurred in terms of possession and distribution of such material. The police operations are in progress at the moment and they are continuing. The offensive possession, on our advice, commences when the material is downloaded and accessed by the alleged offender and continues on right through to the point of discovery by the police. The offence of distribution is evidenced potentially by the hard drive evidence as to when that material was passed onto another recipient. There is a possibility that as the investigations continue that it will overlap with these new offences becoming active in the Northern Territory. We would like to have them there as soon as possible. Even if it does not impact on the current police operation, it is very obvious that there is a wide problem and we would like to have the laws in place as soon as possible, hence our request for urgency.
I have mentioned the use of child abuse material. The issue raised by the member for Nelson about the use of the age of 18 rather than 16 - there are many age thresholds used throughout our statutes. We are allowed to drive at a different age than having sex to being eligible to vote. It is not unusual for thresholds to differ according to statute. In this case, there is a strong need to align the 18-year-old threshold to our child protection provisions because in many cases, if there are children being abused as part of the production of this sort of material, we want it to be aligned with provisions in the Community Welfare Act and Juvenile Justice Act so we have the ability to align responses under that legislation to the discovery of these types of offences.
The other reason we have argued for a higher age threshold is that we believe that the level of exploitation of children has an additional level over and above sexual assault on an individual child. You are not only subjecting children and youths to abuse in many dreadful forms; you are then demeaning them further by distributing that material in a global network to other people to further encourage abuse of children.
In the law, there are always issues about the relative seriousness of offences. We believe this is a more serious level of offending than sexual assaults on kids because you have another level of commercial and public exploitation of what has happened to the child as well as the offence.
Motion agreed to; bill read a second time.
In committee:
Bill, by leave, taken as a whole.
Mr MALEY: Madam Deputy Chair, just a procedural matter, because it is a very short bill, I propose to ask a number of general questions, then draw the Attorney-General into specific provisions during the course of debate, if that is suitable.
Dr TOYNE: Yes.
Mr MALEY: Minister, you said in response to some of the points I raised that the type of offending that this legislation is aimed at - and remembering there is a huge spectrum of offences - is repeat offending, and the irregular accessing of data contained on a hard drive. I accept that is serious conduct. That conduct is precisely what legislation should be aiming at. However, you would have to agree that a literal and simple reading of the legislation says ‘… a person who possesses’ and there is a comma, so they are disjunctive. Therefore, a person can possess one photograph on one computer in their house and that would still technically be caught by the net created by this legislation. Isn’t that the case?
Dr TOYNE: It would be almost unthinkable that that person would be charged by police if that is all the evidence they had. I have made the point that the police will move to charging a person and triggering a prosecution on a body of evidence. If they went to the DPP and said: ‘We have found a dirty photo of kids on this person’s computer’, and that is it. I know what the DPP would probably say to that.
Mr MALEY: You have just used the phrase ‘a body of evidence’ required, and there is nothing wrong with that. You have not used that phrase in this legislation. You are saying that the Northern Territory community has to trust the exercise of this prosecutorial discretion to prosecute or not prosecute, that is, the police make that decision because, technically speaking, you are still caught by this legislation. You are confirming that ‘yes, that would technically be covered’ but you are saying the Northern Territory people now have to rely upon the arbitrary and unable to be reviewed decisions, prosecutorial discretion, to prosecute of not to prosecute, you are saying that is the only safeguard that we have. Is that what you are saying?
Dr TOYNE: Right across our laws, there is always going to be a hypothetical case where you say, if all of this sort of stuff led to a very extreme position, maybe that might happen to someone. Also on the advice that I have just received on this, another issue here is that one photograph might be enough if, say, it was a picture of a child having its head severed from its body. Someone may feel that they want something as appalling as that to have in their personal files. Really, the prosecution of cases is not ad hoc, it basically occurs through criteria. The charging by police of different alleged offenders is also according to form criteria. It would be highly unlikely that a case based on relatively trivial evidence would move to charge and then to prosecution; highly unlikely.
Ms CARNEY: You said, in relation to the Bob Collins case, that there was a link between the media and the police relating to …
Dr TOYNE: No, I did not say that, the member for Goyder did.
Ms CARNEY: Sorry?
Dr TOYNE: The member for Goyder said that. I did not specifically say that. I certainly said that leaking information by police to the media …
Mr Maley: Madam Chair, I …
Madam DEPUTY CHAIR: Excuse me, member for Goyder, allow the minister to respond.
Mr MALEY: Madam Deputy Chair, as a point of order, I have been misquoted. I did not assert positively there was a leak. I said, in a nutshell, the objective circumstances made it fairly obvious that there was a leak. I do not have any direct evidence of a leak, and I will read out what I said: ‘… somehow the NT News was informed’. I have not asserted it was by the police. I said: ‘I suspect by the police, though I note the official story from the police was that the press were merely driving by and perchance were in an ideal position to photograph police seizing the computer’. So, at no time have I have made the positive assertion, the direct assertion of fact, that the police leaked. They are the objective facts that we know and I ask the Attorney-General to withdraw that assertion.
Dr TOYNE: Madam Deputy Chair, I was not trying to make an issue of it at all. I am simply saying that I certainly did not make the connection with the Bob Collins case. What I was saying is that it is an issue of professionalism amongst the police that details of investigations that are active, or charges that may or may not be laid against individuals, should not be shared with the media and the general public. That is simply a professional issue for our police force. The person who is most responsible for maintaining those professional standards is the Police Commissioner. That is the point we are both trying to make. I certainly was not trying to verbal you. The point I wanted to make about that is that it is a matter of operations and a matter of professional standards, a matter of the protocols that the commissioner manages to put into place in the police force.
Mr MALEY: Can you confirm whether it was considered at any time to have a specific offence incorporated into this provision, section 125B, or some sort of subsection, making it an offence for a law enforcement agency or any person to deliberately leak the name of a person under investigation?
By way of background, the Commonwealth have several pieces of legislation which have precisely those type of provisions. I have to be careful what I say, but I know the Anti-Corruption Commission have been conducting hearings up here. That is not in the press. There is a specific provision which prevents anybody - and the Bob Collins case is a classic example - disclosing that name. You talked about offences difficult to create for this piece of legislation by itself, but was it ever considered?
Second, can you articulate again why you say, in regard to the very damaging public stigma which attaches to these types of allegations - we heard the allegation across the Chamber yesterday about somebody - these damaging allegations are not the subject of tighter controls to protect people who are genuinely caught up innocently in the net?
Dr TOYNE: There are two issues here. One is the issue before us, which are the specific offences we are trying to put on to our body of law regarding these …
Mr Maley: No problem with that.
Dr TOYNE: Okay. The second issue is the one you have raised of the rights or the interests of the accused. I believe if that was to be examined - and it may well be something we can look at - it would not be under this bill or the Criminal Code, it would be under the Police Administration Act, and whether you wanted to legislate to actually make …
Mr Maley: Did you consider that process during the course of drafting this over six months?
Dr TOYNE: Not as part of the development of this bill. What I am flagging to you is that we can go back and have a look at the existing provisions. I am sure the Police minister would be happy to have a look at that for us. If there is not sufficient imposition of that condition on police going about their duty, perhaps we can look at it. Frankly, I would be surprised if there was not somewhere in the police regulations or the legislation, the need to maintain professional confidentiality about the details of cases. I certainly know that, in any dealings I have had with the police, it is of paramount importance in their minds. I am sure, from one sphere or another, there is that expectation within our police force. Whether it is enshrined in the right way, we can have a look at. I am sure the minister will.
Mr ELFERINK: Madam Deputy Chair, I very quickly make a few observations regarding this particular material. The concentration of the discussion so far has been on computer hard drives and tracing accesses through, I imagine, cookies and such things in relation to how often web sites have been accessed.
The first time I came across child pornography was when I was a policeman. At that stage, it was only an offence to sell and distribute, but it was not an offence to possess. We went through the ignominious process of having to return these particular items to a dreadful fellow by the name of Paul Conrad, if my memory serves me correctly; it is a while ago. As a consequence of some of the reports I put in - and I imagine other reports through the police force - the Criminal Code was changed to what it is now. Subsequent to that, I ran into some other pornography using kids whom, I would guess, were about 13 or 14. It was all homosexual stuff and I went off to the pathologist and said: ‘Dear Mr Pathologist, please give me a statutory declaration which says these kids are about the age of 13 or 14’. The pathologist was incapable of saying absolutely and clearly, and beyond reasonable doubt, basically, that these kids were of that age; they could have just been a young looking adult.
Therefore, we had to go through the ignominious process of returning that material to the particular owner – very frustrating, I have to say.
Dr Toyne: Score: zero out of two.
Mr ELFERINK: Yes, zero out of two. Therefore, I have great sympathy for this legislation. I am concerned, because of reasons articulated very well by the member for Goyder - and I know you are mindful of them minister - it is not only computer hard drives that this stuff exists on. A simple compact disk can contain 10 000 images quite comfortably. In fact, to illustrate the point, I have just placed a compact disk on the Speaker’s desk and, essentially, if she were to come back here, into her possession.
The transportability of this sort of stuff, placing her in possession like that, she has to be able to explain how could that compact disk, if it had this particular material on it. I presume it does not, it belongs to the Compaq company - geez, I hope it does - but if this material is now found in her possession, so she sits down on a chair, in come the police with a warrant because they were acting on information that they had anonymously received - that is, I telephoned them anonymously - and they grab the compact disk off the desk in front of her while she is sitting there, and in 20 minutes time she has to explain how she ended up with possession.
One would hope that there is a whole bunch of external factors that work in these instances, and that the evidence surrounding the situation would be indicative of the balance of probabilities argument, where she can say, ‘I do not know where it came from, I have never seen it before’. However, you can understand that the transportability of this sort of material is very high. We had this debate some time ago, in fact, prior to the change of government, in relation to DNA evidence, when people were worried about DNA turning up on cigarette butts at crime scenes and such things. DNA can be introduced into a crime scene very effectively as can this material. I urge the courts, and this is more by way of observation than question for you, minister, to be very, very mindful of this.
As tempting as it is - and believe me, I know; I have seen this material and had to return it to the filth who peddle this stuff. I do urge the courts for the sake of protecting the innocent - I know that this bill seeks to protect the innocent in one way; but for the sake of protecting the innocent in another way - to show extreme restraint in the way that they deal with this material.
Once you are identified as a person in possession of this material and it is publicly known, in spite of the fact that you may not even have been charged with it, well, we have seen the death toll so far. None of those people, that I was aware of, had been charged, and certainly not convicted. It probably will not be the case but we will never know because there will never be their evidence available, so they will never be convicted; but I would hate to find that in this sort of swoop that the lynch mob mentality does not exist, and that the due processes of law are truly respected and regarded, and that the protections that you say are in this bill are actually adhered to by the courts.
If something like a transportable CD, or the compact disk that I just placed on the Speaker’s desk, finds itself in the wrong place by somebody who quite criminally is seeking to pervert the course of justice, but does it anyhow, then reputations are destroyed forever - absolutely forever. There is no coming back from even the allegation. This sort of allegation in the public domain is a lot like the old Stalinist allegation. You merely had to be denounced and off to the Gulag you went, and this is the social Gulag that these people go to.
I urge great restraint by both the authorities and courts in dealing with this stuff because the happy medium, or the unhappy medium in this case, that needs to be found, has to be very delicately balanced. I urge the courts which are going to end up using this piece of legislation to understand that and I am sure they will; but not allow mob rule to infect their judgment.
Dr TOYNE: Madam Deputy Chair, I certainly take the advice to heart that the member for Macdonnell has just given. In framing this legislation we have tried to balance, first of all, addressing the offence in its own terms, as a modern offence different in character to what is in our Criminal Code right now, which is totally inadequate in terms of the description of the activities that it is presenting. I guess the balance point we are trying to find is to get a better rate of conviction addressing these activities, because we are hearing widely around the community that people want this dealt with. I do not think anyone is telling us to back off, do not worry, and that they are not really nasty people after all. We are always aware that you do not want take innocent people into attempts to catch those who are genuinely committed to this type of terrible activities.
I can only say that with the deeming provision, which is the key area that you are particularly worried about, I can give you an undertaking that we will closely monitor how this is used both by the police in terms of decisions on whether to charge an alleged offender, and by the courts when they hear and decide the evidence as to whether that level of proof on balance probability. As part of this search for balance, we have adopted a standard of proof that should give a person a fair chance.
The other thing to keep in mind is that there is a whole continuum of the strength of evidence that would potentially be involved in those matters. You could have a single item of evidence, like the example the member for Goyder cited, like a single photo. Yes, that may, in an extreme case, be enough to attract a charge. However, in most cases, if it is not of that extreme type that I hypothesised back to you, it would be most likely that the police would say that a single image is not going to be a strong enough case to proceed to charge.
At the other end of the spectrum is where there is overwhelming evidence not only in terms of images or objects that a person has, but a whole trail of how they have acquired it and to where they have distributed it. Anywhere in between, it is up to the police and the courts to judge where the matter lies on that continuum of evidence and there will be a point at which they decide not to charge and a point above which they will charge. I am sure the DPP will have a lot to say in that in finding that decision point.
In all honesty, they are matters you cannot enshrine because that is the professional judgment of people whom we pay a lot of money to make those sorts of judgments.
Mr MALEY: Minister, before I move to my last general question before we go to the specific provisions, if I am may put this on the record, with all due respect to you, you genuinely do not understand how this works. You genuinely do not grasp.
Mr Ah Kit: You are the expert at running away.
Mr MALEY: Well, okay. It is very interesting that a minister having even less grasp of fundamental procedure would chime in.
Madam DEPUTY CHAIR: Member for Goyder, withdraw the aspersions you cast on both ministers. We have had discussion in this House today about not personalising attacks on members. I am more than happy to be very liberal in the broad discussion on the merits or otherwise of this legislation, but you have just stepped beyond the bounds and made it personal. I ask you to withdraw.
Mr MALEY: Okay, I withdraw any offensive tone that I may have used. However, if I can just say this: clearly, from what you said then about the balance of probability and the fact that you have decided that was the appropriate level, and the way you articulated the reversal of onus, this subsection 3 demonstrates to any criminal lawyer that you clearly have no understanding as our Attorney-General of how this provision practically operates.
If you think even for a scintilla of a second that your monitoring of the exercise of prosecutorial discretion and whether the police are going to lay or not lay a charge and what effect this reversal of onus provision is going to have is worth anything apart from a few hollow words in parliament, you are absolutely kidding.
I tell you what is going to happen: a person exercises his right to silence. A person says: ‘I do not want to talk to the police on the advice of my lawyer’. A person then says: ‘I am not going to get involved in this because there is a member of my family or a friend that I do not want to put into trouble. I am just going to stay away’. The onus being reversed means that the very fact that this material is on a computer within the house that this person is one of many occupiers, or the very fact that he is involved in the management or control of the house, means that he can be charged. Now, without that reversal of roles, that person would not be able to be charged unless the police genuinely conducted an investigation and had the evidence which certainly pointed to them.
It is going to mean more work for criminal lawyers. I had a chat with a fellow at lunchtime who works every day in this field and, quite frankly, it might be good for some criminal lawyers, they will make more money because more people will be charged. However, at the end of the day, it will be bad for the community to have the type of provision which is contained in this legislation once again enshrined into statute. That is a reversal of onus.
However, the general question I have relates to this. The bill refers to a defence for a member or an officer of a law enforcement agency to have in their possession some of this material. It also refers at the very back, at 125F, ‘the court must be closed when the material, the subject of the offence, is displayed’. Are there any safeguards in here which would protect a defence lawyer obtaining a copy of this material so that he can look at it and make his own subjective assessment and then engage an expert? Are there any provisions in here which would enable a person, properly represented by a legal practitioner, to enable that legal practitioner to examine the material as an officer of the court, make an assessment, and even forward it to an independent expert? Are there any provisions or safeguards which allow that to occur?
Dr TOYNE: I will deal with your last general comment first. It is pretty interesting that your shadow came in here and said that you are supporting the bill, and now you are saying: ‘Oh, this is all hopeless and I do not know what I am talking about’. Well, you had better have a bit of a conference before you come in here so you can actually get a consistent message coming across to this side of the Chamber. At the moment, I am really wondering what the CLP stance is on this bill; whether you are actually supporting it or whether you are opposing it.
In terms of the appropriateness of having a defence lawyer take a copy of this type of material, or copies, as part of their involvement in these cases, I would say that it would be totally inappropriate for that to happen separate to the police and the court’s handling of that material. There may well be a need for the defence lawyer to be party to familiarise themselves with what is on those images, but taking that material away from the court or police possession, I do not think would be appropriate. We are trying to contain this stuff, not let it disseminate even further out into the community.
Mr ELFERINK: I have been thinking about it, and the mechanics of this are difficult. Five guys living in a house. It turns out that on the computer there is whole bunch of child pornography on the hard drive. The owner of the computer is clearly an individual, person A. That person then is the subject of an arrest. A warrant is executed on the premises. Person A sees his lawyer. Lawyer says: ‘You have a right to silence, use your right to silence’. Person A is then charged simply because it is his or her computer. Person A then finds himself going to court and maintaining their right to silence. It is one of the most fundamental rights of our legal system. If the prosecution brought, the prosecution must prove. Person A continues to maintain their right to silence.
Evidence is brought that the computer was indeed that person’s, and is delivered in front of the house. Four other people in the house had access to the computer. A reasonable doubt exists at that point as to the person’s guilt or innocence. Person A continues to use their right to silence, so does the court record a conviction? That is the question. According to Dickson CJ, as outlined by the member for Goyder, where there are reasonable grounds - and this is the observation that Dickson CJ makes about this - there is a window of opportunity in that circumstance to record a conviction in spite of the existence of a reasonable doubt. That is the mechanics of it.
I believe the position that the member of Goyder and I am taking is that the courts must – must - allow themselves as much latitude as they think is reasonably necessary for the purposes of natural justice, or justice alone, so that such a circumstance is not allowed to develop. Once again, I urge the courts to be very careful with this stuff.
Mr MALEY: Madam Deputy Chair, it now is probably appropriate to go through the bill clause by clause.
Madam DEPUTY CHAIR: Member for Nelson, do you want to ask a question specific to a clause, or do you want a general question?
Mr WOOD: I want to go clause by clause, but I needed to check whether the minister was going to reply there, as he was getting advice.
Madam DEPUTY CHAIR: That was an urging of the courts, rather than the seeking of an answer.
Mr WOOD: I would like to ask questions about clause 4.
Madam DEPUTY CHAIR: Member for Goyder, which specific clauses do you want to - I am doing some housekeeping here.
Mr MALEY: Specifically, I have some questions regarding the definition of child abuse material, and then I have several questions regarding proposed new section 125B(3).
Mr WOOD: I also have questions regarding proposed new section 125B, especially subsection (1), and proposed new section 125E.
Madam DEPUTY CHAIR: We will now deal with clause 4.
Mr WOOD: I want to return to the issue I raised earlier regarding the use of the words ‘child abuse material’. I do not have a problem with using that term, but what I was trying to say was that if that was expanded to say ‘child pornography and child abuse material’ which, obviously, would cover (a), (b) and (c) of that section, for the normal person in the streets it retains a name that they can easily see relates to the very important issue of child pornography which, for many people, is quite repulsive.
By just using the words, ‘child abuse material’, we downgrade the seriousness of what we are trying to say. I believe if you added those two together, for the person in the street who sees or hears exactly what the government is trying to do, they would have a very quick understanding that we are dealing with offensive sexual activity, torture, cruelty and abuse. The term ‘child abuse material’, to some extent, has downgraded it in a way that does not reflect what the act is about as well as it should.
Dr TOYNE: I have notes on the relative use of those two terms to deal with the concerns of both of you. The term ‘child abuse material’, has been selected for two major reasons. The definition of ‘child abuse material’ covers material which depicts children in a sexual manner or context, and material that depicts children being subjected to torture, cruelty and abuse. The offence covers a broader range of material than would be ordinarily associated with the use of the word ‘pornography’.
On a practical level, the use of two labels, ‘child pornography’ and ‘child abuse material’ in the legislation would potentially create confusion, and lead to legislation which is more complex. There may well be material that depicts children in both a sexual manner and being subjected to cruelty. The use of the term ‘child abuse material’ means there can be no argument about which class the material falls into. Secondly, the term ‘child abuse material’ more accurately describes the material for what it is. It is material that depicts the abuse of children.
It is worth noting that recent amendments to the law in the United Kingdom regarding this type of offending have been criticised because they used the term ‘child pornography’. The use of the label ‘pornography’ does not accurately describe images that involve the systematic rape, abuse and torture of children. Child abuse is a term well recognised by the community as including sexual and physical abuse of children and is used in other areas such as in child protection, as I referred to earlier.
Just as a note, the Commonwealth legislation has two long definitions of both child abuse material and of child pornography material. Child abuse material in the Commonwealth legislation dwells upon torture, cruelty and physical abuse, whereas the pornographic material dwells upon sexual pose or sexual activity and also in the presence of those engaging in, for example, the depiction of a person under 18 in a room where two adults are engaging in sex. The Northern Territory bill will cover this because the definition, particularly paragraph (b) of the definition, ‘… depicts etc a child in sexual, offensive or demeaning context’.
Finally, the word ‘abuse’ in the term ‘child abuse material’ covers a range of behaviours that range from torture to cruelty to sexual depiction. It is simply that we considered ‘pornography’ was a narrower term. Abuse covers both pornography and these other elements that are increasingly coming into these terrible images that are being distributed.
Mr WOOD: I accept what you are saying, minister, but I would ask then, why could not ‘child pornography’ have stayed as representing (a) and (b) under the interpretation section, and ‘child abuse material’ referred to (c), so you would retain them. You broaden what you are trying to do if you retain the name. I suppose whilst we can argue about what you might say are technicalities, to me, I pick up something from the Australian Institute of Criminology and it talks about typology, a one line child pornography offending. It is a term that is used out there in the public. That is what I am saying.
To me, we are actually softening what is a serious offence by taking that word out of the system and that is really what I am arguing. It is a pity it was not left in there. If we had another issue regarding child abuse, why could that not be added and it is own interpretation be put in there separately?
Dr TOYNE: Madam Deputy Chair, I just simply say that the direction that the whole national reform is taking is to broaden the definition in response to the type of material that we are now seeing coming off the Internet. Child abuse means sexual abuse, physical abuse and psychological abuse, demeaning treatment of children; all of that is encompassed in the term child abuse and any material that depicts that is child abuse material. It actually is broadening the coverage of these offences.
Child pornography does not mean, for example, taking a video of a child being flayed alive by being whipped or something, which would be a physical torture - and believe me those sorts of images are involved in this trade. It is absolutely shocking and we want to capture it all in the net and make sure that no matter what type of abuse that child is being subjected to, it is captured by the definition.
We are very much in line with the Commonwealth legislation. We are in line with the overall directions that are being adopted by all the Attorneys-General in our national forum. Queensland and New South Wales have asked for our bill to model their bills. It is fairly rare that the Territory is actually leading national process, as the member for Araluen said. It is a bit unusual for us to be at the front of the pack rather than looking at what other jurisdictions have done.
We are in the pack to the extent that we are not stepping outside of the broad intent of the national forum. This is the direction that the national forum has agreed to take on these types of offences. I can only say that while child pornography is a very familiar term to the community and has that sort of advantage if it was to be used, so is child abuse. Child abuse is very well understood by our community and child abuse of any type gives us a very wide net to put around this material.
Mr MALEY: In fairness to you, minister, I see you have in front of you a copy of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act, a Commonwealth act, and you also have the Criminal Code. You are familiar with those, I assume?
If you look at the definition contained in the bill which was assented to in the Commonwealth Parliament on 31 August 2004, that is the bill amending the Criminal Code Act 1995, and you look at the current definition contained in Division 2, Offences Against Morality in the Northern Territory Criminal Code, there are a number of definitions and the reference to child pornography and child abuse material is contained in there. If you compare that with the definition contained in the current bill, it has the one global definition which is:
Then it has the disjunctive, being separate and standing by themselves:
Can you explain, first, what conduct is caught by this broader definition of child abuse material under the new bill when you compare it with the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act, No 2 of 2004, and here is a practical example: would it clearly cover an image of a person who is child-like in appearance but is a person in excess of 18 years of age? Yes, I see learned counsel nodding.
How is that broader than the model contained in the Commonwealth legislation, and how is it broader than the definition contained in the current Northern Territory legislation?
Dr TOYNE: The provisions in our bill and the provisions in the Commonwealth legislation cover exactly the same ground; ours does it better. The drafting is more succinct. The issue about the age of under 18 or appears to be under 18 actually deals with a problem in prosecuting people who are in possession of material that might have come from another country. The difficulty is to prove that the apparent victim of the abuse is under 18 years of age. The key comes back to this offence that we are trying to counter, and that is that if the intent of the material is to depict an act in a way that it looks like it is being perpetrated on a child – you might have a very small adult who engages in a sexual act, but is dressed as a child, or is depicted in some way as being immature or a non-adult - then that is enough to underwrite the charging and prosecution under our provision and under the Commonwealth one.
When you read the Commonwealth one, you can see that the intent in the key provisions are exactly the same. The Commonwealth one reads to me as being very verbose and a bit repetitive in the way it is putting forward the definition. We have simply tightened the definition and made it more succinct. It is exactly the same proposition.
There is another point I want to make. I have been informed also that the bill before us is actually removing a current defence that is possible, which is in section 125B, which says that if the person depicted was over the age of 16. That is now no longer available as a defence, if the clear intention was to depict the person, or present the victim as being someone under 18, that underwrites the charge.
Madam DEPUTY CHAIR: We will now deal with clause 5.
Mr WOOD: I come back to what I think is a fairly important point. I do not believe I received the answer that I was after in the first debate. Section 125B talks about possession of child abuse material, and it says: ‘A person who possesses child abuse material is guilty of a crime’. The bit that I cannot understand - and maybe I am not hearing things correctly here – is that a child is someone who is under 18. As I said before, if two 16-year-olds are having consensual sex, they are both children because they are both under 18. However, our law says that they can have sex and, if they film, video or photograph that, that would be defined here under child abuse material. Child abuse material is engaging in sexual activity. So, if they are in possession of child abuse material, which could be in the form of, as I said, of a photograph from a mobile phone, are they not, therefore, in the case of an individual, liable to imprisonment for 10 years?
Dr TOYNE: If two 16-year-olds or 17-year-olds engage in sexual acts and then create an image of that sexual act, yes, they are in breach of these provisions. Again, in the weighting of the evidence as to whether a charge is laid or whether it is prosecuted, would depend on what the police made of their motives. However, once such images come into existence, they can be traded, distributed and so on. We are talking about the need to, I guess, protect people in these age groups from exploitation. We certainly would want to be discouraging the production of such records of sexual contact, even though the actual act of sex is legal under our age of consent provisions. I guess what we are saying to young people is that if you want to record your own sex life, wait until you are 18.
Mr WOOD: But surely, this parliament has given people the right to have sex. Why would someone who is 16 who has been given the right to have sexual intercourse be – I hate to use the word - discriminated against purely on age. Two 18-year-olds can have sex and, I presume, e-mail it off to their mates. Sixteen-year-olds cannot e-mail it because that would be distribution. They cannot photograph it because that would be possessing. If they wanted to sell it to their mates for a bit of a lark, that would also be an offence.
I believe we have a problem there where we have told children – well, I call them children – that they are old enough to have sex, but they are not old enough to photograph it. It would be …
Mr Elferink: They can star in a porno film, but they just cannot flog it off.
Mr WOOD: Yes. For a 16-year-old to actually face imprisonment if they e-mail images off to some of their mates, there is a real gap in the law there.
Dr TOYNE: I would have to say that making a visual record of your sex life and then mailing it off to your mates is certainly not an activity that you would commend to any one person, because where is it going to go from there? You end up …
Mr Wood: I am not commending any of that. I am not commending it.
Dr TOYNE: Essentially, if in the absolute privacy of their own lives, two people choose to record this activity between them and it goes no where else, who is going to investigate it? There would be no weight of evidence there that the purpose of that recording is to start to distribute that material in the way that we are seeing in these offences. If the police cannot work that out - you have used the example, okay, they make a video or DVD, or whatever it is, and then they rocket it off to their mates. Well, that is going way beyond serving their own personal private purposes within that relationship. They are, basically, putting that out as a deliberate distribution. I do not think that is the same innocent activity as two young people recording their own sex life. I do not believe that they are compatible in what they are motivated to do.
Mr WOOD: I just want to follow the line here. If two 18-year-olds were having sex and photographed that and sent it off to someone - their mate - is there anything illegal about that?
Dr TOYNE: It depends entirely on how they are …
Mr WOOD: All right, there is an offence under the Commonwealth act for putting it through communications. Say they decided to get some photographs and send them around to their mates. They are just photographs they are going to put on the wall – bit of a lark. I am not promoting this, minister, but what I am saying in reality …
Dr Toyne: I was starting to worry, Gerry.
Mr WOOD: Well, minister, the reality is that people will do this. The reality is that, on one hand, an 18-year-old person who is allowed to have sex, can possess the material and might even want to sell it. I am not sure that that is going to be an offence to another 18-year-old. However, a person who is 16 years old, who this government has allowed now to have sexual intercourse legally if it is consensual - well, all of a sudden, you have differentiated between what the 18-year-old and the 16-year-old can do. On one hand, you are saying that one is a child for certain purposes and, on the other hand, you are saying that you they are not a child because we are classing 16 as a suitable age to have sexual intercourse. But then, we are penalising them now for doing what they do at 18. The law is very ambivalent here.
Mr ELFERINK: I am also going to voice my comments in relation to this, because I came into this House when we omnibused 60 amendments to 60 bills. I remember I was somewhat ridiculed, both publicly and otherwise, for having the audacity to suggest that we should raise the age of consent to the age of 18. During the whole debate, the member for Brennan made an excellent observation. The observation was basically this: according to the minister at that time in relation to that debate, you at 16 could star in a pornographic film, but you had to wait two years before you could rent it from a video shop.
Now we are amplifying that absurdity and the absurdity is amplified in this fashion: now at 16 you can conduct any sexual act consensually – with the exception of bestiality and any sort of sexual act that will eventuate in grievous harm. So we are talking about some of the most wretched sort of sexual acts you could possibly imagine – well, wretched depends on who you are. The minister says from a moral perspective we would not encourage young children to send photographs of their sexual acts off to their mates or anything else like that. We are quite comfortable with the fact that they may engage in sexual activity which may include bondage - even possibly bodily harm in a limited way – all sorts of difficult sexual acts. We are quite happy with that; that is what innocent sexual acts are. Morally, we do not have a problem with that as a government. What we do have a problem with, though, is if the average run-of-the-mill sexual act is recorded in a fashion, then the simple possession of that afterwards is a heinous crime for which you can go to gaol for a long time.
The absurdity is trying to stagger - and this came up during that debate - the age of majority in different ways through different bits of legislation. We see it in the Juvenile Justice Act which is 17; in the age of consent stuff, which is 16; and in the Community Welfare Act where you are a child when you are 18. This piece of legislation is 18. It means that you get these absurd situations occurring.
The fact is that it is not child pornography to have sex with a person. In fact, it is not even child pornography for a 60-year-old man to have sex with a 16-year-old girl. However, it is certainly child pornography to have a photograph of that act, under these circumstances. It is just one of the clear absurdities when the age of majority is staggered all over the place through our legislation. It was one that I cautioned of at the time - and hallelujah! - here it is. I told you so.
Mr MALEY: To save the Attorney-General jumping up twice I have a question of a similar vein. I am not wishing to help you too much but when you respond can you keep it in mind. Perhaps your counsel has already picked this up and I suspect that they probably have: the picture still has to cause offence to a reasonable adult in the definition. It is not just a picture. I assume that you would have received that advice. The example my colleague, the member for Nelson, used is the young people between 16 and 18, two 17-year-olds, caught on a digital camera having a pash at East Point. However, from what you said earlier, are you suggesting for a moment that that is caught by this legislation? I am pretty sure you are not, but if you are, can you just confirm that.
If you are saying that is not offensive to a reasonable adult, can you explain to honourable members what conduct would be? Is it laying naked together, having sexual intercourse? Can you put it on the record what you think amounts to child abuse material within that definition?
Dr TOYNE: Let us round up; we have had three goes at this. First of all, there are two issues here. The first issue is the age of consent which is a decision we passed through this House last November. As you quite rightly point out, it establishes the right of 16-year-olds and over to have sexual relations, but that is not the focus of this legislation. We are not interested in the private sexual lives of 16- and 17-year-olds and what they choose to do in private between themselves. What we are interested in is any attachment between that sexual activity by people of those ages as well as any other age above them to not only engage in some sexual activity or abuse of other types, but to then attempt to accumulate images of those activities or distribute them.
There is no doubt that the provisions within this act could potentially pick up an 18-year-old who has produced these sorts of images and attempted to distribute them, send them to mates or put them up more widely on the Internet. It is not unknown for young people who are very familiar with the Internet not only to acquire large amounts of material of all different types, including abuse material, but also to contribute to distribution on the Internet.
We do not believe that we should make a provision to say yes, it is okay for 16- and 17-year-olds to set up a child abuse material network if you are trying to counter that activity within the community. There is a big difference between two 16- or 17-year-olds having a private sexual relationship and the activity of producing and distributing this type of material around the community. We want to capture the latter within the provisions of this act.
Having said that, though, there is no doubt there would be a breach of the law if they attempted to do that. The police retain discretion to charge and the DPP retains discretion to prosecute a charge. The circumstance of any individual matter will guide the use of that discretion.
Take your hypothetical of a couple of 16- or 17-year-olds who have just discovered free love - and good on them. I cannot remember it in my own experience, but I am sure it was exciting at the time. If the police, for one reason or another, are given information that a recording has been made, they have discretion; if it is obvious to them as reasonable people that the purpose of making that image was not to engage in a broad activity of distributing abuse material around the community. However, take another hypothetical at the other end of the scale: say you do have two young people who think they could make a quid at this and put together a production of a child abuse episode where they act as the abused child, depict themselves as younger than they are, perhaps - I do not know - do you really think that that should escape the provisions of this bill?
All the way down the chain, you have the police as reasonable people making judgments about what the real motivation was; and you have the DPP making a judgment as a reasonable person about what the motivation was. It would be most unlikely that if it was an innocent act between two consenting people of that age who derived pleasure from producing and viewing images of themselves having sex, it would be highly unlikely that would go to charge or prosecution.
Madam DEPUTY CHAIR: Members of the opposition, would you like to work as a team and decide which one would like the acknowledgement, or should I choose?
Mr MALEY: It is your call.
Madam DEPUTY CHAIR: Member for Goyder.
Mr MALEY: I will give a practical example here, and one which I hope never happens to anyone in this Chamber. Do you seriously think that the DPP or the police would exercise their prosecutorial discretion not to charge a member of this Assembly or a member of their family with this type of offence, having regard to the political ramifications of making or not making that decision? Do you not agree …
Madam DEPUTY CHAIR: All right, member for Goyder, I will pull you up there. I reiterate what I said earlier; that there has been a discussion in this House today that personalised debate to members of the Assembly is out of order. I am ruling that out of order. I am more than happy for you to ask the Attorney-General a general question about whether discretion would be exercise or otherwise, but when you point it to ...
Mr MALEY: Okay, I did not have to use …
Madam DEPUTY CHAIR: Let me finish. … members of the House, and personalise it, you will be out of order. Rephrase it.
Mr MALEY: Okay, I did not mean to personalise it. Here is a hypothetical. A high profile public figure, whoever they happen to be - and the political example just popped into my mind, it was not directed at anybody in particular - but someone who is high profile. I was a police prosecutor; if there is any doubt, you lay the charges, you say: ‘Let the courts decide’. It is the no drop policy with domestic violence. These things occur. Do you realistically think that the DPP or the police will exercise their prosecutorial discretion not to lay a charge if there is some evidence and it involves a high profile person? Do you really believe that that decision can be made independently?
Dr TOYNE: The Director of Public Prosecutions deals with thousands of cases where they have to use discretion. I am sure they would use the same level of discretion in the case you are pointing out. I just do not see where your drift is at the moment. On one part you seem to be arguing for discretion, and in another part you seem to be arguing against it.
Mr MALEY: I will make the drift a bit clearer. You may not have much experience in the public service until you landed this particular job, but do you realise that human beings, being what they will …
Madam DEPUTY CHAIR: Order, member for Goyder!
Mr MALEY: Okay, you may not have the experience - I will take that back.
Madam DEPUTY CHAIR: Ask the question legitimately and reasonably instead of casting aspersions. We are in committee stage.
Mr MALEY: Are you aware that the making of the decision to prosecute or not to prosecute, and the nature of the particular position of the person of whom that decision is going to made will be a factor, no matter what you say? Practically speaking, all the theory aside, it will be a factor. Do you agree with that?
Dr TOYNE: What you are talking about is life; that life has many factors. Every decision made by anyone in our community is affected by factors from life. There is no way you can legislate to take those factors into account. All we can do - and what we are doing - with the legislation in front of us today, is that you put the provisions into the statutes. That is the body of the law that we are then asking people to take up in the real world outside, and they have to weigh up those factors. That is why you pay good wages to our prosecution staff and to our police, and they make the decision. The DPP is independent. I have full confidence in his ability to use this discretion, and that of his staff.
Mr ELFERINK: I will tell you where the discretion disappears and evaporates almost instantly. It is when the father of a daughter finds a photograph of her and her new boyfriend, who is 18 years of age, engaged in sexual conduct; in fact, there are 20 photographs on the hard drive of the computer. The father of the daughter then says: ‘This is just not good enough’. I know that they can have sex at law, but they are recording this image on the computer that belongs to the boyfriend. The father goes to the police station and says: ‘I want this guy prosecuted for having pictures of my daughter’.
I will tell you that the practicalities of modern life are that, when the father of the daughter goes to the police station and absolutely bangs the desk and says: ‘I demand something be done’, and there is a clear breach of legislation, the police are going to prosecute. They are going to say: ‘Oh, no way – no way on earth, Jose, are we going to make this decision’. The father is ropable; he tells everybody who is ever going to listen. If the police do not do what he wants, he is going to go to the Ombudsman; he has told the newspapers; he is filthy about this violation of his daughter.
That then goes to the DPP. The minister is asking me to believe that this thing is running in the public arena - child pornography is the most serious offence that you can possibly commit according to this bill - and this father is screaming from the rafters that something be done. That is going to end up in front of the court. All the court is going to look at is the legislation and ask itself: does this matter quality for all of the points of proof raised by this? If this matter qualifies, and it will - and this is the part that I am really concerned about in this, and I just want to hear the minister’s comments on it for future course – with just the points of proof that matter, click, click, click, click; they fall into line; proceed to conviction. Under this government, that person will spend the next seven years reporting because they are a convicted child pornographer.
Dr TOYNE: I love the hypotheticals …
Mr Elferink: That is not a hypothetical, mate, that happens every week – it happens every week. I can tell you that now.
Madam DEPUTY CHAIR: Member for Macdonnell, order!
Dr TOYNE: I saw every episode. However, the general …
Mr Elferink: Do not be flippant about it, because it will come back and bite you.
Madam DEPUTY CHAIR: Order
Dr TOYNE: The general structure of the discussion we have had in the last 10 to 15 minutes is that you are throwing up a lot of examples of situations where this law could, potentially, apply; where, potentially, there is going to be discretion needed from the police; where, potentially, there is going to be discretion needed from the DPP; where, potentially, the courts have to use discretion in terms of penalties if the person is found to be guilty.
I have made my position pretty clear on this. You either trust the discretion of people who have carriage of various parts of the process, where there is an investigation; a decision whether to charge or not to charge; a checking of the evidence that comes out of the investigation; and the decision by the DPP – do you prosecute, don’t you prosecute? – and a decision by a court as to both the guilt and the level of seriousness of the offence, if it gets to that stage of a successful prosecution.
I believe that, right across the body of law that we work with, that we put through this House and becomes active in the Northern Territory, we always depend on the discretion available and the judgments that are made by the public officers who are charged with applying that law to our community. I believe that, while you can put forward a hypothetical situation that could say: ‘Oh, they are going to gaol for 14 years’ – well, I do not think so. There are plenty of checks and balances built into the way in which these matters are going to be handled in real life. Police, very often, do not charge either because they have the doubts of a reasonable person about whether the offences have occurred. They evaluate the strength of the evidence that they have been able to find about the existence or otherwise of that offending. The DPP, on a daily basis, makes judgments of this type. The evidence is put in front of the DPP or one of his staff. They evaluate that evidence and ask whether this is going to succeed as a prosecution. They might say yes, and they often say: ‘No, we are simply not going to prosecute’.
The whole core function of the courts is to evaluate the evidence around an alleged offence and to make a judgment about whether the alleged offender is guilty of that offence. And if so, what seriousness in terms of the mitigating/aggravating factors might be attached to that behaviour, what is the appropriate level of sentencing. No legislation we ever put through this House can take into account the huge number of contexts in which the legislation could potentially impact. We simply have to trust to the competence of our professional people in the justice system to make this sort of judgment of a reasonable person as called for in the definition in the current bill.
That is my response encompassing the context that you have been putting forward. I accept that you have every right to ask those questions and point out those areas. I really think you have to trust the professional competence of our people in our justice system to deal with that.
Mr WOOD: Madam Deputy Chair, I suppose I am looking at it from a philosophical point of view that we have created a rod for our back by having one age for consensual sex and one age for what is the definition of a child. On one hand we have the simple definition, you might say, called ‘child abuse material’, which is something depicting sexual activity, someone engaging in sexual activity. The problem we have is that there might be two people, 16-or 17-year-olds, who are engaging in sexual activity. We have now said that if a child engaging sexual activity is photographed, that is child abuse material, by definition. It is not just consensual sex that we have photographed. We have said that if you have sexual activity, it does not matter whether it is consensual. In this case, it does not define whether it is consensual or not; it just says, ‘16-year-olds having sexual activity that is photographed is classed as child abuse material’.
However, we are saying on the other hand that 16-year-olds are allowed to have sexual activity and they are being - and this is no moral judgment - penalised for something that parliament has allowed them to do, and they may do it in a very loving manner. But they are officially, if they photograph it, turning what could be a very loving relationship as being child abuse material. That is where we have some problems with the way we defined all this. You might say it is hypothetical but 16- or 17-year-olds have just as much passion as 18- and 19-year-olds, and they can get themselves into this particular situation.
I know, minister, you are saying: ‘Well, of course, the police would take into account, etcetera, etcetera’. However, regardless of all that, we have made an interpretation that really has, to some extent, demeaned those young people who might be in a perfectly good relationship, who just for the sake of fun have photographed something, handed it to their mate, put it on a wall. They are now, going by this act, committing an offence. If they were 18-year-olds the offence may not occur. Yet they are still having the same loving relationship.
We have a problem because of the way we have dealt with the difference between definition of a child and the age of consent. It might be hypothetical to you, minister, but I would say in this day and age, especially with the use of a mobile phone, digital cameras, video cameras, that it is certainly not off the planet. I think it is real.
Dr TOYNE: Probably the answer to your problem in terms of the concerns you have lies in the definition of child abuse materials. I will read it again just from the bill: it means ‘material that depicts, describes or represents in a manner that is likely to cause offence to a reasonable adult’. That is the key part of the definition. It is not the fact that an image of simple sexual activity between consenting 16- or 17-year-olds exists. That does not characterise it as child abuse material. It is the effect it has on a reasonable adult: does it offend a reasonable adult?
Clearly, you are arguing that if it is young love and with all the modern technology, two 16-year-olds choose to record their sexual acts, would that offend a reasonable adult? I do not think it would. It would have to have an element of actual abuse, of domination, or hurt in it; in other words, a non-loving element which offends a reasonable adult when they view it. That is the purpose of having that part of the definition.
If that definition is not fulfilled, if an adult is not offended by it, then it is not child abuse material and, therefore, will not come under this provision. I do not know if that offers you any comfort.
Mrs AAGAARD: Attorney-General, it seems to me that the kind of material being discussed sounds very similar to Commonwealth restrictions for R-rated films, which people can only watch and distribute if they are over 18. It seems to me that we are reflecting Commonwealth laws and in fact we would not be able to change them for people under 18 anyway.
Mr STIRLING: Madam Deputy Chair, I have listened closely to the member for Nelson and the example that he portrays of a genuine, loving relationship. My view of that - and he may choose to differ and I would be interested to hear his views on it - is if it is a genuine loving relationship, I do not think they are going to be out there flogging it to mates or giving it to their friends.
The type of situation that he described, I would have thought that in the context of that relationship, whatever they took would be kept very close, confidential, personal and discrete between the two. That is not to say someone else might not get hold of it accidentally, but that is not the situation you are describing here. I do not see that you can describe a loving relationship between the two, an act of mutual adoration, admiration, that they take this action and film it or take some record of it, that they are going to race out and give it to all their mates. That would not seem to be a loving thing to do.
I listened closely to what you were saying. I am trying to get across your argument, but it does not add up in the context of a genuine, loving, caring relationship between two individuals.
Mr KIELY: Attorney-General, many of us have been hijacked on our computers to porn sites. This happens. This is not an irregular thing. It has happened to me. I have noticed a disclaimer at the front of the site that says that all the models here are over 18. Is it an offence for people under 18 to be participating in the manufacture of porn films? We are talking about 18 and we are talking about pornography. Do these actors on these sites all have to be over 18? It is probably a US law and I do not know if it is an Australian law or not, but, once again, I question whether 16-year-olds are, in fact, allowed to participate in the making of a porn film in some other laws.
Dr TOYNE: Yes, I can clarify that. Not only do participants in the manufacture of images have to be over 18, they have to appear to be over 18 in the images. You could potentially have people who were over 18 performing the acts that are the subject of the image, and it would be still be child abuse material if there is a deliberate attempt to depict them as under 18 or as children.
It is often very difficult to tell the age of participants in this type of material that has been generated overseas, for example. There is no way of going over there and checking the age of the subjects of the child abuse material itself. We have built those provisions in so that it is not going to stop a prosecution proceeding.
Mr KIELY: Therefore, if there were 16-year-olds in a loving relationship, taking photos of each other in a consensual sexual act and then showing it to their mates, would that perhaps constitute making a pornographic image and that would be illegal because you are not 18?
Dr TOYNE: It gets back to what I was saying about what a reasonable adult makes of that. In this case, we are paying police to be reasonable adults. It is really up to the police to make a judgment as to what motivated those young people to produce that image or to retain it or even to distribute it. Technically, they are in breach of the act - there is no question about that - to the degree that anyone is offended by it. If people are not offended by it, a reasonable adult is not offended by it, it is not child abuse material. That is the difference. If there is another element in it of any of the well understood forms of abuse, if that element is in that image, beyond just simply lovemaking, then that crosses the boundary and it is then capable of offending a reasonable adult and therefore capable of being classified as child abuse material.
Mr WOOD: I will be brief. I will answer the member for Nhulunbuy’s question which he asked me to give an answer. I accept that people have loving relationships, but I also accept that young people sometimes do things for larks. They might be in a loving relationship, but they might do things for a bet. They hang around with their mates as well. It does not stop them having a good, loving relationship, but they can, in theory, get caught up in this act. All I am saying in my discussion is that I think this differentiation has potential problems for young people, simply because we have discriminated about what they can do when they are 16 and what they cannot do between 16 and 18, and what they can do when they are 18. That is my final word on this at the moment. The member for Goyder has a fine example where he thinks there is another issue, but I believe we have left ourselves open for problems there.
Mr MALEY: My last hypothetical for you, minister. Two 16-year-olds in a loving relationship, engaging in sexual conduct, intercourse and the like, photograph themselves. Everyone has computers and digital cameras and the like. It is not published, it is on the computer, it is on a disk, it is on a digital camera similar to this. The relationship continues for six years. At 22 years of age, they split the blanket, and the aggrieved party, perhaps, hypothetically, the female, goes to the police and says: ‘My ex-boyfriend has some images on his digital camera, his phone, which I did not take with me when I left. I am offended’. Is that young man, or woman, caught within the scope of this particular provision?
Dr TOYNE: Like many things, it would be evaluated by the police on receipt of that information. The key element would be what would offend the reasonable adult; that is, the policeman. If that woman is, by taking - let us put it this way, probably if you had reversed the case that you put forward. Let us say that she leaves, and her estranged partner then uses that image by distributing it to demean her or to make some money out of it. He is dead gone; he would be right under the provisions of this act. But whether, in reverse, that if he is innocently holding on to a childhood image, I do not think a reasonable adult would say that he is doing anything wrong.
Madam DEPUTY CHAIR: We will now deal with clause 6:
Mr MALEY: I have one other question. When you say clause 5, you mean clause 5, the repeal and substitution of 125B, which is a new 125B?
Madam DEPUTY CHAIR: That is right.
Mr MALEY: I have a question in relation to subsection (3) of that clause.
Madam DEPUTY CHAIR: We have moved on, but Attorney-General, if you are happy to take the question?
Dr TOYNE: I will take the question.
Mr MALEY: This is probably the provision which I have the most difficulty with; that is, the reversal of the onus of proof. In other words, a defendant, once charged by the police, must then prove that he or she is innocent, running the gauntlet of the trial or a hearing. We know that the right to the presumption of innocence forms the bedrock of a fair criminal justice system. You have heard the comments I have read onto the record from Dickson CJ.
I am going to ask you a number of questions but the first question is this: what do you say when you have learned academics like Dickson CJ saying that, when he is referring to these reversal of onus provisions:
The reverse here is you are presumed to possess the material unless you go on to prove these things:
I have repeated that because you have the academics, lawyers and judges - people who have spent their entire life immersed in this material who understand the importance of a presumption of innocence and a burden of proof. What do you say in response to that enormous amount of material? Is there justification for reversing the onus of proof in this particular subsection? That is the first query. Do you want a chance to answer that or shall I go through the other …
Dr TOYNE: It is a very short answer. We have covered this in the earlier discussion. I have made the point that there is a very clear process for the person to establish that they were innocent of the connection to the material. We have had plenty of learned opinion going into the provision that we are putting forward.
A similar deeming provision in the drug house laws has not created the sort of legal disasters that you are trying to portray here. The bottom line for this is that we have had at least one case in the Territory, and other ones around Australia where, despite a very strong body of evidence about such child abuse material being in existence in a person’s premises, the prosecution still failed. There are things that keep you awake at night in this sort of caper. One thing I do not want to keep me awake at night is that we are having failed prosecutions because of the current provisions being retained.
Our law, at the moment, is failing to prosecute on at least one occasion, and we have certainly heard of others. I just do not even agree that the proposition actually erodes the presumption of innocence. We have the capacity to put processes into the court. The court will decide on the body of evidence, including the evidence put forward by the alleged offender regarding their knowledge or lack of knowledge of that. It is just simply saying that, amongst the evidence that needs to be gathered together by the court to allow a decision as to guilt to be made, is the explanation of the alleged offender as to whether they actually have knowledge or no knowledge of the material that was found.
Mr MALEY: Attorney-General, you have stated precisely the problem here and have articulated that. It is on the Parliamentary Record. I hope the press are on the ball to pick that up. You said a person has a clear process to establish their innocence. Well, that is exactly the problem. You are saying there is a clear process for a person to establish their innocence. The onus is upon them. The provision is absolutely clear:
You said it; you said precisely the very point which I am trying to make - the very point which you do not properly grasp.
We have the Attorney-General for the Northern Territory, who is sworn as the No 1 law officer in the land, saying there is a clear process for people of the Northern Territory to establish their innocence. That is outrageous and offensive. I just hope that the media has enough interest in this and give their listeners and readers enough credit to let them understand what is happening. I am not at all standing up for a moment for people engaging in this conduct. What I am saying is that there is now a situation that is creeping into legislation - and you have given some examples - and into various statutes where there is now a clear process for someone to establish that they are innocent. Remember that these fundamental safeguards of the right to silence and the presumption of innocent are there to prevent and control the excesses of government.
I will go back to an example: a person who exercises their right to silence, a person who was in the unfortunate factual situation where a computer or a photograph was in a house which is shared by several people, or involved in the management and control. He exercises his right to silence, he goes to court. He refuses to give evidence; he is going to say: ‘No, look I have done nothing wrong. I have nothing to say’. He will be in the position, unless he gets into the witness box, unless he discharges that evidential burden, it is actually the persuasive burden for the defendant, unless he discharges that and you have talked about to the balance of probabilities, unless he discharges that, he will be deemed to be in possession of that material.
This is precisely the scenario which Dickson CJ talked about. He talked about, with these reversal of onus provisions, there are situations where people can be convicted despite the fact there is a reasonable doubt. So, minister, your clumsy response has illustrated precisely – beg your pardon?
Madam DEPUTY CHAIR: Member for Goyder, withdraw! Personal - withdraw. I have been quite clear throughout the committee stage debate, I will not accept personal remarks.
Mr MALEY: I am not going to withdraw that. That was a clumsy response. I am entitled to say that. That is not offensive.
Madam DEPUTY CHAIR: I have ruled. I have asked you to withdraw.
Mr ELFERINK: A point of order, Madam Deputy Chair! The ‘clumsy response’ is not in any way abusive. It is an acceptable term of debate.
Madam DEPUTY CHAIR: Member for Macdonnell, there is no point of order. Member for Goyder, I ask that you withdraw.
Mr ELFERINK: Well, in that case I move, Madam Deputy Chair, a dissent from your ruling. We should get the Speaker in here. I will write it out.
Madam DEPUTY CHAIR: Write it out.
Mr ELFERINK: Because that is excessive.
Madam DEPUTY CHAIR: The Chair has received the motion of dissent in writing. The question is that the motion of dissent be agreed to.
Motion negatived.
Mr ELFERINK: I call a division on that, Madam Deputy Chair.
Mr Stirling: Is it supported? Apparently not.
Mr ELFERINK: Well, apparently it is.
Madam DEPUTY CHAIR: Is the division supported?
Mr Stirling: No one stood; it is not supported, Madam Deputy Chair.
Madam DEPUTY CHAIR: Ring the bells.
The committee divided:
Ayes 11 Noes 12
Mr Baldwin Mrs Aagaard
Mr Burke Mr Ah Kit
Ms Carney Mr Bonson
Ms Carter Dr Burns
Mr Dunham Mr Henderson
Mr Elferink Mr Kiely
Dr Lim Mr McAdam
Mr Maley Ms Martin
Mrs Miller Ms Scrymgour
Mr Mills Mr Stirling
Mr Wood Dr Toyne
Mr Vatskalis
Motion negatived.
Mr MALEY: As well as making those comments about a clear process to establish your innocence, there is another point you deliberately raised as a form of justification for this legislation, in a way implying that there was as safeguard. You said words to the effect of: ‘The court will decide on the evidence. Members of the Northern Territory public, you can relax, because if there is evidence before the court, then the court is going to decide on that material’. This is very much, albeit related, precisely the point: what evidence do we have? Evidence is a very broad term. Evidence before the court is a presumption contained in section 125B(3), and it says here: ‘… is evidence that the child abuse material was then in the person’s possession …’. So, your statement that, ‘Oh don’t worry, the court will decide on the evidence’, the evidence is merely a statutory presumption.
The second thing, you talk about in a cavalier fashion, evidence. Well, a bit further down in section 125B(5), we have evidence in the form of a certificate from a Director or Deputy Director of the Classifications Board. Under the Commonwealth act, a certificate stating that, in relation to the image or picture – I will read it precisely for the record so that members of the gallery and those who are interested can follow this clearly:
So you have attempted, in a very poor fashion, and you have accidentally made the point precisely that I am trying to make. The poor punter who comes along, who exercises his right to silence will be, or could be, convicted because there is a certificate which is prima facie evidence. The court has processes, of course, but you have contaminated the processes of the court. You have contaminated in a way which has eroded some fairly fundamental safeguards.
The final way I put it is that, if you were serious about dealing with these matters, and it is not about having presumptions, it is about properly resourcing the police so they can present cogent and credible evidence to a court. You would not have to reverse the onus. The examples that you waxed lyrical about earlier about the spectrum of offences that you think you are trying to deal with, if that is the case, then there is no need to have this particular reversal of onus. Why won’t you allow the prosecution of a matter which has such a serious stigma to run the normal gauntlet, to have the normal safeguards, to have the normal procedural fairness?
You stand up in this place and place on the record that there is a clear process for people to establish their innocence. I hope that is not lost on honourable members - a clear process to establish your innocence. Well, that is outrageous. And then you say: ‘Oh, but there will be evidence, and it is decided on the evidence’. Well, the evidence is a number of presumptions contained in the legislation.
You have confirmed precisely the type of attitude and dangerous motivations which King CJ and the Canadian Supreme Court were foreshadowing. Unfortunately, in this country, we do not have a Charter of Rights, a Bill of Rights, which protects the presumption of innocence, which would, if it was in Canada, deem this particular provision unlawful. We do not have a statute which protects your right to silence. We have to rely upon politicians getting the right advice. We have to rely upon members of the opposition raising this matter in parliament. We have to rely upon members of the media thinking that it is an issue which is worthy of dissemination to the wider community, and that is the only safeguards we have. We have the presumption of innocence in one category.
The second pillar and fundamental safeguard we have is, of course, the right to silence. This reversal of the onus of proof is effectively another way of attacking that right to silence. There might be other ways to discharge the onus but, in 99.9% of cases, you do not have a right to silence if you are charged with this particular offence. No matter how you articulate it or you couch it, part of the process you spoke about to establish your innocence involves you stepping into the witness box. That is an erosion of your right to silence.
For this government to trapeze in here and say: ‘We are leading the way; this is the first state or territory jurisdiction to deal with this. We have looked at some Commonwealth legislation and we have taken bits here. We have looked at the old legislation’. For you to trapeze in here and, as a matter of urgency, pass legislation which, genuinely and objectively, erodes that fundamental safeguard - your right to silence - is a disgrace. The motivation is understandable and one that, quite frankly, the opposition supports. Let us get tough on this type of conduct - no problems with that. We are going to support the bill because it increases the penalty and sends the message out. However, for you to trapeze in here without thinking about the real and practical ramifications of the reversing of the onus of proof, of taking away a person’s right to silence is, quite frankly, disgraceful and you do yourself a severe disservice.
Dr TOYNE: Madam Deputy Chair, I have very little more to add to this. The member is demonstrating such inconsistency over there with ‘Yes, we are supporting this bill’, when we have now spent three hours picking over every single possible pretence to not support the bill. If you do not want to support the bill, get up and say so and we will …
Mr WOOD: A point of order, Madam Deputy Chair! That is not true. The reason we are going over this bill is to make sure that innocent people are not picked up in something that has …
Madam DEPUTY CHAIR: There is no point of order.
Mr WOOD: There is.
Madam DEPUTY CHAIR: There is no point of order.
Mr WOOD: If he says it again, I will raise a point of order.
Dr TOYNE: Madam Deputy Chair, for the member to be making the outrageous comments in terms of …
Mr Maley: Which outrageous comments? Which ones?
Dr TOYNE: … this is attacking the entire fundamental principles of the justice system, but we are still going …
Mr Maley: Which comments are outrageous?
Madam DEPUTY CHAIR: Order!
Mr MALEY: A point of order, Madam Deputy Chair! I want to know which comment - which one is outrageous?
Madam DEPUTY CHAIR: Member for Goyder, there is no point of order. The minister has the floor. If you have anything to add …
Mr MALEY: I am asking the minister the explain what he is saying. Which comment is outrageous?
Madam DEPUTY CHAIR: Member for Goyder, resume your chair. The rules of debate are that when someone has the floor, if there is a point of order they are called on that. I have ruled there is no point of order. You may not agree with what the minister is saying. You then have the right to stand and put your view when the minister has finished his response. Let the minister finish his response.
Dr TOYNE: Madam Deputy Chair, I am very comfortable with the extensive advice that has gone into the development of this bill. We have considered legal principles. You might pick out an authority in Canada – we have certainly balanced these issues in the development of this legislation. It is not unusual in law to have processes to establish how evidence is going to be adduced in a court hearing which will pertain to the innocence or otherwise of the alleged offender - the processes involved in testing alibis, for example. There is a process in place in the court. If you want to claim an alibi as a proof of your innocence, then there is a process that the court follows to test that evidence, which involves notifying both parties that that evidence is going to be proffered.
This is no different. It is just simply saying that, if you intend to put an argument that you had no knowledge of the material that was in the premises where it and you were found, then there is a standard of proof set out in the act, and it will be part of the evidence the court takes into account. It is not an unusual structure in law.
I do not see that there is much to be gained by continually restating the same concerns as we seem to be doing at the moment. I really have not much more to add to what I have said. Unless there are some new matters we should move on.
Mr MALEY: Attorney-General, you jumped up and said that what I said was outrageous. Can you please particularise precisely at which point - either the presumption of innocence being eroded, or the erosion of your right to silence - which portion is outrageous. Would you state on the record what you find offensive and outrageous about those two fundamental principles?
Dr TOYNE: Madam Deputy Chair, I have nothing more to add on these clauses.
Mr BONSON: Madam Deputy Chair, I have been listening to this debate for about three hours and, for the record, all I can articulate is what I believe is happening in this debate. With all due respect to the member for Goyder, we have to look at his background and where he is coming from. There is no doubt that the member for Goyder with his background in criminal law is looking at the element of what the protection is of an individual who has been charged with an offence and not dealing necessarily with issues of whether they are innocent or guilty, but coming from a point of view of an individual representing someone in that situation.
The member for Goyder and other criminal solicitors throughout the Northern Territory no doubt have represented people who have been innocent and guilty, but they are hired to represent those people. Some of the issues that the member for Goyder is pointing out are matters of jurisprudence and points of law and principles of law. The reality is this is a new bill. With any new bill that becomes a new law, there has to be given time for the courts to decide on how it should be implemented.
There will be cases decided where defence lawyers and prosecutors will argue points of law and how the particular legislation should be used in particular circumstances. The courts will be looking at how this bill should be interpreted, because that what we are talking about: how the bill should be interpreted and how the law in itself should be prosecuted, and what rights the individual has within that law. The judges will have an opportunity to look at precedent.
We have heard the member for Goyder give the Canadian example of the right to silence. He also talked about the Bill of Rights and the rights you get from the Bill of Rights. The issue here in Australia, is that we do not have a Bill of Rights. The Constitution of Australia governs what we have and what forms the basis of our law. As the member of Goyder would know, the High Court has interpreted on many different occasions that there are certain implied rights in our Constitution. There might be cases of individuals having certain rights under a Bill of Rights, but we do not have that opportunity in Australia. I am in the section of the community that would argue a Bill of Rights is not a good thing to have. The reason that I would argue is that it turns what is my individual rights as an individual against the community.
What we are talking about, for the member of Goyder, is the right for that person who has been found with pornographic material in his or her possession, what are their rights are versus the community. What I would argue to the members for Goyder and Nelson is that sometimes we have to look at what is the community’s right versus the individual’s rights. Sometimes we have to make tough decisions for the benefit of the community.
This is what this legislation is doing. It is saying that for the benefit of the community we will be introducing laws that will punish and prosecute people who are committing offences relating to children and pornographic material. We have heard the Attorney-General ask tonight what the opposition is doing. Is the opposition supporting the bill? I believe the shadow Attorney-General said: ‘I support the bill’ and that was it.
We have then had to have, unfortunately, a three-hour debate because of someone’s individual characteristics and his previous employment. I understand where he is coming from, this individual …
Mr WOOD: A point of order, Madam Chair! Reflecting on a member who is not in here.
Madam DEPUTY CHAIR: Member for Millner, I ask you to withdraw it.
Mr BONSON: I will withdraw it, but I never reflected on his absence or his presence. I am not even criticising his previous profession. What I am saying is the House needs to understand that where his profession is coming from is his ability to represent that particular individual. This is what this argument is about. I believe that the member for Goyder has just got warmed up because of his past work experience.
I say to the members of this House that the issue is we are introducing a law. That law should be allowed to be prosecuted to its full. Individuals have their right to defence. The judges will make their decisions on the evidence before them. I cannot see what is wrong with that process. I look forward to seeing people who have committed a serious offence being prosecuted.
I just could not let this debate go on without an understanding of those people whose arguments for the last three hours have been generated by their work experience rather than the issue at hand, which is the bill.
Mr WOOD: That was a very good contribution from member for Millner, and I accept some of what he was saying. However, there are two important points in this debate. The reason it takes so long is because it is a bill on urgency and therefore should be scrutinised to a greater extent than would normally happen because you have a lot more time investigate some of these issues. The second point is the reason we have a committee stage is because we have a unicameral House. If you read some of the adjudications on allowing this stage of parliament to be extended, it is because this is the only time we can duly scrutinise the bill.
It is a very important bill. I agree with the member for Millner about us acting on behalf of the community, but we must be careful that the innocent are not caught by the bill. If we can protect them and still have legislation that covers the community, so be it.
I support the thrust of the bill. I have said already that child pornography is a blight on our society. No way do I support anyone who deals in that sort of material. However, there are some important issues and they arise from the issue we discussed before: the difference between the age of consent and the definition of a child.
Mr ELFERINK: More generally, Madam Deputy Chair, very quickly, two questions. The first is: is this bill retrospective?
Dr TOYNE: No.
Mr ELFERINK: My second question: is there any case on foot at the moment of which you are aware, Attorney-General, that will not be captured by this bill?
Dr TOYNE: It is not my brief to know what individual cases are out there. What I am saying is that once this bill is commenced and becomes law, it will capture cases coming into the system after it is enacted as law, not before. I do not know what is out there. I know that there are still operations in progress.
Madam DEPUTY CHAIR: We will now deal with clause 6:
Mr WOOD: No, no. You were dealing with clause 5 because we …
Madam DEPUTY CHAIR: We have already passed clause 5.
Mr WOOD: After clause 6, remember, I …
Madam DEPUTY CHAIR: Yes, and I am giving you the call on the clause 6 now, but I have to ask the question first. You should know that as Chairman of Committees.
Dr TOYNE: Don’t worry Gerry; we are not robbing you.
Mr WOOD: Attorney-General, I need to ask these questions so I have it clear in my mind. If I have it wrong, I have it wrong. Clause 6 deals with using a child for production of child abuse material and pornographic or abusive performance. If you look up the definition of ‘abusive performance’, it means (a) engaging in sexual activity; (b) in a sexual, offensive or demeaning context; or (c) being subject to torture, cruelty or abuse, that is likely to cause offence to a reasonable adult.
If a person is 18, and engaged in a sexual activity, in a sexual, offensive or demeaning context that might cause offence to a reasonable adult, I presume they are not causing an offence.
Dr TOYNE: That is not strictly correct. If you had an 18-year-old who was depicting themselves as a child – say an 18-year-old of small stature who dressed as a child and then performed some act to generate this material - they are still engaged in producing this material.
Mr WOOD: Thank you, minister. However, not just using the exceptions, just a normal 18-year-old person, they would not be committing an offence. If two 16-year-olds are engaged in consensual sexual activity, which did include sexual offences within the meaning context, which might be likely to cause offence to a reasonable adult, but in the privacy of their own home, or wherever they are doing it, are they taking part in what is called ‘abusive performance’?
Dr TOYNE: No, they are not, on my advice. There has to be an element of abuse in it according to a reasonable adult’s judgment. If it just a straight act of consensual sex between two 16-year-olds, it would not be perceived by a reasonable adult to constitute child abuse and therefore it is not an abusive performance. If it had non-loving elements in it - abusive elements in what those two people were doing - and it subsequently became public then, potentially, it would be an abuse performance. For example, if there were sadistic overtones to the activity, or some demeaning of one of the participants. If you are making the example that it is a genuine act of lovemaking between two 16-year-olds, then it probably does not to a reasonable adult.
Mr WOOD: Just to clarify quickly, then, before I keep going on this area, do you require (a), (b) and (c) to make up a pornographic or abusive performance? Do all three parts have to take place, or only (a) and (b), and (c) as an extra? I am talking about abusive performance, and it requires (a), and it requires (b) and there is an or, – one of those famous ors – (c). Do all three things have to be taken into account to be pornographic or abusive performance, or can just the first two be deemed as abusive?
Dr TOYNE: It is one or another, or another, but it could be all three, or two of the three. It is a minimum of one, but they all could be part of the performance.
Mr WOOD: Okay. Then, if 16-year-olds took part in sexual activity that was likely to cause offence to a reasonable adult; say they were doing things that perhaps that might not be called the normal sexual activity, but some fairly strange things – hanging off the ceiling fan or something, I do not know – which might cause reasonable offence to an adult, are they not then part of abusive performance?
Dr TOYNE: The key thing is abuse. There has to be an element of abuse for it to be an abusive performance. Abuse means that you are harming, demeaning or dishonouring one or both of those participants in the acts that they are performing. To a reasonable adult, that would not constitute a normal lovemaking event. It has to have an element of abuse in it. Lovemaking is not abuse unless you are – well, I do not know …
Mr WOOD: Minister, abuse is the (c). Abuse comes under being subject to torture, cruelty or abuse. If you take the abuse out, and you say engaging in sexual activity and in sexual, offensive or demeaning context - and people, I would imagine, do some fairly strange things that could offend a reasonable adult. You are talking about a 16-year-old. If they fit that criteria that they are allowed to have consensual sex, are they not taking part in a pornographic or abusive performance?
Mr Kiely: So this is all photographed as well when they are doing it?
Mr WOOD: No, no. Read the section - read the section.
Madam DEPUTY CHAIR: Order! The member for Nelson has asked the question and the Attorney-General will respond in due course.
Dr TOYNE: Madam Deputy Chair, if you read the provisions together - we are on clause 6 if you have a look at proposed new section 125E and the first paragraph in that section:
This is the whole package to describe the offence. In the case that you are putting forward, who is using who? There is no one using anyone in a consensual sexual act between two 16-year-olds. They are mutually consenting to the activity regardless of what element of imagination or activity - I am using my terms very delicately here, member for Nelson.
What we are trying to capture in the total weight of these provisions is the element of exploitation encapsulated in that paragraph: ‘uses, offers or procures’. It is actually an act of exploitation by one party on another. If there was a third party who was exploiting those two young people having sexual relations by producing material and distributing it, then that is abusing that situation. However, neither of those, inherently, are using each other. They are basically each offering willingly into the activity happening; it is not with the purpose of abuse. That is captured with that particular part of the bill.
Mr WOOD: I agree with the intent; I have no problem with that. However, a person who uses – I do not know whether the word ‘uses’ has some legal context - but if I am part of a consensual sexual arrangement where we are using one another - this is over 16. I am trying to highlight what I feel is a flaw in the law. We are engaging in sexual activity and we are doing a bit of funny stuff. We are in ‘sexual, offensive or demeaning context’ which could cause offence to an adult. According to this, which says - and I will cut it a little short - a person who uses a child – that is a person under the age of 16 - for the production of pornographic or abusive performance is guilty of a crime and is liable to 14 years gaol.
I am saying that is why I see it as a flaw. I perfectly agree with the reason for it being there but, minister, I believe that we have this hole in the law because we have this different interpretation of a child’s right to have sexual intercourse versus what is defined as a child’s age.
Dr TOYNE: Madam Deputy Chair, I really do not have a lot more to add to it. You have chewing that context through several of these clauses. Each clause that we have debated around your example has added another layer to what the bill is describing as the offence or offences that might be involved in that activity. Each one of them excludes the situation you are putting forward as being an act of abuse performance or an act of production of child abuse material. I would have thought that, far from being made more concerned about it, it should have reassured you that in each case I have been able to identify an element in the description of the offences that would actually exclude the case that you have brought forward.
Beyond what I have already said, I really cannot think of anything else that I can say to reassure you, other than to say that the provisions in this bill have been very thoroughly scrutinised by our legal people in policy and Parliamentary Counsel. The terms there are not only workable under law but also in commonsense meaning they are open to anyone who reads the act. Most people know what it is to ‘use’ another person in an improper way. That is common sense. If you are trying to exploit someone for your own personal gain, that is commonly understood. It is not a technical term or a legal term, it is simply just plain English.
Mr WOOD: Thank you, minister. I do not have much more to say except that I apologise to Madam Deputy Chair. I thought that we probably were not going to go this long when I asked her to step into the Chair. Thank you, Madam Deputy Chair.
Bill 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.
Motion agreed to; bill read a third time.
Madam SPEAKER: Honourable members, pursuant to section 313 of the Electoral Act I table the 2003-04 Annual Report of the Northern Territory Electoral Commission.
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the report be printed.
Motion agreed to.
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Assembly take note of the report and that I have leave to continue my remarks at a later hour.
Motion agreed to.
Mr STIRLING (Treasurer): Madam Speaker, in accordance with section 9 of the Financial Management Act, I am pleased to table the 2003-04 Treasurer’s Annual Financial Statement. The statement forms part of the 2003-04 Treasurer’s Annual Financial Report and presents the Territory’s second year of fiscal management on an accrual basis. The report also satisfies the requirements of the final fiscal results report as set out in the Fiscal Integrity and Transparency Act. The highlights of the 2003-04 Treasurer’s Annual Financial Report are:
I am pleased to announce that the Auditor-General has issued a clear audit opinion on the statement. A technical qualification still exists in relation to compliance …
Mr DUNHAM: A point of order, Madam Speaker! Is it the intention that this report will be tabled and circulated?
Madam SPEAKER: Yes, they are being delivered now.
Mr STIRLING: A technical qualification still exists in relation to compliance with Australian Accounting Standard 31, Financial Reporting by Governments, as has been the case for the last six years. The Territory has chosen to conform with Uniform Presentation Framework requirements rather than with AAS31 in this and in previous years. Work is under way nationally to merge UPF and AAS requirements with the expectation this will be finalised for 2006-07 at the earliest. Until that time, the technical qualification will remain.
I turn to the outcome for the 2003-04 financial year. The main focus of the government’s decision-making and reporting continues to be on the general government sector budget outcome. This is the practice of all other jurisdictions and in accordance with the UPF as it is the general government sector that is directly affected by government’s taxing and spending policies.
The Territory committed to a cash-based deficit reduction strategy at the time of the November 2001 mini-budget. Consequently, the Territory’s main focus has remained on the general government sector cash outcome as presented in the cash flow statement. The cash outcome for 2003-04 was $60m better than originally budgeted for in May 2003, resulting in a cash surplus of $36m. This surplus is in line with the $34m final estimate as published in the 2004-05 Budget Papers.
This improvement was a result of $156m increase in operating receipts offset by higher operating payments of $88m. The main component of the increase in operating receipts was $89m additional GST revenue. This followed increases in the national GST pool available for distribution. In addition, there was a $39m increase in Specific Purpose Payments from the Commonwealth together with increases in taxation revenue of $10m largely due to stamp duty conveyances reflecting increased activity in the Territory’s property market.
Operating payments were higher due to the government’s decision to increase funding in key areas. These included additional police resourcing resulting from the O’Sullivan Review, education and training initiatives, investing in the future of the Territory tourism industry, capital grants for supporting facilities and indigenous essential services, and additional funding for mental health and child protection.
Capital investment plays a central role in the government’s budget strategy as capital investment is essential for the delivery of government services. At the same time, the capital program provides a contribution to the economic development requirements of a growing economy. In 2003-04, capital spending increased by $3m from the original budget estimate of $193m. The result is slightly lower than estimated in May 2004 due to a change in classification of some items from capital to operational.
I now turn to the 2003-04 accrual outcome. While the operating result is a $40m deficit, there are two large one-off accrual transactions in 2003-04 that contribute to the outcome. The first was the transfer of the Centralian and Northern Territory Rural Colleges to Charles Darwin University resulting in a decrease in the Territory’s assets of $46m. The second relates to the reassumption of HIH liabilities of $20m following the abolition of the 4% employers levy in the 2004-05 budget. With the removal of these transactions, the underlying operating result is a $26m surplus. This is $23m lower than the $49m estimated for in the 2004 Budget Papers and is largely due to the reclassification of capital payments, explained previously, to reflect appropriate accounting practice.
While general government is the appropriate sector to focus on for the operating statement and cash flow, the non-financial public sector is the focus for analysis of the balance sheet. The use of this sector, which consolidates the data from the general government and public non-financial corporation sectors, is to ensure better comparability between jurisdictions.
The non-financial public sector nett debt for 2003-04 is $1656m representing a $169m improvement over that anticipated at 2003-04 budget time and a $67m improvement on the 2002-03 outcome. This, together with a $184m improvement in nett debt, plus employee liabilities since the 2003-04 budget, is largely the result of recent cash surpluses combined with a $22m increase in the value of the Conditions of Service reserve investments.
The improved budget position during the year, together with close management of cash balances, enabled the borrowing program to reduce by $63m in 2003-04. Nett worth has also continued to improve, being $106m better than predicted at the time of the original 2003-04 budget and a $247m improvement on the 2002-03 outcome. This is largely due to the revaluation and construction of assets along with the cash surplus mentioned earlier.
I now outline the government’s performance against the 2003-04 fiscal strategy. The strategy was based on three key principles:
Specific targets were identified for each of the principles. The targets for the principle of sustainable government services are to achieve an underlying cash surplus by 2004-05 and to achieve a nett operating balance by 2012-13 in the general government sector. As discussed previously, the recorded cash surplus of $36m is $60m in excess of the original budget target. In addition, the underlying nett operating balance is a $26m surplus, after excluding the one-off accounting adjustments for assets transferred to Charles Darwin University and the reassumption of HIH liabilities. Based on financial performance to date, the government remains on track to achieve these targets.
The second principle is to maintain a competitive tax environment. In 2003-04, Northern Territory taxation revenue per capita was $1333, less than all other jurisdictions except Tasmania. The final figure reflects increased economic activity and the effect of inflation rather than increased tax rates. Indeed, the Territory experienced the smallest increase in taxation revenue per capita during the year of all jurisdictions. Given this, and the Commonwealth Grants Commission’s assessments that the Territory’s tax effort remains below the Australian average, the government has met this measure for 2003-04.
The last principle is the prudent management of liabilities. The effective management of liabilities gives considerable focus to targeting, monitoring and reducing nett debt to prudent levels. While Territory debt levels remain high relative to the states, Territory non-financial public sector nett debt has continued to decline, from $1743m in 2001-02 to $1656m in 2003-04 – an improvement of $87m. Over the same period, the ratio of nett debt to revenue has also declined from 67% to 57% in 2003-04. The addition of the employee liabilities to nett debt enables a broader assessment of government liabilities. As previously mentioned, nett debt plus employee liabilities for the non-financial public sector for 2003-04 was $3483m, an improvement of $184m on the original budget.
The Territory’s unfunded superannuation liability of $1467m at 30 June 2004 is expected to peak sometime around 2006. After this time, the liability is expected to progressively decline until full extinguishment around 2065. Emerging costs with the actual cash payments required to meet liabilities as they fall due are expected to increase until around 2015 when they, too, begin a steady decline to around 2065.
Madam Speaker, in conclusion it is a good result for the Territory. It is consistent with the government’s fiscal strategy, and a significant improvement on the original 2003-04 budget estimates. Government will continue to manage the Territory’s finances responsibly, maintaining an appropriate balance between community needs, the needs of the Territory economy, and maintaining a sound fiscal position.
I table the 2003-04 Treasurer’s Annual Financial Report, which incorporates the 2003-04 Treasurer’s Annual Financial Statement. I commend it to the House.
Madam Speaker, I move the Assembly take note of the report and I seek leave to continue my remarks at a later hour.
Motion agreed to.
Mrs AAGAARD (Nightcliff): Madam Speaker, as Chair of the Select Committee on Substance Abuse in the Community I table that committee’s report on its inquiry into Petrol Sniffing in Remote Northern Territory Communities.
Mrs AAGAARD (Nightcliff): Madam Speaker, I move that the report be printed.
Motion agreed to.
Mrs AAGAARD (Nightcliff):
Madam Speaker, I move that the Assembly take note of the paper.
Madam Speaker, petrol sniffing is human tragedy. Imagine the scene of driving on the dusty roads of a remote community and witnessing a young teenage girl of, say, 15 or 16 walking along the road while breastfeeding a very young baby and simultaneously petrol sniffing. This is the scene that confronted me in one Western Desert community last year. This is the scene which is repeated in other communities around the Territory on a daily basis.
Evidence says that there are around 360 sniffers throughout the Northern Territory, mainly aged 12 to 17 years, but with children as young as eight sometimes involved and, occasionally, people as old as 25. Some people might say that 360 people is not many people, but the significant negative and detrimental effect these people have on their families and their communities and, of course, on themselves, far outweighs the numbers involved, not the least in the loss of a meaningful life, where that person becomes permanently disabled from brain damage from a very young age.
Petrol sniffing, or any form of volatile substance inhalation, is a particularly distressing form of substance abuse. That a person – and, more worryingly, a young person - would subject their body and brain to such an experience is difficult to comprehend. It can only be assumed that the need for a high to escape from whatever sad reality they are facing at the time makes the risk of damage worthwhile. It is that sad reality which we really need to address if we are to make any sustained inroad into petrol sniffing.
Let me just set the scene for this report. This is not the first parliamentary committee to look into petrol sniffing. In 1985, the then two Northern Territory Senators, Senator Ted Robertson and Senator Bernie Kilgariff, successfully sought the establishment of a Senate committee to inquire into and report upon the voluntary inhalation of volatile substance fumes in Australia; in particular, by persons aged 18 and under, and where petrol sniffing had become endemic. Other inquiries have followed and governments, over time, certainly have not been diffident about addressing the issue. However, petrol sniffing is still with us and still as great a scourge as it has always been. Why is this?
The committee has taken evidence from numerous people representing all levels - social, economic, ethnic and geographic - of Northern Territory society during its three years of life. It has received 18 submissions specifically in relation to petrol sniffing, and held a total of 13 hearings and meetings where petrol sniffing was the focus. The committee has sifted through the evidence presented to it and has condensed its findings into 17 recommendations. The evidence presented, the committee’s consideration of this in terms of its terms of reference, and the findings of the committee, as well as consequent recommendations, are detailed in the report. There are a total of four appendices to the report. Appendix 1 provides an overview of the work of the committee to date; that is, since it was first established when this government came to office in 2001.
As members are aware, the substance abuse committee was established as a select committee, although without a reporting deadline for its inquiry and report to parliament. As such, it has operated and been seen to operate more as a sessional committee. While the committee has also considered alcohol abuse and cannabis use, along with petrol sniffing, the establishment of the alcohol framework project team led to the committee deciding to work hand-in-hand with that body on alcohol solutions, while focussing its immediate attention on petrol sniffing and, specifically, its impact upon remote Northern Territory communities.
As further background, the committee has included in the report, at Appendix 2, brief discussions on three earlier parliamentary inquiries which touch on petrol sniffing and may have lessons for us to note in addressing our current situation.
I mentioned earlier the Senate inquiry into substance abuse which had a focus on young people in areas where sniffing was endemic. Part 2 of that committee’s report is of particular relevance to this current inquiry. As the Senate committee considered that urban and rural inhalant abuse has separate sociologic contexts, the second part of their report was concerned with petrol sniffing amongst the youth of Aboriginal communities, a cohort we again looked at 20 years on.
The second inquiry which the committee considered had relevance to its own inquiry was that undertaken by the Victorian Drugs and Crime Prevention Committee into the inhalation of volatile substances in Victoria, the result of which was a very informative report released in September 2002. Of course, Victoria has a much more urban population that the Northern Territory and also exhibits other demographic and socioeconomic differences. However, the committee considered that this inquiry was relevant first, because the report is extremely comprehensive and, second, it was undertaken relatively recently.
Once section looked at strategic interventions to address inhalant abuse in indigenous society, both urban and rural. The Victorian committee travelled to New Zealand to observe the considerable advances made there in combating the inhalant problems of Maori youth through cultural interventions, which are of relevance to any society addressing substance abuse amongst its indigenous population.
The final parliamentary committee inquiry considered in Appendix 2 is that of the House of Representatives’ Standing Committee on Family and Community Affairs, which looked at the social and economic costs of substance abuse around Australia. The House of Representatives’ committee undertook a number of consultations in the Northern Territory including in a number of rural and regional areas. In September 2001, it released a discussion paper, Where To Next, which was of timely advantage to this committee which was established in that same month. The final report of that inquiry, Road To Recovery, was released in 2003. Returning to my committee’s report, Appendices 3 and 4 respectively, lists the petrol sniffing-specific submissions and meetings presented.
I now move on to provide an overview of the report itself. The body of the report is divided in to three parts. The first part looks at the evidence taken by the committee at meetings and hearings and that provided to it in written submissions. I am sure that all members understand that when we are talking about substance abuse, often there are no clear cut differentiations between preferred substances to abuse. This is apart from those addicted to illicit drugs of course, but even there as we know sometimes it is a matter of whatever is available at the time. In this context, I am discussing the substances of abuse most often associated with indigenous communities and these are mainly alcohol, cannabis and petrol. Sometimes they are used as a cocktail, sometimes it is a matter of whatever is available and can be got hold of. So in saying that this is the evidence of the committee in relation to petrol sniffing in remote communities is to ignore the other large body of evidence which addressed the extent and causes of, and solutions to, substance abuse in remote indigenous communities overall.
Each of the 13 meetings and hearings held and the 18 submissions received, specifically dealing with petrol sniffing, are discussed in chronological order in the report. As I only joined the committee earlier this year, I will leave discussion regarding the earlier consultations to those committee members who were present as part of their contributions to this debate.
In February, the committee decided that it would finalise its inquiry into petrol sniffing amongst remote indigenous youth with a view to reporting to the Legislative Assembly later in the year. The committee also agreed that it would seek briefings from two witnesses, experts in different but complementary fields, Dr Peter d’Abbs and Dr Tracy Westermann. A further area the committee considered it should look at was CAYLUS, the Central Australian Youth Link Up Service project in Central Australia. As well, the committee sought a meeting with representatives of the Australian Institute of Petroleum, a body which represents the fuel distribution and product companies nationally. In doing so, and I should acknowledge that this has been a pet interest of the member for Nelson and it is through his input that the committee pursued this line of inquiry, the committee hoped to establish if there was a possibility of industry playing a part in addressing petrol sniffing.
The results of these meetings are discussed in the report and copies of the transcripts of the meetings with Dr d’Abbs, Dr Westermann and CAYLUS are available for members if they wish to look at the evidence in more detail. However, the meeting between representatives of the Australian Institute of Petroleum, which the member for Katherine and I attended as a sub-committee representing the committee, was not recorded and I would like to say a few words about that meeting.
As I said, the member for Katherine and I met with the executive director of the institute and representatives of BP Australia in Canberra in June this year. The three senior executives of BP we spoke to were Mr Frank Russell, the Manager, Fuels Marketing and Assurance Australia; Mr Bob Welsh, Rseller and Terminals Manager Australia; and Mr Mark Glazebrook, BP’s Corporate Citizenship Advisor. These people were able to provide us with information regarding the project BP is currently involved in in Central Australia to combat petrol sniffing. In conjunction with indigenous communities in the Western Desert region of the Northern Territory, as well as Yirara College in Alice Springs, BP has developed a three part program: stop the sniffing; provide alternative activities to sniffing; and get them back to school.
As regards school attendance and retention rates, this has been very successful. The next stage of BP’s project includes planning with BP’s corporate partners to identify post-school training and employment opportunities for these young people. I was much heartened of this example of industry displaying the triple bottom line theory and action through their determination to put something back into the community from which they draw their profits.
The second part of the report contains a consideration of the issues presented in the evidence of the committee, in what was asked of the committee in the terms of reference. In this chapter, the committee discusses those issues which it considers to be dominant with regard to the petrol sniffing problem, with regard to community concern, current trends, social and economic consequences, especially with reference to the wellbeing of individuals; services currently available in the Northern Territory to address petrol sniffing; factors which directly affect the nature and level of petrol sniffing, that is accessibility and availability; the Territory’s demographic and ethnic structure and the correlation between socioeconomic conditions and petrol sniffing; and finally, appropriate policies and services for prevention and treatment.
I will now move on to the important part of the report which is that containing the findings of the committee and its recommendations. The committee, in considering its findings, looked at eight broad areas for addressing petrol sniffing as follows: a whole-of-government approach; meeting the needs of individual communities; immediate and longer-term harm reduction, intervention and treatment; education, skills and training; ancillary community programs; the need for comprehensive data collection; drug education; and cooperative approaches with industry.
There is little doubt that the major contributing factors that could be considered as indicating a propensity for petrol sniffing are socioeconomic: poverty; boredom; oppression; lack of services and facilities; parental drinking and gambling, leading to hunger and neglect; poor education levels and lack of employment and aspirational opportunities; and so on.
The boredom issue is a common cry from remote communities where any sort of meaningful activity, whether work, sport or other recreational pursuit is too often missing. However, the use of legal or illegal substances by young people is not something found only in remote Aboriginal communities. As with youth in any society, there is also an element of rebellion in experimenting with drugs in remote communities, where petrol is the most readily available and for youth with little financial means, is an affordable substance to abuse.
Accordingly, any strategies to address petrol sniffing need to be introduced in tandem with measures addressing the socioeconomic issues underpinning the practice, as well as with strategies which address availability and accessibility. The committee is convinced that if government is to effect any change, it is imperative that it address the issues with a whole-of-government approach, ensuring that all service delivery is networked to ensure it is coordinated; that services comply with the program parameters; and that those delivering it are accountable for its outcomes. This coordination is absolutely vital if life expectancies, particularly those of our young people, are to improve.
The committee considers that this could be achieved by establishing an over-arching body to coordinate the Northern Territory’s petrol sniffing strategy, with responsibility to ensure that services are adequate to the needs of remote communities and that they are fully coordinated. The committee considers that this body would sit logically within the Department of Health and Community Services, but would consist of representation from all government agencies, both Northern Territory and Commonwealth, as well as those from non-government organisations which are involved in the delivery of petrol sniffing programs and services. It is imperative that any intervention be geared to an individual community’s specific needs and have, wherever possible, the full support and involvement of all levels within the community.
It was evident to the committee when taking evidence that those programs which are successful and have sustained results are those which are accepted across the board and have this depth of community support. Given the intermittent and scattered nature of outbreaks of sniffing episodes, it is essential that interventional strategies are put in place quickly when an outbreak is reported. This would assist in minimising the spread of the problem and the harm to the fabric of the community.
The cost of placing intervention services in every community with a history of sniffing or dysfunction is huge. The recruitment of enough skilled people to staff facilities in each community also poses many problems. The committee considers that funds and resources could be better targeted to petrol sniffing by establishing and training regionally-based culturally-responsive teams to intervene when a bout of sniffing breaks out. The role of these teams would be to support the community itself, using and supplementing the existing services infrastructure to deal with the issues of intervention, assessment, treatment and diversionary programs when needed.
The committee proposes that the team or teams would move quickly into a community when a problem is identified to put in place immediate interventionist action and assess the medium to longer term needs for treatment and diversion. Importantly, this should also include a capacity to train members of the community including how to deal with people when they are on a petrol high in what are often explosive circumstances.
Full consultation with the community when developing and delivering programs and services is a given. However, it is inappropriate to expect a community to deal with these issues alone. Too often, remote communities are expected to take responsibility for their own drug problems and deal with them on their own. Remote communities are often called on to take ownership of problems to an extent that would never be expected of urban communities. In fact, in the urban situation it would be highly discouraged.
During a number of community meetings, parents and others pleaded for government intervention to prevent sniffing. Too often, people feel unable to deal with a situation and are looking for support through intervention by the authorities. The legislative powers to do this should be explored. At the very least, police should be able to impound petrol and sniffing implements, and then deal effectively with the sniffer, depending on the circumstances if at risk of harm to themselves or others. Most people would agree that locking up sniffers, particularly as they are almost always juveniles, is not the answer to the problem. But there is a need to protect them and others in the community, and to compel them to undergo some form of treatment and rehabilitation when this is warranted.
The Police Administration Act provides police with the power to apprehend, without arrest, a person who is drunk, keeping them in protective custody until they are no longer a threat to themselves. Similar legislative provisions for dealing with people needing protection while under the influence of petrol are also needed. Apprehending or otherwise removing a young person from the source of harm in itself is not sufficient. There need to be safe houses and other places where they can be taken, where they will be safe and restrained, if necessary, so that they are unable to hurt themselves or others.
In the medium to longer term, intervention and treatment needs have to be assessed and alternative pathways to a healthier lifestyle that does not include sniffing found. This may also require legislative changes to mandate treatment.
A networked response by government agencies provides an opportunity to skill community people, especially the younger people, to work amongst their own youth. It is recognised that the provision of initial skills training will require ongoing supplementation to capably support them in this role. The committee considers that the provision of skills and training through a recognised program could be provided through community education centres established to meet the needs of youth from the various communities. As well as providing employment opportunities relevant to a particular community’s needs, it would provide the opportunity for increasing awareness of substance abuse issues which would be extremely valuable for providing peer support and mentoring for young people of a community.
It is essential that health workers, teachers, community development workers, and the like, be given training in dealing with sniffing issues and sniffers. Where a community has experienced sniffing, it is imperative the government workers employed there are given in-depth training to understand the problems the community faces, and how they can best contribute to alleviating the situation. Boredom and a lack of meaningful occupation, either through structured work or recreational opportunities in communities, is given as a major cause for petrol sniffing. While CDEP, or Community Development Employment Program, is provided, it is insufficiently flexible and creative to achieve meaningful outcomes.
The committee urges the Northern Territory government to approach the Commonwealth government to review the CDEP program to allow this level of flexibility. The committee also noted that it should be the goal of all governments that there be full gainful employment in communities. Whilst it is acknowledged that it is a major challenge to provide for economic enterprise within many communities, it is imperative that this remains the medium to longer term goal.
Providing skilling and training to targeted community members to undertake available employment opportunities in communities is one avenue. Similarly, evidence shows the importance of quality sport and recreational programs in maintaining young people in meaningful activity. It was also noted that sport and recreation programs are limited to normal working hours. Too often, the committee was told that sports, occupation and artistic opportunities were not provided after hours when youth had little alternative activity to occupy their time and, as a result, were more vulnerable to engaging in sniffing. This also seemed counterproductive as, of course, it would be desirable that young people were at school for most of the normal working hours.
The committee also took evidence that deficiency in data collection had led to a lack of appreciation of the extent of the petrol sniffing problem and its impact on health, as well as its contribution to death rates. Morbidity and mortality data may not record that petrol sniffing was the underlying cause. This also applies to available data on violence and crime. The result is that the overall impact of petrol sniffing is not recorded and therefore its full impact is hidden from researchers and policy makers. This needs to be addressed urgently.
Avenues for positive peer influence exist through advertising programs and the inclusion of information on the damaging effect of sniffing and drug education programs which are part of the curriculum. However, care needs to be taken that in so doing, petrol sniffing is not glamorised or in any way made inviting to impressionable youth.
The committee considers that the petroleum industry has a role to play in combating petrol sniffing problems, and encourages dialogue with industry to develop coordinated responses because private industry is often able to respond faster than government to deal with emerging problems. This provides an opportunity to make a real difference in combating sniffing. It is acknowledged that this is already happening with at least one private company in Central Australia, and I spoke of BP Australia’s involvement earlier.
As well, ways to reduce the availability of petrol in forms which are harmful when sniffed, but are still able to effectively fuel vehicles, need to be further examined. The introduction of Avgas and Comgas into communities has been successful, but the indigenous population of remote communities is as mobile as any other, with ready access to regional towns and centres. The feasibility of expanding this strategy on a regional basis should also be explored.
The committee considers that it is time for the Northern Territory to act decisively to wipe out petrol sniffing. The conservative costs of full-time institutional care today for a person who is mentally debilitated through sniffing is $160 000 per annum if being provided in an urban centre, and the cost more than doubles when this has to be provided at a remote community. The human cost to the Northern Territory is so much greater. The failure of petrol sniffers to achieve their full potential will be a loss, not only to their community and to indigenous society, but to the future prosperity of the Northern Territory overall. All our children are important to us, and this should be reflected in our policies and services.
I will now list the committee’s 17 specific recommendations:
Madam Speaker, at this point I would like to acknowledge that government has already committed $10m for petrol sniffing initiatives over the next five years and has indicated that it will use the recommendations of this report as a basis for the spending. I look forward to having discussions with the appropriate ministers regarding these matters.
I extend my thanks to my committee colleagues from both sides of this Chamber and the Independent member of the committee for their contribution to the work of the committee in looking into substance abuse in the Northern Territory in general and with respect to this report on petrol sniffing in particular.
I came onto this committee in February this year and have been Chair since that time. The fact that the committee has been able to bring the petrol sniffing inquiry to fruition in a comparatively short time indicates the bipartisanship that the committee enjoys.
I acknowledge that there is a dissenting report and this is, of course, included in the document. However, it should be noted - and the dissenting report reiterates this - that that dissention was in relation to one recommendation only and opposition members of the committee concur with and support the report in all other aspects. A bipartisan approach of course allows the committee to be much more effective in undertaking the significant responsibility which has been vested in it by the Legislative Assembly.
I particularly thank the committee secretary, Ms Pat Hancock, and researcher, Ms Liz McFarlane, whose work in assisting this committee in preparing this report is greatly appreciated.
Ms CARTER (Port Darwin): Madam Speaker, I am delighted to rise this evening in support of this report. I have been an inaugural member of the Select Committee on Substance Abuse in the Community and it is great that we have now published the Petrol Sniffing in Remote Northern Territory Communities report.
Madam Speaker, as you and all members of this House will know, petrol sniffing is a tragic problem which from time to time ravages disadvantaged communities in many places in the world. To my mind, petrol sniffing is a symbol of despair. Sniffers are using the drug in an effort to alter their perception of reality. And quite frankly, many people do this. Many people look for some sort of a drug to use to alter their perception of reality and generally speaking it is done in a safe way. Quite frequently the drug of choice in our community is alcohol. Most people are able to consume alcohol in a safe way and they get a bit merry with it and enjoy a night out and catch a taxi home. That is usually about the extent of it.
Unfortunately, there are other people in our community and around the world whose situation is so desperate and so despairing that they seek drugs that are going to basically obliterate the reality of their life and replace it with something different. To my mind, this is the situation with petrol. The problem is that these despairing, poor people who sniff are so desperate to escape that they go to a ghastly substance, petrol.
Petrol is available just about everywhere. It is cheap and for many of these people it is easy to get. I can remember when I my husband worked as a nurse at Oenpelli years ago. We had to be very careful with where we put the car and we used to just leave the petrol cap off the tank because, quite frankly, when you came out in the morning and found the petrol cap had been jimmied off the side of the car it was pretty despairing sight out there in the middle of nowhere. That is what a lot of us did; we just left the cap off the tank and hoped there would still be enough there to get home as I was living in Darwin at the time.
Petrol sniffing is a tragedy. To my belief, one of the problems is that the sniffer is not interested in tomorrow. They have no hope for their future. They do not care about themselves. The end result of this despair is massive self-harm and suffering for the sniffer and those who care about them and for their community. There is incredible cost in any community where sniffing occurs, and it does come along sporadically; it comes and goes in communities over the years. That was the committee’s experiences as we travelled around over the last three years. Some communities have no petrol sniffing, some communities have a little bit of petrol sniffing and some communities have a major problem with petrol sniffing. It does tend to come and go. It is not specific to any one community. That is one of the strange things about petrol sniffing and one of the reasons why the committee is recommending greater research into this area.
There is massive cost, both to the individual, their loved ones and to the community. For the individual, it causes significant physical and mental harm. It also can cause incredible harm to a foetus if the mother is a sniffer. It causes harm if the sniffer becomes violent or abusive. Many people have suffered the consequences of being attacked by a person who has been sniffing petrol. These are the human costs to petrol sniffing.
There is also a financial cost borne by our community which particularly relates to things such as violence and crime which may occur while someone is under the influence of petrol. The cost also relates to the provision of health services. Although I have never personally nursed anyone with a body and brain damaged by petrol sniffing, I am aware that there are patients within our hospitals and our services who are the victims of petrol sniffing. They are often severely disabled and require a great deal of care, which is expensive. There is a financial cost to us. I am quite sure all of us are far more concerned about the personal cost both to the sniffer and their loved ones.
We need to be aware that children are not the only people who sniff petrol, even though they tend to be the ones who do it in greater numbers. This is probably because once a person turns 18 they have easier access to other drugs such as alcohol. It appears, from my observation through my experience on this committee, that adults tend to use alcohol and young people who cannot get access to alcohol may choose to use petrol. Alternatively, young people, as in children and adults, in many places now are taking up the smoking of cannabis at an extraordinary rate.
Adults have been known to be quite substantial sniffers, and I take this opportunity to read into the Parliamentary Record some quotes from a Coroner’s report into three deaths a couple of years ago at the Pit Lands, and this is the South Australian Coroner. I quote:
I won’t name those three people:
I feel that this short, succinct report from the Coroner in South Australia encapsulates many of the aspects which we found during the three years of our study into this sad situation. I was very pleased, as the member for Port Darwin, to participate in the research performed by this committee. I believe the report that has been generated and tabled here tonight is excellent. It is succinct, it encompasses all our major findings, and provides a list of recommendations which I urge the government to implement.
As has already been mentioned, the CLP opposition supports all the recommendations, except for number 6. I will read it into the Parliamentary Record:
This is the only point with which we disagree. As members will know from the debate that was held in this Chamber last week, the problem for us is that we consider the view of putting people into protective custody for a short period of time is not strong enough. I will explain it briefly as we did it in some detail last week. The particular point that we have here is that we feel that the banning of petrol - which is what the government wants to do - or the putting someone in protective custody - which the report is recommending - are not strong enough, given the serious nature and the serious harm that can be caused to a person who is sniffing petrol, and that harm can be done fairly acutely.
The CLP wants to make petrol sniffing illegal, but not with the view that, for example, at the very first instance of a person being apprehended for petrol sniffing, they be thrown into a gaol, but to have it there as a bottom line enforcement opportunity. This is so that other opportunities can be made available to the sniffer, with the hope that the threat of incarceration somewhere – and I cannot imagine it being in a gaol for a young person, but it may be a detention centre – would be such that it would be part of the pressure put on to them to make a decision to do what we would prefer them to do which is to perhaps go to an outstation or some other diversionary program.
I take this opportunity to read into the Parliamentary Record, for some element of completion here, the five dot points from the CLP’S policy titled ‘Tackling Sniffing in the Territory’. What the CLP would do is:
Leave granted.
Ms CARTER: Thank you, kindly. I reiterate that the difference between banning petrol sniffing and making it illegal is the only point of difference that we have with regards to the recommendations in this report, and is the only point of contention between the two parties here in this Chamber. I believe that there is genuine, heartfelt bipartisan concern from all us with regards to petrol sniffing, and a strong desire by all in this Chamber and many in the Northern Territory to help.
In conclusion, I thank all the members of the committee for the work that they have done with regards to petrol sniffing and the other issues that we are looking at. My profound thanks go to Pat Hancock and Liz McFarlane for the wonderful work they have done. Pat, in particular, has been able to pull together a significant amount of information and distil from that, very succinctly, the key points into a very easy to read record which forms our report. I know she has been ably assisted by Liz McFarlane. Liz, of course, has been marvellous behind the scenes organising everything and looking after us as we have travelled the length and breadth of the Northern Territory investigating this and the other issues.
To conclude, Madam Speaker, I hope that this report forms the basis for some great work to be done here in the Northern Territory to assist our fellow Territorians in an effort to overcome the sad reality of petrol sniffing.
Mr KIELY (Sanderson): Madam Speaker, I also make my contribution, as a member of the select committee on substance abuse, to the report on petrol sniffing in remote Northern Territory communities.
I feel the chairman stepped us through the report quite eloquently and succinctly, and her contribution to this debate in tabling the report was quite welcome and refreshing. The member for Port Darwin’s contribution was very good. I will try to keep mine in the same vein.
It is, indeed, a good report and it gets to the heart of the matter. It steps through, quite logically and sequentially, the evidence that we found over quite a lengthy period. It comes down to evidence-based findings, which is a marvellous thing, and some 17 recommendations. They are all headed under different fields so that anyone picking up this document, particularly members of government, can see the direction that the committee has been heading in its deliberations on this tragic pastime which is out in the communities, and has been out in the communities for quite some time. Every now and then it makes intrusions into the regional centres and sometimes on the fringes. This is a volatile substances report as well, and it picks up a little on other sorts of inhalants that we are around the place.
Like the member for Port Darwin, I too have lived out on a community where there was petrol sniffing. It is dreadful to see children of all ages with designer Coke cans containing petrol around their necks, walking around, stoned off their faces, with glazed-over looks in their eyes. You see the kids not so much during the day but at night. They will be out on the ovals sniffing with their music going. They are up all hours causing disruption. Your vehicles are targeted because this is a source of the substance. The sniffers get to them and prise the petrol caps off, as the member for Port Darwin stated, causing damage to the car. They cut fuel lines. I had a diesel vehicle on the community where I was living. The sniffers were not too sure if it was petrol and they cut the lines and did all sorts of damage. They were in search of this substance so that they could get a high from it. I cannot really say whether sniffing is a dependency, but you form a type of dependency on it. These are habits and behaviours we see all of the time.
The Minister for Family and Community Services, particularly when she was a member of the committee, told the story about Mutitjulu with parents trying to help babies go to sleep by putting petrol in the nappies and letting the baby sniff it. That is part of the extent of the problems out bush. This is what the committee has discovered on this particular investigation. This is what the report highlights. It has been tabled in parliament and asks the people of the Territory, through their government, to address this. It is a large segment of the community that is suffering. It is a great human tragedy out there and we as a community need to address it.
This is not a black problem; this is a substance abuse problem. Substance abuse is a problem for all the community - black, white or whatever - it goes across urban, goes across remote, goes across the rural areas, and it is something that we as a community, we as a parliament, must tackle. That is why the recommendations we have made are formed in such a way.
I have mentioned before my thoughts on how we should tackle this. I will go to the issue of giving police the power, which is recommendation 6, which seems to have caused, not angst, but a different view point within the committee and within the parliament about how it should be handled. Recommendation 6 is legislation similar to that which provides the apprehension without arresting an intoxicated person under the Police Administration Act be introduced to allow for persons under the influence of petrol to be taken into protective custody. Members may recall that on 30 March 2004, when speaking to the interim report on issues of alcohol abuse, cannabis abuse and inhalant abuse, I said in this House:
When I said that, the member for Araluen jumped up and said: ‘Bravo, marvellous, this is just wonderful’. She even quoted me in her speech at the introduction of the Summary Offences Amendment Bill (no 2) on 19 May 2004 saying:
I do not know what has happened in the intervening time because when we were debating the Summary Offences Amendment Bill (No 2) last Tuesday, the member for Araluen started calling me a cretin and a fool, and launched into me as she is want to do every now and then. Somehow, between then and now, I seem to have fallen off my perch. I am used to the member for Araluen climbing into me in all sort of different ways, but it just goes to show what a difference a day makes, doesn’t it?
It is important to note that I do not resile from those comments, but they were never meant for interpretation the way the member for Araluen did. I did not then, and I do not now, believe that we should lock people up for this. As the minister said, you cannot get around the fundamental principle, which is one of the cornerstones of democratic society, by simply labelling an illness a crime and sending people to prison as a punishment for being sick. And that is what these people are. They are ill, and we should treat it as an illness. This is what recommendation 6 of the committee acknowledges: that petrol sniffing is an illness and we should treat it as an illness. We should not treat it as a crime and lock people up. The member for Araluen got a bit carried away with it all and jumped on it.
I will now go to the dissenting report which is all based around recommendation 6. The member for Port Darwin explained the reasons why the dissenting report would be in there. It is interesting to see that it is the Country Liberal Party parliamentary wing dissenting report; it is not the opposition members dissenting report. I think they were a bit boxed in on this one.
A member: We were not.
Mr KIELY: Well, these are my thoughts. These are my thoughts and they are certainly not the thoughts that have been put to me. I, by no means, attribute any of those statements there to the opposition members. They did not say that. These are my thoughts and let me clarify that for any opposition members on the committee.
In her contribution to the Summary Offences Amendment Bill (No 2) last Tuesday, the member for Port Darwin stated:
About the only thing I agree on is that we need a policy. Members will notice that the member for Araluen submitted her bill - I think, it was a month, the following sittings - after we did the interim report. She rushed in because she could see the way that the committee was heading and, as she has done on many occasions, she has profited by other people’s grief and has jumped in and made out that she is the political saviour.
We have seen it on petrol sniffing, we see it in all the bills we have recently introduced about child pornography and protecting the rights of victims of sexual abuse. The member of Araluen has form. She also did it in her portfolio of Tourism. She was always trying to claim credit for things that had already commenced.
Madam SPEAKER: Just get back to the report, member for Sanderson.
Mr KIELY: Yes, Madam Speaker, but it builds on the basis of …
Madam SPEAKER: Member for Sanderson, back to the report.
Mr KIELY: It builds on the basis of why we see this dissenting report in here. The member said that the CLP had to rush out and get a policy and put it in place ‘because we were sick of waiting for something to happen’. If we have a look at the report we are tabling tonight, Petrol Sniffing in Remote Northern Territory Communities, and then we go to the Senate Select Committee on Volatile Substance Abuse 1985 on which sat two very well known senators, one from either side, from the Territory, and we had a look the heading Causes, they have noted:
It went on to list a range of causes and responses. This is from 1985. As we have heard time and again, it has been the CLP, here for 27 years until 2001, that had carriage of passing of all the laws and setting the direction for this community.
In 1985, this comprehensive report on petrol sniffing was out and about, and it took until some four months ago, for the CLP to say: ‘Oh, my dear! Oh, boy! We have a real problem with sniffing. We have just discovered it. We are in a hurry. This committee is not working hard enough. We have to act quicker than the government on this’. It just does not wash, Madam Speaker. Since 1985, we have clear, conclusive evidence that petrol sniffing has been a problem. The member for Macdonnell, who was a serving policeman prior to coming into this place some seven years ago, would have encountered petrol sniffing. Three years ago, before they went into opposition when he was a member of government, he had been the member for Macdonnell for four years. He would have had to have seen sniffers on communities and known the disruption and the plight of the people on those communities. He would have to have seen it and if he did not, he stands condemned. If he did, he stands doubly condemned because he did not do anything.
You have a sitting member of a bush seat, out there, who is an ex-policeman, who one can assume knew what was going on out there, and did nothing. Did nothing. I say ‘did nothing’ because where is the evidence that he did anything? Where is the evidence?
To come into this place and say we have this great bill and we are going to put it in because we have identified there is a real tragedy out there, is wrong. He is wrong and the people of the Territory need to know that. They need to know why the CLP was so quick to try to gazump …
Madam SPEAKER: Member for Sanderson back to your report, please.
Mr KIELY: I am back to the report, Madam Speaker: why they gazumped this committee’s report; why they jumped last week before we tabled this report.
It is also interesting that in this report it says that:
It goes on to say potential other responses:
Once again, we have a body of evidence that, back in 1985, communities did not want their kids locked up. We found that out when the committee travelled around in 2002-03. It is clear in there. It is clear in other reports. In other jurisdictions such as Victoria, Queensland, Western Australia and other countries such as New Zealand, they do not want their kids locked up.
If the member for Araluen was so keen to help these ill people, and to help fix the dysfunctionality of the affected communities, why then did they bring in sentencing provisions in their proposed bill? Why? If, as they stated, the intention is not to lock up anyone, why have it there? It just does not wash. It is mandatory sentencing through the back door. We are not having it. The committee is not having it. We do not see it in there. We do not see it as a need.
Once again, the majority of the committee has found - and I will get back to it - and is of the belief that locking people up is not the way to go. All the committee, I believe, because it is under recommendation 6, and it is how we treat it, which is being contested in a dissenting report, do believe that sniffing is an illness.
I commend the secretariat staff, Pat Hancock and Liz McFarlane for their work. I also thank fellow members of the committee. It is, arguably, the best committee to work on in the parliament. I believe the opposition members and the government members do try their best to work together. We do work together, and that goes for the current members. It also goes for the past members. The desire is there. It is a bit unfortunate about the dissenting report. We do not usually see it in this committee. I believe that events overtook the committee on this one. Once again, I will state these are my personal views, Madam Speaker, they are not the views of the opposition members, but I do believe that there were some external pressures which helped process in the thinking pattern and why we got to a dissenting report.
That being said, it is a pleasure to work with the four members of that committee. There is still much work to do. The sniffing will be picked up. The recommendations are there. Government will have a look at them. Government has already said it will provide $10m over five years with $2m up-front. So no, there has been no actual policy rolled out, or bill rolled out. The framework is there. But the government has shown up-front that they have been waiting for this report to come down so that it could act. This is the proper way to do things: wait for the report; analyse the recommendations. Government has said it has the money up-front, now we will get to work on it.
The committee does not know which way the government will act on it, or what recommendations it will pick up. I, as a committee member, am very encouraged by it. I certainly hope the government goes with recommendation 6 as it stands. I do not hold with the dissenting report - never did, never will. Never was it my intention that people be locked up. The CLP can make mischief with it as much as they like. I stand by what I said here tonight and the other month: let us not have mandatory sentencing through the back door. If we lock up sniffers - detention for little Aboriginal kids on communities – we are right back to where we started from. It is a sheep in wolves clothing; let us not go there. Let us not disguise it. Let us admit that we have had this problem for over 20 years. Let us get the saying right, I think the member for Johnston was saying. Let us call it what it is. We have a terrible problem out there. Let us get on with the job; address it, and not make political gains and try to grandstand on the back of some poor families’ and individuals’ misfortunes, because that is what we have been seeing from the member for Araluen, who has a dreadful habit of doing it time and time again.
Mrs MILLER (Katherine): Madam Speaker, I have to say that the member is quite entertaining.
Tonight, I speak to the report by the Select Committee on Substance Abuse in the Community relating to petrol sniffing. I have been on the select committee since February 2004, which is a very short time in comparison to the majority of other members. However, it has been a very interesting time.
Substance abuse in our community has long been a grave concern to me, so I welcomed the opportunity to join the select committee to be able to contribute to the findings and, hopefully, make a difference to such a horrendous problem that is afflicting so many young people in communities throughout the Northern Territory and in other parts of Australia.
Having read through numerous findings that have been collated by the substance abuse select committee before my time, it is obvious that the topic we are reporting on today – the voluntary inhalation of volatile substances - has been of concern to not only Territory governments but federal governments going back 20 years. I hope that this government will take the findings of this report and action it very quickly.
The committee visited many regional and remote communities before I was appointed, so my knowledge has been gained through reading the findings, briefings and listening to other members experiences, as well as what I have witnessed myself over the years.
There is no doubt that petrol sniffing is considered the poor man’s drug. It is also certain that boredom contributes to this practice, which is very worrying. However, it is an area that can be addressed. It highlights the problems that remote communities experience with their high numbers of petrol sniffers. In not having an economic base from which to operate, they have nothing to work towards - nothing different from day to day. Petrol is cheap and easy to obtain; in their eyes a great way to escape the monotony of day-to-day life. It is very distressing to witness petrol sniffing when you know just how much damage is happening to the inhaler, and also very frustrating at not being able to step in, at the moment, and to do something about right there and then.
I have some very dear friends, John and Judy Neilson. My friend, Judy, has never lived on a community before and, for the last four months, they have been relieving at Amata Community general store which is the Pit Lands in South Australia. They have been helping some friends out while the friends had a break. It has been the biggest shock of my friend’s life to witness petrol sniffing daily, and very distressing to her and to her partner. She would dearly love to see something happen.
As parliamentarians, we have a responsibility to ensure that sniffers are protected, and we need to do that through legislation to give authorities the power to get in and help these people. We need to ensure that they have the inhalant taken away, and they are taken to a safe place - either their home or to a designated area where they will be taken care of. If it is necessary to remove the affected person, they should then be moved into a program that would assist in their recovery from petrol sniffing.
On many occasions, comments have been made to me about the role and responsibilities of petroleum companies in addressing petrol sniffing, in the same way that there is an expectation on liquor outlets to take some responsibility for the abuse of alcohol. When the chair of the substance abuse committee, the member for Nightcliff, and I were in Canberra to attend another conference in June of this year, we took the opportunity to meet with members of the petroleum industry of Australia, along with Pat Hancock. We had planned to take a softly, softly approach with these members to see how they saw their responsibilities towards petrol sniffing, or if they even thought they had any responsibilities. We were very pleasantly surprised to hear that one particular petroleum company, BP, was well aware of the problems. They had visited a particular community in Central Australia and witnessed for themselves the suffering of addicted people and the effect on their families and the community in general.
As a result of that visit, they felt a responsibility to tackle the problem, which is highly commendable of them. They have implemented a rehabilitation program, which has been running for over 12 months prior to our meeting with them. The results of their achievements, even in that short space of time, was heartening; more so, that they were not taking a rush-in, rush-out approach. They are prepared for ongoing support and, in addition, are investigating other ways of reducing the opportunities for petrol sniffing. I congratulate the national petroleum company for taking the initiative and becoming involved in this rehabilitation and recovery program and would hope that, with the success evident in this first community trial, these programs can be extended to support other communities in the future.
With the list of recommendations that the select committee has provided to government to consider, and which are hopefully taken up, I know we can make some serious in-roads with the problem of petrol sniffing. It will not be easy to do and will take serious, long-term commitment by government to reduce the problem. The cost to the community of caring for a person who has serious brain damage from petrol sniffing is estimated to be around $160 000 per year, so the cost of any programs implemented by government to address this serious issue are well warranted and justified.
I support the comments of my colleague, the member for Port Darwin, in relation to the policy that the CLP has developed and I will not repeat that policy because she has read that into Hansard.
While the topic of this report is petrol sniffing, I would also like to talk about another problem that we have, which is alcohol consumption within the Territory. Excessive alcohol consumption is the most serious of problems that we have in substance abuse because of the effects on so many families and communities throughout the Northern Territory. I speak from my experiences with antisocial behaviour, which is proportionate to public drunkenness that we, unfortunately, witness in Katherine and in other communities in the Northern Territory, and have been doing so for many years. There is barely a day goes by in Katherine without tourists, businesses and their customers in the main streets and along the river bank in Katherine, having the unfortunate experience of witnessing drunken behaviour. Unfortunately, in a lot of instances, this drunken behaviour is also associated with violence. In at least two cases of which I am aware, babies were left on footpaths by parents who were incapable of looking after them. Fortunately, in both of these cases, passers-by rescued the children and kept them in safety. I dread the day that a child will be left in a location where they are not visible and will not be rescued.
I have, over many years, spoken out in frustration about the lack of action in addressing antisocial behaviour and the economic impact that this behaviour has on communities. Over the 10 years that I was operating Red Gum Tourist Park and involved in the tourism industry, it was a constant concern of visitors who, when driving into Katherine and other regional towns in the Northern Territory, would get a very bad first impression. They would express their feelings to us and they would range from disgust, fear, anger, dismay, disbelief and pity, and it does not matter what we say to them - that first impression always counts. A business owner who repairs caravans, campers and trailers in Katherine told me just recently that when repairs are required, invariably he is asked if they can be done that day so that they could leave town before dark. Not a positive impression at all, and one that gets passed on to other travellers when they meet elsewhere.
The Minister for Community Development talked today of the Community Harmony program that has been implemented in Katherine first of all, and how successful it is. There is no doubt that some of the programs are working to some extent and that is a great thing. I know that we do have to be patient to have better outcomes from some of the others. The issue that concerns me, and always has, is that these programs only address some aspects of the problem that the regional communities are suffering. Whether this government wants to acknowledge it or not, there needs to be, in addition, much tougher programs that pick up the people who do not fit into any of the Community Harmony programs or just do not want to fit into them. I could go on into this area further, but I will do so at a later date.
I acknowledge the excellent work that is being done in Katherine through the Neighbourhood Watch program, which has only been in Katherine for a few short months. Their presence and assistance in addressing urban issues that Katherine faces is greatly appreciated and is being embraced by all sectors of the community. I am very confident that Neighbourhood Watch will, with the cooperation of the community, have very successful outcomes in Katherine.
I express my disappointment at the way the select committee on substance abuse has been treated by the Northern Territory government, with the announcing of the recommendations on petrol sniffing by the Minister for Family and Community Services prior to the recommendations being tabled in this Assembly. I consider this a slap in the face to the hard-working committee who have put in a concerted effort over the past three years. I appreciate that the Minister for Family and Community Services was the Chair of this committee until the beginning of this year, but she is not now. I once again my express my disappointment at the action she took by going to Alice Springs to make this announcement prior to the recommendations being tabled.
Unless I misunderstand, select committees are established by government to investigate problems and to make recommendations for government to act upon. I hope that these committees - which take up a lot of people’s time over a long period - will, in the future, be afforded the respect of waiting until the Chair has handed down the report.
I fully endorse the 17 recommendations that have been handed down in this report. I, like previous speakers, congratulate Pat Hancock and Liz McFarlane for the extremely hard work these ladies do behind the scenes. They have been a great support to the committee. It has been a pleasure to work with the members of this select committee on substance abuse to date, and I look forward to continuing in the future.
Mr WOOD (Nelson): Madam Speaker, I do not want to repeat what other members have said. The Chair of the committee, the member for Nightcliff, summed it up extremely well. Hers was an excellent report, and I do not intend to repeat that. If people are looking for a good summary of this report, I suggest they read the member for Nightcliff’s report in Hansard.
I will say a few things, of course. We all know that petrol sniffing is major problem in Northern Territory communities, remote and urban. People have to realise that this committee has had to deal with three issues during its life over the last three years - alcohol, cannabis and petrol. I know that there was some dissatisfaction in the speed at which this committee came to conclusions about where we should go. People should realise that we had to travel many miles, go to many communities and have many meetings, and we had other work to do, like most parliamentarians. We were dealing with three issues at the same time. Some of that workload was taken away from us when the Alcohol Framework was put in place and that gave the committee some more time to concentrate on the two other issues of petrol and cannabis.
Looking back at my travels around the Territory as part of this committee, I would like to record some of the impressions I had. Most communities I visited were in a state of not necessarily total breakdown, but they were fairly depressing places to visit. Perhaps that is symptomatic of the problems we have. We are dealing with petrol sniffing, but are we dealing with other problems and petrol sniffing is just one of the symptoms of what we see? Many communities certainly had houses in states of disrepair; they were not that tidy. I am sure that years ago they were much better than they were. I think what we were seeing was symptomatic of a much larger problem, that is not only a lack of self-esteem in one’s community but, I believe, a move backwards from years gone by.
The reason I say that is because, years ago, we had full employment. We do not have full employment now. Years ago, we had vegetable gardens and other forms of industry. In many places, we do not have that any more. Years ago, most of the kids went to school. I am afraid that does not happen so much these days. I feel that, although we have all these recommendations before us, if the Commonwealth does not step in – because there is much funding required - we are not going to get anywhere. I will still say that employment is the key. It can be followed by education and good housing. However, if we have people sitting down with nothing much to do, boredom, as one of the speakers previously said, takes over and people get into trouble. People are looking for other thrills and petrol sniffing is one of those results that we see now in our communities. We have to give people gainful employment. We have to give people goals. At the present time, we are not giving them that. That is going to take a lot of work. It is going to take a lot of work from the Commonwealth, from the Territory and from different communities throughout the Territory. There has to be a will to do it, otherwise we will just keep pouring good money after bad.
One of the other impressions I got was our trip to Yuendumu. That will stay with me for the rest of my life. Yuendumu, as you know, has a program to help petrol sniffers, where those petrol sniffers are taken out to Mt Theo, which is about 45 km to 50 km from Yuendumu. It is not exactly within walking distance of Yuendumu, so it is not a bad place for young petrol sniffers to be taken. When we went there we were shown two saucers: one with petrol and one with water. The one with petrol had a lump of butter in it, and the one with water had a lump of butter in it. As you would realise, petrol and butter do not really mix, and the butter just fell to pieces. That was to try to show people, including us, the effect that petrol had on the brain. The brain just about dissolved. I do not know who thought up that method of teaching people, but it certainly leaves an impression. I gather Mt Theo and Yuendumu have some problems at the moment, and I hope they can overcome those. Mt Theo has certainly been put up as the model – at least one of the models – for trying to overcome some of the issues of petrol sniffing.
I will just take a slight jump from my notes when I talk about Mt Theo, and look at the one contentious issue that the select committee has had to deal with, and that is the manner in which we approach intervention when it comes to people who are petrol sniffing. As recommendation 6 says:
The minority findings of the two CLP members - which I believe is the way it should be worded rather than the ‘parliamentary wing’s’ version of events - is to make the sniffing of petrol and other toxic substances illegal. I do not think we are too far apart. In fact, it is a pity that we could not have actually sat down a little more and worked through that. I imagine the CLP would have had a problem with that, simply because the parliamentary wing had already set the policy in place. That would make it fairly difficult for those members to come on the committee and discuss and work through those issues and see if we could have come up with some common ground because, basically, they were repeating party policy. I suppose, unless they have been given permission to move from that policy, then their hands are tied.
My understanding of the Police Administration Act where people can be apprehended without arrest, is that it was not just a matter of saying: ‘We will put them in the lock-up or safe house or whatever for two days or one day’. That recommendation has to be built on, and we have to look at the possibility of court intervention with the families and with the health department, so the court can decide that this person should be taken, for instance, to Mt Theo. Mt Theo, at the present time, is successful because the community or the families say: ‘We support it, and that child will go there to help that person overcome the problems with petrol sniffing’.
All I believe this recommendation is doing is setting the framework for that to occur. It is giving it some legal basis where, if it requires an order from the magistrate to say this person must go to some drying out area, some safe house, then you have the legal backing to allow that to happen. That is why I do not think there is a great difference between the two.
My other reason for supporting that particular recommendation is Dr d’Abbs. When I asked him whether he thought that the arrest of people for petrol sniffing would be a good suggestion, he said no. He pointed to civil apprehension laws in Queensland, and believed that that is the way we should go. Dr d’Abbs is a person who has long experience in the Northern Territory with regards to substance abuse. It is certainly far more experience than I ever had. I do not regard him as a quack; I regard him as someone who is seen, in communities, as having long experience in these matters. I took his advice, and that is one of the reasons I also supported this.
Another reason is that even though it has been said that although people would be arrested, they were not going to be put in gaol and they were going to be given some juvenile diversionary programs, not everyone is a juvenile. Petrol sniffing goes further than that. As a 20-year-old person would not be a juvenile, then there is a fair chance they could be arrested, charged and put in gaol unless there was some other program established. The Police Administration Act is not distinguishing between juveniles and older people; it is just saying those people who are intoxicated with petrol can be picked up. I believe from then on there should be some intervention from the courts to see what the next best approach is.
As I said, I do not believe we are too far apart. It is just a pity there was a bit of politics that came into it. Obviously, some people felt we were too slow, and I suppose that is a fair criticism. However, there were some reasons for that happening. The reason the government decided to jump in early was because it could see one side coming up with a policy and it needed to make sure it had an answer to that. Of course, all this happened before the report was brought down today. That was a little disappointing.
Be that as it may, we are not going to concentrate too much on those issues because the important thing is that we need to support these recommendations - the government needs to support these recommendations. I believe it should be taking the No 1 recommendation to the Commonwealth. The No 1 recommendation talks about the need for the federal and Northern Territory government services to be closely networked to ensure their respective petrol sniffing programs and services are coordinated etcetera. That is the key; we have to start putting a combined effort into this problem.
We also need the federal government to review their CDEP program, as in recommendation 11. I know my colleague from Barkly and I believe that we should be aiming at full employment on communities. That is a key and yet we have gone nowhere. We need to ask the Commonwealth government to seriously look at trying to make sure there is full and gainful employment on our communities - another area that we have to work together as governments and that is extremely important. I spoke last night about the delivery of sporting and recreational programs as mentioned in recommendation 11. That, too, is important but we must make sure those people working in the field are working at the times when they are needed – not 9 am to 4 pm, but 4 pm to 10 pm, and on weekends as well. Whatever hours they work, they have to be worked around when the community needs them rather than a strictly public service 9 to 5 approach.
There are many other recommendations there with which I agree. I am especially pleased to see No 16 which is about the Northern Territory and Commonwealth governments working with industry to encourage further research in developing fuels which are non-intoxicants. I have believed for a long time that we must involve industry. There is nothing wrong with going to see industry and saying: ‘We are not blaming you about your product. Your product is a perfectly legal product that keeps the world going. There are problems with that product, that is petrol, and is there any way that you can help as a good corporate citizen’. The member for Nightcliff, the Chair, has already spoken about how BP is already running programs and we did not know anything about them. That is fantastic and I hope the good work that BP is doing is eventually well and truly publicised because we did talk about big multinationals and big companies and probably say, oh yeah, making big profits.
Here is one company trying to do something for our community in this area. I hope some of the other petrol companies also help out because it would not be much good if one petrol company eventually comes up with a product that is its own product and the other companies are still selling their own brand of petrol which is still causing problems. Hopefully, petrol companies can all get together and work to achieve an outcome which would be good for all these communities.
I do not have much more to say as most of this was said earlier. I will make one other comment on the dissenting report, of which I made a note here. I actually agree with the four out of the five policy dot points that are in the report. I certainly believe police should have the power to dispose of petrol and other toxic substances similar to pouring alcohol. We need to develop state-of-the-art treatment programs because it is no good either arresting people or apprehending people if you have nowhere to take them. Dr d’Abbs mentioned that in his report. You have to have these places that the police can take them because we know there are some difficult issues with nabbing petrol sniffers and, as I mentioned previously, they can get a heart attack or cardiac arrest if chased. One has to be very careful and might have to be trained in dealing with these people.
The CLP has said to legislate to give courts the power to order sniffers to attend detoxification programs. That is exactly what I was saying before, but that you go from the apprehension to a judge who will make that decision, along with other people who will help the judge make the right decision we hope. Also, legislate so children who are sniffing can be taken into care for their own protection so they can undergo treatment. I do not have any problem with that either because we must protect children. Part of our debate today was about protecting children and that is important.
I do not wish to dwell on that any more. The report is self-explanatory. Anyone who wants to know what is in here just needs to go to the recommendations sections and see what evidence was put forward to back up those recommendations. I hope the government will make a long-term concerted effort, rather than a three-year program, to ensure that we have the will to take on the issue. It will not change overnight.
I also thank Liz, Pat and Kim for all the work they have done in some fairly difficult circumstances. They sat under a shady tree with wires all over the place and dust blowing and sometimes could not hear what people were saying. I remember once we had the women in one area and the men in another. They might have recorded the women’s meeting, but they did not record the men’s meeting and we had to take notes. They had some interesting places at which they had to record meetings.
I thank Marion Scrymgour and Chris Burns, the original chairs; they did a terrific job in the time they were on the committee. I thank present members, Sue Carter, Len Kiely, Elliot McAdam, Fay Miller and I should not forget that Richard Lim was on the committee for quite a while.
If nothing else, I have learnt much being on this committee. It gives you an opportunity to see the Northern Territory, where people live, the remoteness in which they live. I have been to Aboriginal communities but, generally speaking, after you have been to Lajamanu, Daly River looks like it is just down the road. There are some places that are a long way away and they have special conditions which must make it difficult for government to deal with.
I thank everyone involved in putting the report together, all the members of the committee. I hope people will read this, and I hope the government will do something practical and positive about the recommendations. Hopefully, we can come back in 12 months time and see how many of the recommendations we have acted on. There is no use having recommendations if there are no outcomes.
Mr ELFERINK (Macdonnell): Madam Speaker, it was not my intention to contribute to this debate, but, sadly, debate took a direction that forces me to make a few comments.
Even when there is a dissenting report, occasionally sides can agree to disagree. As the member for Nelson pointed out, the difference is certainly not enormous considering the policy approach. Nevertheless, while everyone is almost agreeing, I find myself, who has had nothing to do with this report whatsoever, under attack from the member for Sanderson. That is fine; that is his right. I have no major problem with that, but it does give me a right to respond to his criticism.
I did assist with drafting the policy for the Country Liberal Party in relation to petrol sniffing, and he said I should have acted on it more quickly. Perhaps he is right. When one launches into an attack - and this is the advice I give the member for Sanderson - I suggest that it is smarter to do it from a position of strength.
The member for Sanderson said it has never been his policy at all that petrol sniffing should be made illegal. That is him putting distance between the ALP’s position and the CLP’s position. That is fine. I do not have a major problem with that. However, I draw members’ attention to a speech that he made on 30 March this year. I will quote the appropriate paragraphs:
My advice to the member for Sanderson is simply this: if you are going to come out of the corner swinging, by all means do so; but do not do it with one hand tied behind your back. That is what he has done. Okay, he can attack me; I do not have a major problem with that. But he has done a position change which, in Olympic Games terms, would be a triple somersault, two-and-a-half backflip pike, of backflips. The attack is, quite simply, stupid because, if he has forgotten what he said a few months ago in this House, then he has a condition which must be parallel to early onset Alzheimer’s. Or he has simply come into this House and, by standing here and saying, ‘I have never held this position’, he has sought to misinform members, and people of the Northern Territory.
I wonder, in terms of the debate, what is the smarter approach? The smarter approach would have been simply to say: ‘I once had a position and I have changed my mind’. But to try to bluster and force your way through, and say that I never said that, and those sorts of things, when he quite clearly did – and he is on the Hansard record – just demonstrates a level of arrogance that will not be appreciated out there and is not appreciated in here.
My advice to the member for Sanderson is, if he wants to belt me, by all means go ahead. But for pity’s sake, do not do it so you end up walking away from this Chamber looking like a total goose.
Mr McADAM (Barkly): Madam Speaker, this evening, I too speak in respect to the Select Committee on Substance Abuse in the Community’s report on petrol sniffing in remote Northern Territory communities.
I, too, applaud the chair of the committee for a very comprehensive and professional response. I agree with all the other speakers. She has covered it very eloquently. Accordingly, I will not be dealing with all the issues in respect of the report. I will deal with some of them.
Much has been said and much has been written. There have been any number of research projects, and I suspect that there will be many more into the future. I do not mean that to be interpreted in a negative sense, but in the hope that we will change our mindset in how we deal with, and how we respond to, in the main, our young people in the bush, not only in respect to petrol sniffing, but to a whole host of social issues which impact upon them on a daily basis.
A closer examination of the body of the report, and I refer to page 20, where the very respected Jawoyn Association in Katherine gave evidence regarding substance abuse to the House of Representatives Standing Committee on Family and Community Affairs. I believe this is very much indicative of some of the conditions that apply in indigenous communities. I do not know exactly when this evidence was given, but I believe it is something which is still very familiar right across the Northern Territory. I will just highlight some of the issues and problems that impact on our people, and particularly our young people in the bush.
I refer, in part, to their submission, where they refer to overcrowded circumstances, where you have extended family groups of eight to nine people, ranging from babies and school kids, through to aged pensioners, living in a three-bedroom house. It goes on to describe some of the conditions in that house; how it is noisy most nights of the week. It describes how most adults are employed or under-employed on local CDEP projects. It describes how much of the money that comes into that household is spent on grog. The kids are mostly hungry, which makes it impossible to go to school the next day, and some of the older kids in the community drop out of school, either through truancy, or there is a lack of secondary education. Most of those kids that I have just described are too young to go into CDEP.
It describes the importance of the role of older people in that community, in that household, where there is pressure placed on grandma to get the dollars so that members of that extended family can go into town and get on the grog. It describes the domestic violence that occurs in that household. It is not a very pretty picture at all, and is something that I do not think we should be proud of. It is something that provides the impetus to us, as a government, to work towards dealing with some of these issues.
I heard some of the other speakers tonight talk about experiencing some of the traumas and emotions that go on in an indigenous community. I too lived in an indigenous community, probably in excess of some 20-odd years ago. That community was in South Australia. I will not identify it. I worked there for a period of three years and became very close to that community. There was no CDEP on that community at all and there were very few non-indigenous people. The community was very much in control of its own destiny in those days. Grog was minimal and, of course, there was not any ganga in those days. However, there was petrol sniffing.
I experienced the devastation that can occur to a very tight-knit family. There was a man who was married and had three children. That particular person was the hardest worker I have ever known - black or white. He would wake up at the crack of dawn and be out there pulling bores. He would be out there fixing yards and knocking off at evening - a very hard-working man, a family loving man; he loved his kids. The scourge of that community was petrol sniffing and, no matter how much he provided support, two of his boys took up petrol sniffing which brought him a great degree of sadness and concern. He tried everything possible he could do to address that particular issue, to the extent that he would flog his kids almost to an inch of their lives. It was all to no avail because both of those boys died because of petrol sniffing. A few years later, he died. I am not suggesting in any way that it was the reason but I know he took up drinking. He would often say to me he would despair of what petrol sniffing did to his two young boys.
I just relate that to this parliament because it is a very insidious social condition that impacts upon families. One of the things that concerned me at that time, was that we all knew it was going on - when I say ‘we’ I mean those people who had relationships with government agencies, not here in the Northern Territory but in South Australia - and the standard response at that time regarding all the issues that I have just described was that, ‘It is a council responsibility, you deal with it’. If it was not that, it was, ‘A community responsibility, you deal with it’.
It has become very clear over a long period of time that that mantra has continued to be espoused by certain government agencies right throughout Australia. It is very clear that the communities and councils do not have the capacity to deal with petrol sniffing. It is for this reason that I believe that some of the recommendations in this report go part of the way to addressing the issues of petrol sniffing.
I would just like to refer to some of the recommendations. I refer to recommendations 3, 4 and 5. To summarise them in part, it says that interventions be geared to the specific needs of individual communities and developed in consultation with those communities; that teams of trained workers respond quickly to support communities to implement intervention strategies as the outbreaks occur and not to sit back and talk about it and say how are we going to do it - not to throw a blanket across the responses in regards to how they deal with an issue, but to get in there and to actively work with that community almost on an immediate basis, as the problem arises – and that, of course, being petrol sniffing. Most importantly, this recommendation also suggests that the intervention strategies include training of and support for people within that community.
That is something that we have to look at very clearly: how we provide that on-going support. Much of the training that goes on in indigenous communities these days is sporadic. Many of them are based on the very short term and I do not think that on many occasions, they are hitting the target. We really need to re-think how we do that. Those three recommendations go part of the way to addressing the issue. I sincerely hope that it will be taken up and that there will be a specific coordinated response targeting immediate demands as required by the community.
The member for Nelson previously mentioned the CDEP program. I am a great supporter of the CDEP program. I believe it has some real potential and real opportunities. It is certainly limited in some of the communities where petrol sniffing exists because just by the very nature of those communities, there is not a strong economic base. They cannot link it to other economic drivers that perhaps places like Tennant Creek and Katherine can, where they do work well. Recommendation 11 talks about the Northern Territory government lobbying the federal government to review the CDEP program. It is very timely, particularly with what has happened to ATSIC and the fact that the federal government does not really know what they are doing about indigenous issues, particularly employment. It is very appropriate that we have a look at that.
Recommendation 12 is something that has been very dear to me and that is the sports and recreational programs out in the bush. Reference is made to it in the report. I am glad to say that some of the sports and recreational officers are now actually working different hours trying to respond more to the communities’ needs. I have raised it in this House, by way of a suggestion only, that sport and recreation has a great linkage with the education system, with schools in the community. Somehow, we have to ensure that that occurs. Tomorrow the Masters Games are starting in Alice Springs, which is a great event and is a tribute to all those who are involved in it. It is just a thought but why cannot we have youth games in the regional centres, say Alice Springs, Katherine, Tennant Creek and somewhere in Arnhem Land? Kids from those communities - maybe one of the conditions is that if you go to school you participate in these event - could come in for two or three days and participate. Obviously, leading up to that those kids would have to do training in a whole range of different sports. It is something that is worth looking at.
There are a couple of other recommendations that are worth pursuing on behalf of the committee, being that federal and Northern Territory government services be closely networked to ensure that their respective petrol sniffing programs and services are coordinated. Coordination is very important and it is important that the Commonwealth government provides those dollars.
In conclusion, Madam Speaker, I thank all members of the committee who worked very hard. I thank the chair for her leadership, and minister Scrymgour, who was previous chair of the committee.
I want to say a couple of things about the member for Macdonnell’s comments. He said he was part of developing the CLP policy, and that is good and he deserves credit for it. However, it is about seven years too late. It is something that he, as a member, had ample opportunity to address when he was first elected. He was part of the government, but for reasons unknown to us in the House and to indigenous people, the CLP chose not to act. I get a bit angry and frustrated when people talk for the sake of talking because they believe that they can justify themselves by their lack of action.
I say to the member for Macdonnell: if you suggest that the member for Sanderson had one had tied behind his back, I respectfully suggest that you had two.
In conclusion, Madam Speaker, the member for Katherine made reference that the Minister for Family and Community Services saw fit to go to Alice Springs and announce a $10m program for petrol sniffing. It is an action that should be applauded. It shows commitment not only by the minister but by the Martin Labor government in respect of being serious about addressing this issue. For the member for Katherine to consider it a slap in the face, I say that I would be happy to be slapped in the face by a $10m cheque any time.
Debate adjourned.
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Assembly at its rising adjourn until Tuesday, 30 November 2004, at 10 am or other such other time and/or date as may be set by Madam Speaker pursuant to Sessional Order.
Motion agreed to.
Mr VATSKALIS (Mines and Energy): Madam Speaker, I move that the Assembly do now adjourn.
Madam SPEAKER: Be very quick.
Mr VATSKALIS: I shall be very quick, Madam Speaker. I just want to make a comment about the mango industry in the Territory, a very important industry.
The Northern Territory mango harvest has started, with large volumes anticipated for the next three to four weeks, and volumes expected to sharply increase in late October, with peak volumes in early November and slowing in late November. Although Sunday night’s and yesterday’s storms had some effect on some crops, I do not think there will be any significant effect on the overall harvest.
With a significant increase in the number of young trees flowering intensely this year and, surprisingly, most of them at the same time, we are expecting a significant number of trays from our trees in Darwin and Katherine.
The current small quantities of early fruit are expected to continue for a week or two, with a sharp increase later in this month, which would be expected to place pressure on prices. Crop forecasts show that the bulk of the harvest will start later this month in Darwin and the first two weeks of November in Katherine.
DBIRD, my department, through the Mango Harvest Labour Strategy Group has been assisting the Northern Territory Mango Industry Association facilitate the implementation of strategies to address harvest label issues. In that context, I am aware that one of the strategies that has been examined is to put in place arrangements for guest workers to come in from overseas. Of course, that will require federal government support.
I would like to make several points. First, this is only one of a number of options that the Harvest Labour Strategy Group has considered as a concept. Unfortunately, even if it is okayed, it is not going to be an option for this season and, even if the industry decides that it wants to pursue the option in the longer term to bring guest workers from another country, there are a number of complex administrative and practical difficulties that will need to be addressed.
Let me stress again that this is one of many ideas being tossed around by the Labour Strategy Group. I am also aware that there is an increasing understanding amongst many growers that the best way to attract and retain good pickers is to offer good working conditions and wages.
There are, of course, other challenges that the industry is facing, not only the pickers, but also logistics and transport. Our mango harvest has to compete with the melon harvest in Katherine, which is going to last five months, while our harvesting of mangoes lasts only for a few weeks, and transport companies are not going to abandon the Katherine growers just to serve our mango harvest and mango processing in the Territory.
As part of the preparation for the season, the Northern Territory Mango Industry Association held a meeting in early September, and 50 mango growers, packers and stakeholders discussed issues associated with harvest, labour, transport and price. That is a very good sign that the industry is maturing. People are talking to each other to resolve their issues instead of fighting and bickering.
I wanted to make these comments because a lot of attention has been focussed on guest workers, or East Timorese workers coming to Darwin, and we have to say that it is only one of many ideas examined. There are technical difficulties and, at the end, it is going to be a decision of the federal government about guest workers in Australia.
Mr WOOD (Nelson): Madam Speaker, I was interested in the Minister for Primary Industry and Fisheries talking about the mangoes. I am fairly sure that I have to do the mango tango down Mitchell Street in about two weeks to help to encourage backpackers to become pickers in the mango industry. I hope the minister is there with lots of cold water. It is going to be a hot job dressed in a mango suit.
I would like to raise an issue that I came across recently. I have this statement which I will read out. It says:
That is from the position paper of the Labor Party in 2001. I had to read it carefully so I understood what the government was saying. When I considered what happened earlier this sittings on General Business Day, I had the feeling that this policy did not match what happened on General Business Day. The government has said the arrangement will free the committee to investigate issues of public concern without the approval of the governing majority party.
On 5 October, there were approximately eight requests by the opposition and the Independents, asking that various committees look at different issues that we believe should be investigated. My first notice asked that the environment and sustainable development committee look at cotton and cropping in Australia and the Northern Territory. My second one, which was looking at explanatory memorandum and statements, was, out of all these, referred to the Standing Orders Committee, although I think the Leader of Government Business did have his heart on his sleeve, or tongue in cheek, when he said this is really important stuff and you should be proud of us supporting that. However, it has at least gone to the Standing Orders Committee.
I also asked that the Auditor-General investigate matters about Metis. Admittedly, that matter was referred to by the member for Macdonnell. The Opposition Leader asked for a select committee to look at the effects of poker machines and other related matters. I asked that the Public Accounts Committee look at the Owston Nominees and Warren Anderson issue. The opposition asked that the Northern Territory parks estate be referred to a select committee to investigate certain matters. The member for Macdonnell also asked that the pool fencing scheme be referred to the Public Accounts Committee, and the member for Port Darwin asked that issues regarding the disposal and storage of certain waste products be referred to the Sessional Committee on the Environment and Sustainable Development.
Whilst one of those might have been put aside for the time being and one very small was passed on the day, the rest did not. It seems as though the government’s intentions before they came into parliament - and I am quoting from the position paper - have not come fully into being. I give the government one thing: it has made up a committee of six members. In most cases, three come from the governing party, two from the opposition, and one from the Independents, and that is a good move.
I am not here to be totally negative; the government did introduce the Estimates Committee. The Estimates Committee is an excellent concept. I believe that the other committees should be freer to take on some of these issues that members on this side of parliament raise as matters of concern.
I would just like to say one other small thing. In the NT News on 5 October on the front page, there was ‘The best little country practice’. It was an article by Paul Jackson and I will just quote some of it:
They flew to Melbourne and picked up a trophy and a $5000 cheque from the Royal Australian College of General Practitioners. The picture on the front page shows all the staff. The staff shown are Lionel and Pat Crompton, the owners of the business, with Dr Armando Accantara, Dr Agnes Ocampo, Shirley Doldissen, Helen Christensen, Jo Van Dam, Cheryl Mao and Dr Rene Penaloza.
This is one of the best places, I believe, in the Darwin region. We are lucky in the rural area; we have quite a few doctors. However, this is a great little place - four doctors. It has its own surgery and emergency area. People are welcome up to 10 pm when it closes during the week days. It is open on Sundays from 9 am to 12 noon. One of the special things about, is not only is it very friendly staff, but if there are 20 people waiting at 12 noon, no one is sent home. Doctors will attend everyone until all those patients are looked after. It is a terrific service by a terrific group of people. Pat and Lionel Crompton are just fantastic people - not only just from a medical point of view. They have certainly looked after me. People would know that I had a piece chopped out of my leg which was a skin cancer. The staff there helped bandage that regularly. I had to go every two days or three days.
I should also thank, while I have the opportunity, the nurses at Palmerston Care Centre who have been constantly bandaging and re-bandaging my leg. I thank those people because they are wonderful people. There have been some things said about that care centre and I can tell you now, the staff there are just great. I do not see any bad morale there; I know they are a great bunch of people and they certainly look after you.
Getting back to the Fred’s Pass Medical Centre; it is a great practice. They talk about have 120 patients per day. I do not have any problem believing that because there are always plenty of people there. They are not just there for medical reasons. A year-and-a-half ago, when I was in parliament here, I went to the opening of this practice. It was the day my father died and I was told about his death at the centre. If you wanted a shoulder to cry on, Pat Crompton was the shoulder to cry on. I have a lot of respect for that lady, and Lionel as well. They are more than just doctors. They are part of the community and that is what makes them so special.
I say congratulations, not only on behalf of myself, but all the people in the rural area. I gather many people from Palmerston attend as well because of the hours that it is open, the friendliness, the service, and the quality of the service they provide - it is just a great place. I say good on them, it is well deserved and I hope you are there for many, many years.
Ms MARTIN (Fannie Bay): Thank you, Madam Speaker, and I hope your leg is better, member for Nelson.
Mr Wood: Yes, it is ready for running on Sunday.
Ms MARTIN: All right. What time are you running?
Mr Wood: Three o’clock, six o’clock and the next day shot put at 7.30.
Ms MARTIN: I will be there for the morning. I will miss it. Otherwise, I would have come and watched you.
Mr Wood: Sunday morning.
Ms MARTIN: Sunday morning?
Mr Wood: Yes, I am driving down tomorrow.
Ms MARTIN: Madam Speaker, sorry about that, but I am looking forward to being in Alice Springs on Saturday evening to open the Masters Games. It is a lovely occasion and I love seeing the mix of all those Territorians and interstaters as well, and the age groups. People who you think should be home sitting down reading quietly, are up there doing extreme sports – it is fantastic.
I just want to talk about some Fannie Bay electorate issues and the Arafura Bowls site and its future was announced this week. Lacuna Design was announced as the winning expression of interest to develop the former Arafura Bowls site in Parap. Part of that arrangement was that $250 000 from the sale of the land will go to Bowls NT and I know that is very welcome. The bowls community faced difficult times when one of their facilities closed down, but our assessment was that having three in the Palmerston/Darwin area was more sustainable and more viable and that certainly is the case. So that is $250 000 from the sale of land at Arafura going to support bowls.
I would like to talk about the Lacuna proposal because it had the unanimous support of a qualified panel of industry and government members in the testing of those expressions of interest. The proposal comes within a framework of the Year of the Built Environment. The criteria for what we could do in the Year of the Built Environment with this site was developed in close consultation with local residents. What we did was to say that it is the Year of the Built Environment, we have a site here, let us see what we can get to show sustainable design, environmentally appropriate design - one in tune with climate - and do it in a way that actually recognised where it was - which is on Ross Smith Avenue - and how to link new design in an old suburb with those old houses that people do treasure.
I am pleased that the Parap residents and Parap Ludmilla Planning Forum were heavily involved in this and they are all very enthusiastic about the outcome. It is a medium density tropical design and there are many aspects of it that are innovative. It is a development comprised of 18 two-level, three-bedroom dwellings which are all in nine duplexes. I congratulate Gus Matarazzo and his team, including Troppo Architects, Greg McNamara and Lena Yali, because it certainly is an innovative and tropical design. The dwellings will feature principles of sustainable design and crime prevention through environmental design, and are designed to exclude the need for airconditioning, although airconditioning, of course, as we know, is one of those things we need to have available.
The history of the site, which is associated with aviation, and now as a former bowls club site, will be represented in public art and landscaping. Importantly, one third of the area, which is just over one hectare, is to be retained as public open space and Darwin City Council will look after that. I congratulate the Parap Residents Association, Wendy Macdonald, Christine Brownjohn, Monica van den Nieuwenhof, Ron Weepers, Betty Vogel, Claire George and the Department of Infrastructure, Planning and the Environment for their input into this project, and what is an innovative outcome. We all look forward to the start of the $6m development, which Gus tells me he will start as soon as the Wet is over.
One of the ongoing issues in Parap is traffic in Gregory Street. It has certainly been an issue for some time and I am working with our local aldermen, Rodger Dee, Helen Galton and Heather Sjoburg, and local residents, to address the issues of speeding, which is a constant one for the street and the use of Gregory Street for ‘rat running’, as it is called in technical traffic terms.
One of my constituents, Mark Hoult, who lives on Gregory Street, approached me about this matter and attended a meeting with our aldermen in my electorate office just a few weeks ago, along with other concerned residents including Ron Weepers, Don Hill, Michael and Robyn Henderson, Lila Notley, Shane and Glenda Thornton, Mal Parker, Bernie Davies and Debbie Wynch. Residents discussed the issues of speed and safety and I am looking forward to a follow-up meeting this Saturday with the Darwin City Council’s technical staff to see how we can resolve this matter.
Whilst this is an issue for Darwin City Council, I am very pleased to be able to facilitate the meeting with residents and the aldermen and make sure that we do get a resolution to an issue that we have dealt with a number of years. There have been certain trials of Gregory Street, including closing off one end. That did not work. There have been traffic calming devices put in. They did not work and they were taken out. It has been an experimental area and residents want to try again, so we are, and I thank Darwin City Council for their involvement.
Another Gregory Street issue is the prime piece of land in my electorate on Gregory Street owned by Telstra that has been earmarked for sale. Telstra has been proactive in approaching the local community via the residents group to find out - as they are putting this land, the old OTC site, up for sale - what residents would like to see happen on the site. I certainly thank Danny Honan and Libby Beath for approaching residents before acting on the issue. They simply could have said: ‘We are selling it’, but they have not. They have gone to residents and said: ‘A prime piece of real estate on Gregory Street. What would you like to see happen with it?’
A well attended community meeting endorsed the concept, after some discussion, of an over-55 retirement village, which would be a great development for the area. There are a large number of older people in large homes who do not want to leave the area, but no longer want the hassle of a large house, so this would be a great opportunity for this group of people. It would not be a formal village with a nursing component, but a group of homes that would be for over-55s.
Telstra have also started talking to residents about a mobile phone tower being erected on the site. Residents have expressed opposition to it, and Telstra has agreed to negotiate. I am looking forward to a positive outcome on the issue and will be working with Telstra to ensure that we get all parties to agree on what should happen. I congratulate all those residents involved, in particular Sharon Wilson, Michael and Robyn Henderson, Melita Inglis and Dave Clark, Monica van den Nieuwenhof, Eric and Kerry Braun, Helen Galton, Bobbie Thomson and Jean Vickery.
I am looking forward to seeing things moving ahead on this site that reflect the needs and interests of the community. An example of successful community involvement has been seen with the Arafura development and will certainly look forward to that occurring at OTC as well.
Finally, August this year saw another very successful Seniors Month. Setting aside this time each year ensures that, as a community, we celebrate and reflect on the contribution that older people have made to the Territory and to Australian society. It also serves as a reminder that senior Territorians, like other population groups, have needs that must be considered by government when setting funding and service delivery priorities. My government continues to support activities that promote positive ageing and which give seniors a chance to demonstrate how rich and full life can be in this stage of our lives.
Seniors Month has been celebrated in a modest way for several years, but the injection of funding by my government for the first time in 2003 by way of a small grants program has really put August firmly on the map for seniors.
This year’s grants were allocated to 41 community groups across the Territory, including two grants each to organisations in Nhulunbuy, Katherine and Tennant Creek; one grant each to organisations in Pine Creek and Adelaide River; seven to Alice Springs; and 25 to Darwin, Palmerston and the Darwin Rural area. Not all of the grant recipients were senior groups. The National Trust, Territory Craft, the Ballroom Dancing Association, Friends of Taminmin Library, the Happy Migrant Social Club, Katherine Freemasons, Alice Springs Lions Club, and East Point Aero Modellers Club all received financial support for activities for seniors during August this year. Local governments were also active in promoting Seniors Month, and computer classes at local libraries proved to be particularly popular.
Indigenous organisations were provided with grants to ensure that indigenous seniors in a number of communities were able to participate in activities. In Nhulunbuy, Miwatj Health Aboriginal Corporation received funding to ensure that seniors could participate in the Garma Festival. In Alice Springs, Congress provided activities throughout the month and there was a special celebration at Atitjere (Harts Range).
The frail aged and those living in residential care facilities were also included in the celebrations. In Alice Springs, Old Timers organised a Vintage Olympics, and the Red Cross organised well attended activities throughout the month for their home care clients. In Katherine and Tennant Creek, seniors who live in the residential care facilities joined in a morning tea and lunch organised by the Freemasons in Katherine, and by senior citizens and pensioner associations in Tennant Creek, while harbour cruises in Darwin, organised by COTA, were especially popular.
The program provided something for everyone, and senior Territorians turned up in their hundreds to some of the events. Dancing classes, fitness programs, craft classes, movies, bush poetry, cooking classes for diabetics, morning teas, lunches, barbecues, and the popular dinner dance in Alice Springs, were just some of the activities available for seniors to enjoy.
Seniors Month provides an opportunity for all Territorians to contribute. All activities which make up Seniors Month are only possible as a result of the significant contribution of volunteers and hard-working staff. The involvement, particularly of volunteers, is testimony to the vibrant and caring community we have here in the Territory. Here, seniors are valued for their continuing contribution to making this a great place to live, no matter what age you are.
I also congratulate the press in the Territory for their excellent reporting of Seniors Month. The positive stories and photos which featured in several newspapers do have a big impact on community attitudes and highlight the pride of place of older Territorians in our community.
My government is committed to reversing the trend of long-time Territorians leaving the Territory in retirement. There are benefits to retiring in a community where your roots are, but also where it is easy to make new friends. By supporting community groups through the Seniors Month grants, we hope to encourage seniors to discover a new interest, become involved in a new community group, or continue to keep up a fitness program in good company long after Seniors Month is over.
Madam Speaker, we are all proud that the Territory has a reputation for being a great place to be young, to raise a family, to have an affordable home and a lifestyle in this tropical climate that many Australians can only dream about. During Seniors Month, let us not forget that many of our older Territorians are the people who created the Territory, stamping it with their spirit of independence, fun and a taste for adventure. Others are newly arrived, starting out again and gaining a new lease on life, as they chase the sun or settle here to support children and grandchildren. Seniors Month celebrates those very people who provide the solid base of experience and wisdom that any balanced community needs. I congratulate all those involved in making Seniors Month such a great success.
Ms SCRYMGOUR (Arafura): Madam Speaker, on 11 September 2004, I attended the Mahbilil Festival in Jabiru. This festival, which used to be called the Wind Festival, has been a regular event in Jabiru since 1985. Over the years, it has largely focussed on showcasing local musical talent, as well as bringing in big name bands from outside the region.
This year marked a major turning point in the focus of the festival. It was renamed the Mahbilil Festival using the local Gundjehmi word for ‘afternoon breeze’. The festival, held by the Jabiru lake, featured an all Aboriginal line-up for the first time. There were indigenous cultural activities, and the active involvement of the traditional owners of Jabiru was quite evident. This year, the Mahbilil Festival was testimony to the growing trust in the new and productive relationship between the Mirarr traditional owners of Jabiluka and the mining company, Energy Resources of Australia.
A commitment by ERA not to develop the Jabiluka uranium mine without the consent of the Mirarr people is the foundation of this growing trust. A legal agreement between the Mirarr, ERA and the Northern Land Council, which gives effect to that pledge, is now awaiting the signature of whoever the new federal Minister for Indigenous Affairs is. Quarantining Jabiluka as an issue has enabled the Mirarr and ERA to address other pressing social and environmental issues. This festival was proof that, despite three decades of animosity and argument between miners and traditional owners, despite the testing times of late and the challenges ahead, resolution is achievable with imagination and goodwill.
I would like to make special mention of the Yawkyawk Yawurrinj Kakadu Youth Group which put in a lot of effort to make the festival visually spectacular. Through the guidance of Dwayne Baker, colourful lanterns were created and scattered throughout the park in the images of the local wildlife including the barramundi, jabiru bird and the gecko. A fire display of traditional images was also created by the youth group, and they assisted in the making of some great damper. I welcomed the enthusiasm and participation in the festival by so many young people for the first time in Jabiru.
There was also a presentation of appreciation by me for Yvonne Margarula, the senior traditional owner of the Mirrar people. I expressed to all the visitors and the participants at the festival, that no matter what your thoughts or political persuasions may be, the strong convictions and stance that Yvonne has maintained over the years was to be admired and recognised. On behalf of the Northern Territory government, I applauded the efforts of the Mirrar people and ERA in bringing about this great event.
I also acknowledge the other sponsors of the festival which included Gundjehmi Aboriginal Corporation, Rio Tinto Australia, the Jabiru Sports and Social Club, the Jabiru Town Council, Parks Australia North, Jabiru Area School, the Jabiru Market Stallholders Association, the Jabiluka Association and, of course, the Northern Territory government which also contributed funding to the festival.
Finally, a special thanks to all the volunteers young and old who made the first Mahbilil Festival a great success.
Motion agreed to; the Assembly adjourned.
MESSAGE FROM ADMINISTRATOR
Madam SPEAKER: Honourable members, I have received Message No 26 from His Honour the Administrator, recommending to the Legislative Assembly a bill for an act to provide for the making of superannuation contributions for certain members of the Legislative Assembly elected or re-elected after the commencement of the act, and for other purposes.
PETITION
Section 7.6 of Gunn
Section 7.6 of Gunn
Mr MILLS (Opposition Leader): Madam Speaker, I present a petition from 1101 petitioners, praying that section 7.6 of Gunn be zoned for conservation. The petition bears the Clerk’s certificate that it conforms with the requirements of standing orders. I move that the petition be read.
Motion agreed to; petition read:
To the honourable Speaker and members of the Legislative Assembly of the
Northern Territory
We the undersigned respectfully showeth the proposed development of section 7.6 of Gunn
threatens a fragile and important ecosystem, home to an extremely rare eucalypt and pigmy
goanna. Over the years, it has been a place enjoyed by many residents who walk through the
area. As this proposed development is built up against an escarpment and this gully is an
upper arm of the Mitchell Creek drainage it will be a major problem for future residents.
Your petitioners therefore humbly pray that in the interests of present and future residents,
we call upon the minister to remove the possibility of development by zoning this area for
conservation. We call upon minister Chris Burns to permanently stop the development of
housing in the fragile upper reaches of the Mitchell Creek escarpment by changing the
zoning allocation to create a conservation zone.
And your petitioners, as in duty bound, will ever pray.
MINISTERIAL REPORTS
Return to Home Program
Return to Home Program
Mr AH KIT (Community Development): Madam Speaker, today I provide an update for the House on the Return to Home program through the Community Harmony project. The Community Harmony strategy has two overarching objectives: a significant reduction in the incidence of antisocial behaviour by itinerants in all major Territory centres; and the delivery of infrastructure intervention programs and health services responding to identified needs of itinerants.
The Return to Home program commenced in Darwin in May 2003 and, since its introduction, 1566 people have been assisted to return to their homes – 392 clients returned home between July and September 2004. The Return to Home program was identified as a key initiative of the Community Harmony strategy to provide assistance for people to easily access the opportunity of returning to their home community.
I take this opportunity to dispel the myths about the Return to Home program that the members opposite are keen to propagate. The member for Greatorex was keen to talk down this important and effective service when I presented a ministerial report on the Itinerants Strategy in May 2003, saying there is no clear cut way of ensuring that the cost incurred by an individual flying home will be recovered. He suggested we wait until we present a further report to the House because he was suspicious of the program’s effectiveness.
For benefit of the member for Greatorex, let me point out the statistics of this important program. The Return to Home and accommodation referrals programs using Centrepay agreements is close to full cost recovery. This is a user-pays system which gives people transport options to return home when they become stranded in town. The service is for people who wish to return to their community of origin and are in receipt of Centrelink benefits and are sent to and sign up for a Centrepay agreement to repay their fare home.
In Darwin, the Larrakia Nation pays the fare up-front and depending on the amount, the client enters a Centrepay agreement to repay the fare in two or three pays. Fares are one way, limited to four fares per individual per annum and is only available to Territorians. This service is not available to interstaters to avoid allocating clients with a large debt that becomes unmanageable to repay. Other regional centres have requested the program and options will be developed in consultation with key stakeholders and regional Harmony groups.
Complementary to the Return to Home program is the proof of identification service which has processed over 3000 requests since May 2003. It is apparent that not all of those using this service are itinerant as such. However, it is clear that many who need help to get their identification also require the assistance of the Return to Home program. Without this option, people would remain stranded in Darwin and other centres and would be in danger of becoming itinerant.
We have expanded this initiative to other regional centres as the Community Harmony strategy continues to expand. The program also commenced in Katherine in February this year. Through the Kalano Community Association, 139 people have accessed the Return to Home program in the Katherine region. In Alice Springs, the Return to Country program, run through the Tangentyere Council, has also seen positive results.
Finally, I would like to inform the House on what happens to some of the people who return to home. Twenty-five people returned to Galiwinku in 2003 through this program. Two have passed away from alcohol-related issues, one is working as a plumber, one is working with youth diversionary programs, two are working in home gardening, five are doing landscaping work, and 14 are being counselled by Yalu Women’s Elders Group under the Strong Family program which includes hunting trips, campfire nights and visits to country.
Madam Speaker, this program is an effective, essential service which is helping itinerants to travel home and in many cases, live productive and meaningful lives.
Mr ELFERINK (Macdonnell): Madam Speaker, the statistics that are provided by the minister for police provide quite the reverse on what the minister provides merely in anecdotal evidence. Here are some statistical numbers from the police annual report: when this government came to government, 13 779 people were apprehended for being drunk on the streets of the Northern Territory. The Return to Home program had been operating since shortly after this government came to power and, last year, 19 457 people were apprehended for being drunk on the streets of the Northern Territory. And it is not because they are being returned to home and getting drunk there. If you go through the increases - well, let us take Darwin, for example - when they came to power, 5926 people were being apprehended for being drunk; now 8908 are being apprehended for being drunk.
So, the problem is not being fixed. What is worse is that when I asked last financial year for police to provide figures as to how many people they actually apprehended for offences against the Summary Offences Act - this is urinating in the street, defecating, swearing and fighting offences – sadly, only 700 or so for the whole of the Northern Territory last year, so less than two per day.
This sort of public drunkenness and disorder is largely being ignored by this government. Where do we see it reflected in the crime statistics? We see them in the crime statistics that deal with violent crime, which is on the increase in the Northern Territory - and sexual assault leaps out of the statistical figures as being a crime that is vastly on the increase.
Madam Speaker, this needs to be a ministerial statement because, in ministerial reports, I have two minutes to talk about this. These are the rules set by government. Government does not want to talk about this, which is why they tried to sneak it in now where I only have two minutes to respond.
Mr AH KIT (Community Development): Madam Speaker, I did not expect anything else but knocking from the shadow minister. What was their policy? Let me remind them: monster and stomp on them. That is what you support. What is your policy today? You do not have one.
We have been successful. We will continue to alleviate antisocial behavioural problems. We have put infrastructure in place, we are putting programs together, we are being very positive, and for once, I would like to see the opposition support government in exercises such as this, which are getting good results across the Territory.
The major townships are supportive of it, the agencies are supportive of it, and the opposition would do well to come on board rather than just knock, whinge, whine and carp.
Renal Services - Update
Dr TOYNE (Health): Madam Speaker, today I update the House on developments and achievements in the expansion of renal services across the Northern Territory.
Whilst we continue to work on prevention through our Preventable Chronic Disease Strategy, we have also established a renal clinical reference group made up of a group of dedicated renal specialists. This group has developed a chronic renal insufficiency program as a result of work that they have done on early identification of appropriate treatment interventions.
As part of this program, acute care renal nurses are working closely with district medical officers to educate remote community nurses and Aboriginal health workers on early intervention strategies to delay the onset of chronic renal insufficiency and the need for costly and disruptive dialysis treatment.
Under recent contractual arrangements, we have put new equipment into Darwin, Nguiu, Katherine, Tennant Creek and Alice Springs to provide our hard-working clinicians with improved technology for monitoring patients’ conditions and allow them to be able to provide the best care possible. We have recently established new dialysis services at Galiwinku on Elcho Island and Angurugu and Umbakumba on Groote Eylandt.
In Central Australia, we are supporting the efforts of the Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation in establishing renal services at Kintore. Progress is being made. On 10 September, I attended the opening of the renal training house in Alice Springs, critical in preparing patients to undergo treatment in their own community. I am happy to announce that the first patient returned home to Kintore for dialysis on 28 September.
On 15 September, I opened the new Palmerston Dialysis Unit, which will provide easier access and services for patients for Palmerston and the outer Darwin areas. Undergoing renal dialysis treatment is in itself very disruptive to people’s lifestyles, and the patients to whom I spoke at the official opening of this unit were relieved that they no longer had the added inconvenience of travelling to Royal Darwin Hospital and Nightcliff to access renal treatment.
Construction of the new Tennant Creek Renal Unit commenced on 27 September 2004, with the completion target date of early March 2005. This new facility will be situated in the hospital grounds. It will have the capacity for a total of 32 patients. The 12 patients in the temporary Tennant Creek facility will transfer to the new unit in March while other patients will be transferred on a progressive basis from Alice Springs.
In 2004-05, we will be looking at further expansion of renal services across the Territory, closer to patients’ homes. We have allocated $0.9m for the second stage of developing services in remote areas, and are currently obtaining estimates for dialysis services in Santa Teresa, Maningrida, Goulburn Island and Ramingining.
This government is bringing about a quantum shift in the delivery of renal services across the Northern Territory. We are investing in staff, training, capital and research. We are developing agreements and arrangements with individual patients, families, community councils, traditional owners and health clinics in providing more appropriate services closer to home.
There is a real level of excitement and enthusiasm amongst the staff members within the Department of Health and Community Services who are reshaping the way that renal and other services are delivered. I would like to pay tribute to their efforts and put on record my thanks for their achievements to date.
I would also like to take this opportunity to announce the appointment of the new Northern Territory Director of Renal Services, Dr Matthew Jose, who will be commencing in late October 2004. Dr Jose is replacing Dr Paul Snelling who relocated to Sydney earlier this year after seven years as the nephrologist for the Top End, and the first chair of the NT-wide Renal Clinical Reference Group, which commenced in July 2003.
Dr Jose is a highly-credentialed nephrologist from Melbourne, who holds a Doctorate in Medicine. Most recently, he has been the Director of Transplantation, Victoria Kidney and Pancreas Transplantation Unit, was full-time nephrologist at Monash Medical Centre, and Clinical Senior Lecturer at Monash University. He will be granted academic status with the NT Clinical School. His extensive and impressive curriculum vitae will enhance the future directions of renal services in the Northern Territory.
Ms CARNEY (Araluen): Madam Speaker, I join with the minister in welcoming Dr Matthew Jose. I wish him well on behalf of all members of the opposition. It is a difficult job and, obviously, he is eminently qualified to take it on.
I also take this opportunity of warmly congratulating all of the staff in the Health department who have worked so hard in relation to renal services. We are starting to see some positive results, and that is due to the commitment, knowledge and hard work by those people involved. We all know the dreadful nature of renal disease, and anything that any of us can do to improve matters is, of course, to be most welcomed. I say again to all of the staff involved, congratulations, and on behalf of the people of the Northern Territory, thank you for your efforts so far. We are sure that your efforts will continue over the coming weeks, months and years, and we wish you well. All of us are aware of the terrible nature of this disease and we want some good results.
The minister appears to be committed to this area. I can only say that I wish he was as interested in other areas, such as the Palmerston Health Clinic, the ICU in Alice Springs, the shortage of beds, the Oncology Unit - which was an election promise, the fact that we still do not have a hospice is, of course, of great concern. There are bed shortages in Alice Springs and Darwin. I know that the staff on the ground at those places are working as hard as those in the area of renal disease. I do wish, however, that the minister would demonstrate the same commitment in those areas as he appears to have demonstrated in the area of renal disease.
Dr TOYNE (Health): Madam Speaker, I was about to jump to my feet to acknowledge the first positive statement that the member has made in these entire sittings, but I will not now.
Down Syndrome Awareness Week
Ms SCRYMGOUR (Family and Community Services): Madam Speaker, this week is National Down Syndrome Awareness Week. I welcome to the gallery today members of the Down Syndrome Association of the Northern Territory. The week of celebrations in the Northern Territory was launched on Saturday, 9 October, at the Leanyer Recreation Reserve. Approximately 20 people attended this barbecue lunch.
The Territory’s Down Syndrome Awareness Week activities will culminate in a dinner auction on Saturday, 16 October. This night promises to be a great night out. To ensure its success, more tickets must be sold, so I encourage all members to try to attend and to spread the word. I know there are already members in the House who have already contributed and supported it, and that is fantastic.
The Down Syndrome Association of the Northern Territory started as a parents support group in 1976, with the main aim of helping people with Down Syndrome to reach their full potential. The association continues to offer support for people with Down Syndrome and their families, through hospital and home visits, and support at school and social events. The current membership of the Down Syndrome Association of the Northern Territory is 29 families and 12 schools. I encourage any families who are affected with Down Syndrome to make contact with the association to find out what support might be available.
Down Syndrome is a congenital conditions affecting both physical and intellectual development. Down Syndrome occurs in approximately one in 700 births, and is caused by the presence of an extra chromosome. It is a lifelong condition which affects each person differently.
The association has a computer-aided learning program offered in both schools and at home, whereby children with Down Syndrome are offered a one-to-one lesson to enhance learning opportunities through the use of computer technology. Where possible, this service is extended to other children with identified learning disabilities. These lesson plans are supported through an impressive range of software programs aimed at developing literacy, numeracy, and other key learning areas. The longer-term benefit of gaining computer skills will also enhance employment opportunities and independent living. Those with Down Syndrome and their carers make a significant contribution to our community.
Two delegates of the Territory’s Down Syndrome Association attended the world Down Syndrome Congress which was held in Singapore in April 2004.
I commend the tireless effort of community groups and their support of those in our community who need a little extra. Our community is rich in diversity and I applaud the commitment by the Down Syndrome Association to organise this fundraiser. Such an event is a practical and fun way in which our community can show its support for those with Down Syndrome and their carers. I know that Territorians are generous in their support of many groups and issues in their community.
I believe that there is a celebrity auction, with items being donated from many here in this House. I am told there may be some interesting drawings which result from the evening, through donations by Wicking of his time and talents. Several members of this House have made some great donations for the celebrity auction. There are dinners, tours, fishing trips and sporting items; so I thank them. The organisation has run television advertisements for the night, and some of the stars of that advertisement are in the gallery today. Some of them are not able to attend the event on Saturday night, but we will buy the tickets for them so that they can attend.
The government provides ongoing assistance to the association with funding to provide information assistance to clients who access their programs, and assistance with accommodation. As minister for Family and Community Services, I have responsibility for the areas of aged and disabilities. There are many disabilities represented across our population, with Down Syndrome being one of them. They could all use more money, and we are trying to help. This government has increased funding to the aged and disability program by 74%. This results in $20m being spent in the area annually. It is not going to solve every shortfall, but it demonstrates our commitment.
In addition to its core responsibility for funding the disability program, this government is aware that disability is a shared responsibility across government, non-government, and private sectors. People with disabilities interact with the community at all levels. I urge the community to accept the challenge and consider ways they can enhance the lives of Territorians with a disability.
I thank the representatives from the Down Syndrome Association for joining us today. I commend the work they are doing and wish them well for the fundraiser on Saturday night.
Members: Hear, hear!
Ms CARTER (Port Darwin): Madam Speaker, I also welcome members from the Down Syndrome Association here today. I also welcome the minister’s report. This is an important week with regards to the Down Syndrome Awareness Week and mental health as well - two key issues here in the Northern Territory. On behalf of the opposition, I offer the support that we have to the parents and friends of people with Down Syndrome in the Northern Territory. It is a significant responsibility that they have, and the care they give their loved ones is unsurpassed.
One of the issues facing people with Down Syndrome is the need for several things. One of them is the provision of meaningful work. It is great to see the efforts of organisations such as the Handicapped Persons Association here in Darwin, and the work they do to provide meaningful occupation for people with Down Syndrome. It is often an issue for carers and families, and for people with Down Syndrome, to actually be able to find meaningful work as they go through life.
The other thing that they need, of course, is accommodation and support. One of the concerns many parents have as they get older is: where will their loved child go once they have died. I know that wonderful organisations like Somerville in the Northern Territory provide supported accommodation for people with Down Syndrome. These are the sort of things that governments and the community as a whole have to work tirelessly to provide.
With regard to the weekend’s activities, I will be delighted to attend the dinner on Saturday night. I had to rack my brains to think of an appropriate auction item that I hope people will bid on. I am going to be providing a sunset tour of my beautiful electorate of Port Darwin. I promise I will not drink any of the champagne, but I certainly hope that the people who bid successfully on that item will because we need to raise as much money as possible to support the association for the great work they do in our community.
Members: Hear, hear!
Ms SCRYMGOUR (Family and Community Services): Madam Speaker, I thank the member for her support. I believe that all of us in this House need to recognise the work, and the contribution that non-government organisations such as the Down Syndrome Association, play in supporting the work of government, and the role that they play in the provision of vital community services. In regard to what the member is putting up for auction, I am going to go one better. A beautiful tour of the Tiwi Islands, or places in my electorate, is something that is going to be put up on offer.
Myilly Point Precinct
Dr BURNS (Lands and Planning): Madam Speaker, last week I informed the Assembly of the Martin government’s initiative regarding planning for the Myilly Point precinct. Government is seeking input from the community as to how they want that precinct to look in the future. We are talking about the old hospital site, Myilly Peninsula itself, and the Little Mindil area between the Darwin casino and Myilly Point.
Lack of coordinated planning over the years has created something of a dilemma. These prominent and important sites are zoned for tourist commercial development, but nothing has happened on them and they give the appearance of being derelict and public open space.
The previous government procrastinated on development plans for the old hospital site and Myilly Point Peninsula with a number of proposals being considered, and preferred developers selected. However, nothing ever happened. These sites have been effectively in un-planned limbo. We have decided to so something about this. Last week, I launched a public consultation campaign asking Territorians for their opinions about what should happen to these 15 hectares of government Crown land.
I want to update members as to how this campaign is progressing and the type of responses we are getting so far. Most members would be aware of the advertisement that was in last week’s Sunday Territorian and they may have heard the radio advertisements. Judging by the amount of interest shown in this campaign, these sites are very dear to the hearts of Darwin people. Several radio programs have devoted segments to talkback on the future of the precinct, and 30 formal responses have been received so far. Next week, about 40 000 brochures will be delivered to Top End households, and there will be displays in major shopping centres. It is interesting that one of the first proposals we have received, and a number of other people have also suggested in terms of these sites, is that there be a replica of the Darwin Hotel built there. Obviously, there are many Territorians and Darwin people who still remember the travesty of how that building was wrecked and gone forever.
Other suggestions have included a saltwater swimming complex, a tropical park, a boating tavern on the headland, a coastal resort, a water park or other theme park, a cultural centre, a skate park, and a heritage centre. There appears at this early stage to be more support for the development of the old hospital site than for the other two sites, although it is very early days. A number of submissions have said they want all three sites to be retained as public open space, or developed as a park, and many of the submissions are adamant about the retention of public access to the coastal areas in any development.
There are many ways in which people can make their views known. There is a web site: www.ipe.nt.gov.au/Myilly. They can e-mail to myillypoint@nt.gov.au and they can write to Myilly Point Submission, PO Box 1680, Darwin. I am also hoping that many people will respond through the reply paid envelope following the letterbox drop of the pamphlet. I am proud to say that, as always, I am at Rapid Creek Markets this Sunday and will have a display there. The member for Millner and I will be very happy to discuss people’s ideas and take submissions.
Madam Speaker, it is obvious that people care about these sites. They are very important. This government is a consultative government that is going to the public. We want to hear the public’s ideas. Some of them will be very interesting. I hope that members also take the time to respond to tell us their ideas.
Mr DUNHAM (Drysdale): Madam Speaker, I am glad the minister is part of a consultative government when he decides to do what should be done with some hectares of waterfront land. We were hoping to do something similar with this land, the 27 hectares in front of Parliament House, which is due for development. We would have thought that some devices to consult with the people would have been important in that site as well. We were very disappointed that the rhetoric that is flowing now was not employed for that site.
Yes, I did see the minister launch this. He was standing in front of a banner answering questions about why he was trying to pinch Col Cordingly’s land. He seemed to lose the message there somewhere because the media was very interested in that at that time.
I hope that the device he uses of consultation, including letterbox drops, his sign in front of the office and all that sort of stuff, is accurate because so far, some of this information has been inaccurate. It is all very well talking about open space and how this land has been sitting fallow, but there are formal documents and town plans that describe that land already. Some of the land described as up for development has previously been described as open space. I hope that he does not go back to 1990 documents and goes to documents that are a little bit more contemporaneous, which adequately describe in a variety of ways possible uses for this land.
He seeks to criticise the previous government for not rushing into developing this land. As a member of Cabinet at that time, I can tell him why we did not: it is very precious land that should be developed appropriately. It is land for which there are numerous potential uses. Unlike what is happening down at the Darwin waterfront, we would have thought progressing slowly and making sure it was done properly would be a far better option than rushing into something and giving over significant lumps of the people’s land on the basis that they knew nothing about its potential development.
Dr BURNS (Lands and Planning): Madam Speaker, the member for Drysdale is quite negative about the waterfront development. It is a fantastic development. All issues relating to probity have been followed and there is a lot of excitement amongst the public and the construction industry because Territory companies are integrally involved in the consortium that won the development.
I will pick up on what the member opposite said about the land at Myilly Point. My advice from the department is that it is and it has been zoned as B5. It is unique for a government to go to the people and say: ‘We are willing to rezone this land as park land’. We are open to suggestions. We are a government that listens.
The member also has not noticed the letters of support, and the personal support, that has come to me about establishing the Rapid Creek corridor - finally, at last! - after all the inaction and hype and twisted rhetoric of the previous government and previous minister.
Mr Stirling: Timmy.
Mr DUNHAM: A point of order, Madam Speaker! To call ‘Timmy’ across the Chamber is offensive, and given that there is a lot of this going on, I suggest we desist right from the outset.
Madam SPEAKER: Yes, withdraw it.
Mr STIRLING: Madam Speaker, I withdraw. There was certainly no offence meant, Madam Speaker.
Reports noted pursuant to Sessional Order.
SUSPENSION OF STANDING ORDERS
Take Two Bills Together
Take Two Bills Together
Ms MARTIN (Chief Minister): Madam Speaker, I move that so much of standing orders be suspended as would prevent bills entitled Legislative Assembly Members’ Superannuation Contributions Bill 2004 (Serial 256) and Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill 2004 (Serial 257):
- (a) being presented and read a first time together and one motion being put in regard to, respectively,
the second readings; the committee’s report stage; and the third readings of the bills together; and
- (b) the consideration of the bills separately in the Committee of the Whole
Motion agreed to.
LEGISLATIVE ASSEMBLY MEMBERS’ SUPERANNUATION CONTRIBUTIONS BILL
(Serial 256)
LEGISLATIVE ASSEMBLY MEMBERS’ SUPERANNUATION AMENDMENT
(SCHEME CLOSURE) BILL
(Serial 257)
(Serial 256)
LEGISLATIVE ASSEMBLY MEMBERS’ SUPERANNUATION AMENDMENT
(SCHEME CLOSURE) BILL
(Serial 257)
Bills presented and read a first time.
Ms MARTIN (Chief Minister): Madam Speaker, I move that the bills be now read a second time.
The Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill and the Legislative Assembly Members’ Superannuation Contributions Bill are a package of legislation to put in place superannuation arrangements for new members of the Legislative Assembly who are elected at or after the next general Territory election. This legislation is the culmination of my commitment at the last election that the superannuation arrangements for parliamentarians should not be out of line with arrangements generally available to the community.
By way of background to these bills, the current parliamentary scheme, the Legislative Assembly Members’ Superannuation Scheme or, as we know it generally, LAMSS, is a defined benefits scheme. This means that benefits for members are fixed and related to salary and length of membership, and unrelated to earnings on any funds set aside to meet benefits. While defined benefits schemes used to be relatively common, with the advent of universal superannuation and the Commonwealth Superannuation Guarantee, most defined benefits schemes have now been closed.
The most common type of superannuation scheme now, and that which is generally available to the Territory work force, is a defined contribution or accumulation scheme. This means the amount set aside each year is fixed, and the final benefit depends on the amount set aside and the investment’s earnings on those amounts.
Honourable members will recall that I announced a review of the LAMSS early in 2002, following which the terms of reference were tabled in this House. The review was the result of my government’s concern about the high cost of LAMSS to the Territory, and in regard to the considerable differences between LAMSS and other superannuation arrangements commonly available to the wider community. The time frame for the review was deliberately structured to allow a full and thorough analysis of the issues, in particular, so that honourable members of this House and the general public could have an opportunity to provide input into the consideration and development of new arrangements. Ken Clarke, the former Under Treasurer, undertook the review, which was presented to my government in November 2002.
In line with its objectives, the review by Mr Clarke canvassed a number of options for revised parliamentary superannuation arrangements which would reduce the cost to Territory taxpayers and which would be comparable with arrangements in other jurisdictions, as well as having regard to community expectations. In February, I tabled the review in this House and invited comments from members on future arrangements for both current and new members. Following this, the Under Treasurer and the Commissioner of Superannuation briefed both sides of the House and the Independent members.
I turn now to the first of the two bills - the Legislative Assembly Members’ Superannuation Amendment (Scheme Closure) Bill. This bill will close the Legislative Assembly Members’ Superannuation Scheme to new members who are elected at or after the next general election for the Territory. There will be no impact on the existing superannuation arrangements for sitting members, who will continue to be covered by the LAMSS. Sitting members will not have an option to transfer to the new arrangements.
The new superannuation arrangements will also apply to all former members of the Legislative Assembly who have left the Assembly but who are re-elected at or after the next general Territory election. This means that former members will not be able to rejoin the LAMSS scheme. Where a former member is receiving a pension from LAMSS, the bill will provide for the suspension of that pension until they next leave the Assembly.
The second bill in this package is the Legislative Assembly Members’ Superannuation Contributions Bill. New members who are elected at or after the next general Territory election will receive employer superannuation contributions at a rate of 9%, as required by the Commonwealth Superannuation Guarantee. This rate is consistent with that received by the majority of Territory workers. The bill provides that 9% will be paid into a complying superannuation fund or retirement savings account nominated by the member. Where a member does not nominate a fund, the 9% will be paid into a default fund.
As the new arrangements are less generous than the current LAMSS scheme, the bill provides for new members to be able to salary sacrifice additional contributions up to 50% of their basic and additional salary to their chosen superannuation fund. Salary sacrifice is widely available to the general community and will not entail any additional cost to the Territory. These changes are consistent with changes that were recently made to the Commonwealth parliamentary scheme and to some state parliamentary schemes.
Madam Speaker I commend both bills to the House.
Debate adjourned.
SUPERANNUATION AMENDMENT BILL
(Serial 255)
(Serial 255)
Bill presented and read a first time.
Mr STIRLING (Treasurer): Madam Speaker, I move that the bill now be read a second time.
The purpose of this bill is to remove any doubt about the implementation of a decision made by the previous government to close the Northern Territory Government Public Authority Superannuation Scheme, known as NTGPASS, to employees who commenced their employment in the Northern Territory public sector on of after 10 August 1999. As honourable members will recall, NTGPASS is the scheme for the provision of superannuation benefits to employees in the Northern Territory public sector. It was established in October 1986 under the Superannuation Act after the closure of the Commonwealth Superannuation Scheme to new Northern Territory government employees.
NTGPASS is a defined benefit scheme. This means that the government’s contribution to the benefit paid to employees upon retirement is determined at that time using a formula based on the length of their employment and final average salary. However, not only is NTGPASS complex and costly to administer but, because it defers payments of the government’s superannuation contribution until retirement, it was giving rise to an increasing unfunded liability, the burden of which would fall upon future generations for Territorians.
Accordingly, in this Assembly on 14 October 1998, the then Treasurer announced that NTGPASS would be closed to new entrants from 30 June 1999, but that the rights and entitlements of existing contributors would fully protected. A new accumulation superannuation scheme would be established for employees commencing from 1 July 1999. The new scheme would be fully-funded and would meet Commonwealth superannuation guarantee requirements.
Closure of NTGPASS to new employees was delayed until 10 August 1999 due to consultations between the government and the Trades and Labour Council. However, from that day onwards, new employees have been required to nominate an alternative superannuation fund to which the government’s employer contributions are made. Where employees do not nominate another fund, their employer contributions are made to a default fund which is, at present, the Australian Government Employees Superannuation Trust, known as AGEST. Employees since 10 August 1999 are, therefore, provided with alternative superannuation arrangements which meet the Territory’s obligations as employer and still give employees the opportunity to make their own contributions and to elect from a variety of investment options and life and income protection insurance packages.
Because employees commencing since 10 August 1999 have been required to join another fund, they are not eligible for membership of NTGPASS. A condition of eligibility under the Superannuation Act is that an employee cannot be a member of a superannuation scheme other than NTGPASS. However, the act itself was not amended to formally close this scheme to new entrants.
On 9 December 2003, the Commissioner of Superannuation sought to formalise closure of NTGPASS from 10 August 1999 by using her powers under the Superannuation Act to declare employees commencing on or after that date to be a prescribed class of employees excluded from eligibility for membership of the scheme. Such powers authorise retrospective declarations. The commissioner’s declaration was published in the Gazette on 17 December 2003.
Recently, Northern Territory public sector unions have voiced concern that NTGPASS has not been validly closed to new employees, and suggested that employees commencing since 10 August 1999, may be entitled to membership of the scheme. The government has sought expert legal advice in response to these concerns, which confirms the validity of the commissioner’s declaration and the closure of the scheme from 10 August 1999.
However, to put the issue beyond any doubt, and to avoid any future uncertainty as to the status of public sector employees under the Superannuation Act, the government has decided that it is best to amend the act as is provided for in this bill. Clause 2 removes future permanent employees, as defined in the act, from the definition of ‘eligible employee’ under section 3 of the act. Only an eligible employee is entitled to membership of NTGPASS under section 26. The commissioner’s declaration of 9 December 2003 had the same effect on employees who commenced on or after 10 August 1999. That is, the declaration removed them from the definition of ‘eligible employee’ under the Superannuation Act.
As already mentioned, the government’s legal advice is that the commissioner’s declaration was a valid exercise of her powers under the act. However, because of a decision of the New South Wales Court of Appeal some years ago relating to government employee superannuation legislation in that state, some doubt may exist as to the validity of the declaration. For the avoidance of any doubt, clause 3 of the bill declares the commissioner’s declaration to have been validly made. That means that the bill confirms closure of NTGPASS to new employees from 10 August 1999, without affecting the entitlements of existing members prior to that date.
The bill also contains a ‘just terms’ clause commonly found in legislation of this kind to protect against constitutional invalidity. Honourable members will recall such clauses appearing in a wide variety of legislation passed by this House. Clause 4 provides for the determination of compensation payable to any employee from whom the commissioner’s declaration, or the bill itself upon enactment, is found to have resulted in an acquisition of property. The purpose of the clause is to avoid the consequence of the bill, or the commissioner’s declaration, being held invalid if either is found to have resulted in the acquisition of property, otherwise than on just terms, contrary to section 50 of the Northern Territory (Self-Government) Act.
Again, the government’s legal advice is that neither the commissioner’s declaration, nor the bill when enacted, is likely to have resulted in any acquisition of property. However, in the remote event of this having occurred, the just terms clause is included to save the legislation, and ensure that NTGPASS remains closed to new members from 10 August 1999.
As I mentioned earlier, the introduction of this legislation was prompted by recent concerns raised by public sector unions that NTGPASS had not been validly closed. The government’s legal advice confirming the validity of the closure was sought in response to these concerns. However, as has been separately announced, after careful consideration of all of the circumstances surrounding the closure of NTGPASS in August 1999, the government has agreed to a proposal by the unions for a limited test case in the Supreme Court. The purpose of the case is to establish whether the closure of NTGPASS from 10 August 1999 resulted in an acquisition of property, such as to entitle employees to just terms compensation, as provided in the bill.
It is important to note that if, contrary to our advice, the case is decided in the unions’ favour, because of this legislation employees may be entitled to compensation but will not become eligible to join NTGPASS. This test case should fully resolve the unions’ concerns about the closure of NTGPASS and the precedent should alleviate the possibility of closure of the scheme being challenged again in the future.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
WORK HEALTH AMENDMENT BILL
(Serial 248)
(Serial 248)
Bill presented and read a first time.
Mr STIRLING (Employment, Education and Training): Madam Speaker, I move that the bill now be read a second time.
The bill incorporates provisions from three distinct reviews. One concerns matters outstanding from the Review of the Working Group into the Operation of the Northern Territory’s Workers’ Compensation Scheme, referred to as the Stage 1 Review. The majority of the Stage 1 provisions were enacted in the Legislative Assembly in August 2002 and commenced on 1 November 2002.
The second is to give effect to a number of recommendations of the Lord Report. The Lord Report documents a review into medical and associated intervention in the Northern Territory’s Workers’ Compensation Scheme.
The third is to amend the definition of ‘normal weekly earnings’ under the Work Health Act in order to protect the financial viability of the Northern Territory’s Workers’ Compensation Scheme.
With regard to the first matter, the Stage 1 Review, there were three provisions that were not proceeded with in August 2002. During my second reading speech at that time, I stated that some recommendations had not been proceeded with as they required further investigation and consideration. This bill now addresses two of those three outstanding matters.
The bill introduces the concept of ownership and responsibility by the injured worker in relation to employment and return to work. The legislation as it currently stands places many obligations on the employer to return the injured worker to the work force; yet it does no more than to require the injured worker to cooperate with the efforts of the employer. This provision will place a greater obligation on workers’ compensation claimants by requiring that they take reasonable steps to obtain suitable employment for themselves. The provision will not in any way replace the employer’s obligations, but rather is designed to complement the process by ensuring that both the employer and worker have ownership and responsibility for return to work, and therefore mitigation of loss.
The bill also addresses the lack of a time frame for a workers’ compensation claimant to apply for mediation following receipt of a formal notice of rejection of liability, or reduction, or cancellation of benefits. Currently, no time limit applies, so in theory a claimant could seek mediation many years after receiving such notification. This could unfairly prejudice the employer and this provision will remedy the situation by introducing a 90-day time limit for a claimant to apply for mediation following receipt of the formal decision on their claim. The 90-day period was chosen because experience shows that the vast majority of applications are made within this time frame and it will, therefore, minimise the need for litigation in respect of time extensions. There is provision for a claimant to make application to the Work Health Court to extend the time for application should the claimant be able to demonstrate reasonable grounds.
There is one outstanding matter from the Stage 1 Review that is not included in the bill. This matter relates to negotiated settlements. Provision for negotiated settlements has previously received considerable criticism from the Department of Justice as well as the Chief Magistrate. This has mainly been on the basis that it may well compromise the pension-based nature of the scheme and therefore the rehabilitation incentives that a pension-based scheme provides for both employers and injured workers.
Further and more recently, a major review into South Australia’s workers’ compensation scheme recommends abolishing lump sum redemptions. In this regard, the South Australian Review Report says that while redemptions have some appeal in terms of their ability to settle long-term claims at less than their lifetime expected value, redemptions clearly contribute to the risk that some injured workers may continue on the scheme longer than is required in pursuit of a redemption payout. The South Australian report attributes its poor workers’ compensation performance in no small part to the sustained use of redemptions to terminate claims.
The Northern Territory Workers’ Compensation Scheme benefit structure is very similar to that of South Australia. Given this, the South Australian experience is a strong indication that it may be inappropriate to expand the ability in our scheme to finalise claims in the form of lump sum redemptions. Such redemptions are, in effect, the outcome of negotiated settlements. Therefore, it is proposed that there be further evaluation of the South Australian experience, and an evaluation of lump sum redemptions that already exist under the Northern Territory Workers’ Compensation Scheme before further consideration of the implementation of provision for negotiated settlements.
I now address the provisions in the bill that will give effect to a number of recommendations of the Lord Report. The bill will ensure early medical review of claims by limiting the currency of the initial medical certificate to 14 days. It will ensure that the treating medical practitioner will be consulted where medical information is required early in the claims management process. It will ensure notification will be given to the treating medical practitioner of proposals for independent specialist review, and it will ensure that independent medical specialist reports obtained in the claims management process are provided to the treating medical practitioner. These amendments will improve the effectiveness and efficiency of medical intervention in the Workers’ Compensation Scheme, particularly in regard to the claims management process.
There are a number of other recommendations of the Lord Report that are not included in this bill as they do not require legislative amendment but can be implemented administratively.
The final, but far from least, matter that this bill will give effect to, concerns the definition of ‘normal weekly earnings’ under the Work Health Act. Normal weekly earnings, as defined under the act, provide the basis for the calculation of an injured worker’s entitlement to weekly incapacity benefits. Workers’ compensation benefits represent a balance between what is fair for the injured worker and what is affordable to the community. It follows that benefit structures under statutory workers’ compensation schemes are not intended to provide full indemnity for an injured worker’s financial loss but, rather, are intended to meet what is considered by the community to be fair but affordable compensation.
Recent court decisions threaten the balance of the Northern Territory’s Workers’ Compensation Scheme and consequently its financial viability. In this regard, the courts have interpreted the definition of ‘normal weekly earnings’ under the Work Health Act to include employer-funded superannuation contributions made on behalf of workers, and the value to the worker of free board and lodgings and any other non-cash remuneration that could be seen as a benefit to the worker. It is, therefore, now open to interpretation that employer-funded allowances such as annual leave loading, air fares and private use of motor vehicles could also be included in normal weekly earnings. While the court decisions can be seen to have a positive effect for injured workers, because benefits payable will, in many cases, more closely match a worker’s total remuneration, they will have an adverse effect on the costs of the Workers’ Compensation Scheme.
In this regard, if the definition of ‘normal weekly earnings’ under the Work Health Act as determined by the court is not addressed, then superannuation alone would increase future private sector scheme costs by around 4% per annum. In percentage terms, the government sector costs are likely to be higher at around 7% per annum because superannuation contributions made by government are generally higher than in the private sector. Actual costs will be considerably higher when taking into account other employer-funded remuneration, such as rental assistance, electricity subsidies, vehicles, leave loading, air fares, etcetera.
Further, these court decisions are retrospective in their effect, and benefits owing for past periods for superannuation alone are conservatively estimated at $15m for the private sector and $8m for the government sector. These will be unfunded liabilities. These figures do not take into account interest on late payments that, if claimed, could apply to payments owing for up to 17 years. Once again, non-cash benefits are very difficult to estimate, but would add considerably to the retrospective unfunded liability.
These costs would also affect the HIH liability, both past and present. In this regard, the past liability for superannuation alone would be around $2.2m, which does not include interest that may be claimed. Future liability for superannuation would see costs increased by at least 4% per annum, which would conservatively add another $1m to the outstanding liability. Once again, it should be noted that these figures do not include the costs for non-cash remuneration.
In addition to increased costs for benefit payments, there would be increased administrative costs involved in calculating benefits. This is due to difficulty in assessing the value of non-cash remuneration and superannuation contributions. This would be particularly so for part-time or light duty employment, and could lead to greatly increased disputation over the calculation of an injured worker’s normal weekly earnings. There is also likely to be an increase in litigation as applicants test the boundaries of what constitutes the non-cash component of normal weekly earnings. Failure to address this issue will jeopardise the financial viability of the Northern Territory Workers’ Compensation Scheme and, as consequence, force a substantial increase in employer’s workers’ compensation premiums at a time when Territory business can do without increased financial pressures.
The remedy lies in legislative amendment with retrospective effect from the commencement of the Work Health Act in 1987. In this regard, the bill provides that the definition of ‘normal weekly earnings’ under the Work Health Act does not include employer-funded superannuation contributions and non-cash forms of remuneration. This provision will restore the status quo by confirming what was considered to be the intention of the workers’ compensation legislation prior to the recent court decisions. It is not proposed that this retrospective amendment should apply to payments that may have been made before the commencement of the amendment; that is, the retrospective amendment will not enable recovery by the employer of superannuation or non-cash benefit that may have already been paid as part of the worker’s incapacity benefit. Further, the retrospective amendment will not affect compensation payable by order of the court made prior to commencement of the amendment.
The Northern Territory Workers’ Compensation Scheme provides one of the more generous benefit structures when compared with other Australian workers’ compensation jurisdictions. This is particularly so in respective of the weekly incapacity benefits. No other Australian jurisdiction provides for the inclusion of the employer-funded superannuation contributions as part of incapacity benefits, and only South Australia includes some form of non-cash benefit, and only then in limited circumstances.
This bill is further testament to this government’s ongoing resolve to ensure that the Territory Workers’ Compensation Scheme is equitable, efficient and viable.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
CONSTRUCTION CONTRACTS (SECURITY OF PAYMENTS) BILL
(Serial 259)
(Serial 259)
Bill presented and read a first time.
Dr TOYNE (Justice and Attorney-General): Mr Deputy Speaker, I move that the bill be now read a second time.
The bill is part of a package of reforms that this government is making to the building industry. A discussion paper was published in August 2002 which drew on recommendations for reform made by the Western Australian Task Force report on security of payments for the Western Australian building and construction industry. Copies of the discussion paper were also sent to professional bodies, individuals, and companies who have participated in the government’s examination of the construction and procurement issues. Submissions were received from several bodies and, subsequently, a construction industry reference group was established to consider contractors’ payments issues, together with a number of other issues of concern to the construction industry.
That reference group is comprised of representatives from the Territory Construction Association; Construction Accreditation Limited; the Construction, Forestry, Mining and Energy Union; builders; the Australian Institute of Building Surveyors; the Housing Industry Association; and the Civil Contractors Association. Additionally, it is supported by government officers from the Office of Commissioner for Public Employment; the Department of Justice; the Department of Infrastructure, Planning and Environment; the Department of Employment, Education and Training; the Department of Business, Industry and Resource Development; and a member of the Building Practitioners Board and Building Appeals Board.
The bill is modelled on Western Australia’s Construction Contracts Act 2004. The differences between the Northern Territory bill and the Western Australian legislation reflect different administrative arrangements in place in the Territory, and address the issues raised by the construction industry representatives over the past few months, and in the submission made by the Law Society Northern Territory and others in response to the 2002 discussion paper.
The result is the repeal of the Workmen’s Liens Act, a South Australian act which dates back to 1893, and its replacement by this legislation, which will promote good payment practices in the building and construction industry. It does this by prohibiting payment provisions in contracts that slow, or halt, the movement of funds through the contracting chain. It will also help speed up the movement of funds by providing a rapid and cost-effective adjudication process for payment disputes.
The building and construction industry is vital to the Territory’s economy. The failure to pay at any stage in the contracting chain can have disastrous effects for those further down the chain awaiting payment. Until now, their only recourse was to register a lien against the title to land upon which the construction works were carried out, or to which materials were supplied in respect of those works, and then to litigate. The time limits and technical requirements of the Workmen’s Liens Act often meant that contractors lost their right to have a lien registered against the title. It also meant that titles would be encumbered by liens when disputes proceeded slowly through the courts. Sometimes the owner of the land would only be a spectator in a dispute between a contractor and a subcontractor. Whilst the registration of the lien may have given some security for payment, it did little to speed up the payment process.
The bill, subject to exceptions contained in the bill, applies to all contracts for construction work and related services. It also covers contracts for the provision of related professional services, and for the supply of goods and materials, and plant and equipment to construction sites. The bill does not cover drilling work carried out for the purpose of discovering or extracting oil or natural gas, or mineral bearing substances. It also does not cover the construction of shafts, pits, or quarries for the purpose of discovering or extracting minerals. However, it does cover other construction work which may be carried out in conjunction with mining activities. In this regard, the Northern Territory’s approach differs from that taken in Western Australia. If need be, regulations can be used to clarify or alter the scope of the bill should any uncertainty arise during the course of its operation, or should it be decided in the future to extend or reduce the scope of its operation.
The legislation supports privity of contract between the parties. A party commissioning construction work must pay for the work. The obligation to pay cannot be made contingent upon the party with that obligation being paid first under some separate contract. The legislation prohibits ‘pay if paid’ or ‘pay when paid’ clauses in construction contracts. Apart from prohibiting these particular practices, the bill does not unduly restrict the normal commercial operation of the industry. The parties to a construction contract will continue to be free to set their own contractual terms, as long as they put those terms in writing and do not include these prohibited terms.
Where construction contracts are unwritten, the bill will imply various provisions that the government and industry consider are fair and reasonable with various types of parties. These provisions deal with payment terms, and the clarification of the rights of the parties to deal with unfixed materials when one of those parties becomes insolvent during the course of the contract.
When a party to a construction contract believes it is not being paid in accordance with the contract, the bill will provide a rapid adjudication process. It will operate in conjunction with any other legal or contractual remedy available to the parties. The adjudication process will allow an experienced and independent adjudicator to review the claim and, when satisfied that some payment is due, make a binding determination that money be paid. The primary objective of the process is to keep money flowing down the contracting chain by forcing timely payment, and sidelining protracted or complex disputes.
The process is kept simple and will therefore be cheap and accessible, even for small claims. If a party is not satisfied with the adjudication process, it retains its full rights to go to a court, or use any other dispute resolution mechanism available under the contract. Pending any such action, the determination of the adjudicator stands, unless an application is made to the local court for a review of the determination and the court exercises its discretion to order a stay of the implementation of the determination pending the outcome of the review.
The aim is to ensure that court processes are not used to destroy the efficacy of the process for speedy adjudication outside the court system. The effectiveness of the adjudication process will depend on ready access to capable adjudicators. To achieve this, adjudicators will be registered by a Construction Contracts Registrar appointed under this bill to ensure that adjudicators have the necessary expertise and are independent. The government notes the views of the Law Society that there may be a limited number of such experts in the Northern Territory. However, the government is confident that the market for professional services will prevail to provide the services as needed.
The parties to a construction contract may agree at the outset who they want as their adjudicator if a dispute arises during the course of a project. If they cannot agree upon an adjudicator, the party wishing to make a claim may go to a prescribed appointer who will appoint a suitable registered adjudicator. Prescribed appointers will typically be heads of professional bodies active in the industry and free of any sectional interests. This reflects the common practice in construction contracts to have an independent dispute arbiter appointed by an independent professional with the knowledge and expertise necessary to identify the issues in the dispute so as to be able to appoint someone with the appropriate expertise to arbitrate or adjudicate that particular dispute. The Construction Contracts Registrar may be a public servant or may be appointed from outside the public service.
This bill will not remedy every security payment issue, but it will provide members of the construction industry with simple and effective tools to clarify their rights to be paid and enforce those rights.
I also indicate that it is intended that a bill providing for consequential amendments will be introduced at a subsequent sitting of the Assembly. This bill will deal with matters arising from the repeal of the Workmen’s Liens Act, the most significant such amendment being that of re-enacting some of the general provisions regarding liens that are contained in sections 41 and 42 of the Workmen’s Liens Act.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
BUILDING AMENDMENT BILL
(Serial 260)
(Serial 260)
Bill presented and read a first time.
Dr BURNS (Transport and Infrastructure): Madam. Speaker, I move that the bill be now read a second time.
The bill amends the Building Act to provide for the registration of home builders and the introduction of compulsory home warranty insurance. Government made a commitment to the Territory community that it would bring in these measures to give the protection to consumers that is the norm elsewhere in this country for people building and buying their own homes.
The family home is the single most valuable asset most families have and the consumer protection that it deserves is long overdue. We have all heard horror stories of family and friends whose builders have collapsed, leaving them with partly-built houses and considerable additional costs, as well as stress, to obtain another builder to complete the work. Names like Pricemaster, Bayview and Di Mella from our recent history immediately come to mind. The papers were full of tragic stories of victims. People were devastated as their dreams turn into nightmares.
At the time, the member for Fannie Bay as the Leader of the Opposition made a commitment to provide protection for home buyers. I am pleased to deliver on that commitment by introducing this bill to give consumers real protection.
Consumer protection will be provided through regulating the residential building industry to ensure that home builders are qualified, experienced and competent. This will allow compulsory home warranty insurance for non-completion and non-compliance of works to be provided by the insurance industry.
On 14 February 2003, my predecessor released a discussion paper on the registration of residential builders and home warranty insurance. An industry reference group was formed to manage the industry and community consultation, review the submissions received, and provide advice to government. The consultation was extensive throughout the Territory. Twenty-eight submissions were received and the industry reference group made 70 recommendations on 7 August 2003. Government has accepted 59 of the recommendations. The remaining recommendations generally related to expanding the registration system to include others in the building industry who are not the principal residential building contractor.
After considering, at length, the submissions and recommendations, and having regard to what was happening at a national level, particularly other jurisdictions’ legislative responses to the crisis in the insurance industry, government released details of its intentions. It also formed an extended industry reference group known as the Construction Industry Reference Group, to provide advice to government on the implementation of a range of construction industry reforms and initiatives, including this matter and other bills that will be considered by parliament.
The members of the group are Mr Gerard Butler, consultant (Chairman); Mr John Brears, Building Appeals Board and member of the Building Practitioners Board; Mr Jon Baker of the Territory Construction Association; Mr Graham Kemp, Housing Industry Association; Mr Brendan Meney, representing regional industry; Miss Penny Whinney-Houghton, Australian Institute of Building Surveyors; Mr Paul Nowland, representing medium-sized builders; Mr Joe Gallagher, Construction, Forestry, Mining and Energy Union; Mr Steve Ward, Contractor Accreditation Limited; and Mr John Emslie, Civil Contractors Federation.
The group continues to be very active and effective, and members are able to bring guests from their organisation to ensure maximum industry participation. At the last meeting, the members agreed that the process had been very successful and that consideration should be given to extending the life of the group, to be a forum for government and industry to address matters of mutual interest in the building and construction industry. Government is very appreciative of the work done by the group to date, and I publicly thank all the members who have given of their time to contribute to the overall development of the industry.
It is true that sections of the industry have taken different positions on some matters to those proposed by the government, particularly in relation to the extent of registration proposed in the building industry and the nature of home warranty insurance. I will come back to these matters later.
At this stage, I wish to outline the main aspects of the bill. Matters relating to detail will be in subsequent regulations and determinations. However, I will include comment on government’s intentions where appropriate.
Firstly, builders’ registration. The bill creates a new category of ‘building practitioner’ called ‘building contractor’. The regulations will make a sub-category of Principal Residential Building Contractor. A contractor will need to be registered to carry out prescribed residential building works. The regulations will prescribe those works as new houses and units, and extensions to existing houses and units, regardless of the height of the building. Renovations such as re-roofing and bathroom refurbishing, and extensions below a prescribed amount, proposed at this stage to be $12 000, will be excluded. This type of work is done by trade contractors and these trade contractors will not be required to be registered to do such work. Likewise, subcontractors will not be required to be registered as they will be under the supervision of the principal residential contractor when building houses.
Government’s concern is for the person building a new home or extending an existing one. Most people rarely embark on such projects and are not familiar with the nature of the work which involves a considerable investment. By requiring the builder, as the supervisor of the project, to be registered, reasonable consumer protection can be achieved.
The reform is substantial and the transition will require careful management by industry and government, and will be subject to ongoing review. The Building Practitioners Board will be expanded with appropriate industry membership to administer the registration of building contractors, along with all other building practitioners. All registration for building practitioners will be for a two-year term. Currently, there are persons and firms registered as building certifiers, certifying plumbers and certifying engineers. A registered building certifier can rely on certification by a registered engineer or plumber when issuing a building permit. They have no time limit on their registrations, and it is appropriate that they should.
Under the new provisions, re-registration will be subject to past performance, continuing professional development and a fee. Existing builders who demonstrate competency to do building work will be registered and, subject to their ongoing satisfactory performance, will quality for re-registration. However, new entrants will need to have, in addition to competency, the required qualifications and experience. This will also apply to anyone in the future whose registration has lapsed. If an applicant has accreditation by Contractor Accreditation Limited, known commonly as CAL, any common ground to the two processes will not need to be covered again in an application for registration as a builder; that is, appropriate recognition will be given of prior accreditation. Likewise, any other relevant accreditation provided by a recognised provider will be treated in the same manner.
Owner-builders will be exempted from the requirement for builder’s registration but, instead, will be required to obtain an owner-builder certificate by successfully completing a short course prior to obtaining a certificate. An owner-builder will be restricted by regulation to building on one parcel of land in a six-year period. That building certification will be annotated that the works have been carried out under the owner-builder provisions and placed on the building record to inform future purchasers.
I now turn to home warranty insurance. This is an important matter, along with the builder’s registration. Home warranty insurance provides homebuyers with protection from financial loss due to non-completion of house building contracts due to the building contractor’s death, disappearance or insolvency. It also covers owners and future owners for non-compliance with building regulations of building works; for example, structural defects, for houses and units in buildings up to and including three storeys for six years after completion. Again, this is in the case of death, disappearance or insolvency. The bill provides for both components of home warranty insurance to be mandatory for houses and extensions above a prescribed amount - as I have said previously, proposed at this stage to be $12 000. Renovations that do not require a registered builder will also not require insurance.
Unit developments will not be required to have the non-completion component, as they are built by developers as a commercial venture and sold individually with unit titles on completion of construction. The non-compliance component will be required for buildings up to and including three storeys. The three-storey cap is a national one that other jurisdictions and the insurance industry have made to ensure home warranty insurance remains available. A building above three storeys has a large enough body corporate to seek redress through the courts. Owner-builders and speculation house builders will only be required to have non-compliance insurance to cover the event of the property being sold within the six-year period. Government authorities will not be required to take out non-completion or non-compliance insurance as, by definition, governments will always exist to make good any defects. The insurance policy will be part of the official record in the building file held by government.
The existing Home Building Certification Fund established with the introduction of private certification in 1993 and managed by the Territory Insurance Office on behalf of the government, will be wound up from the date of implementation of the new insurance scheme. This fund already has the national three-storey cap that I have referred to. In order for competitive insurance products to be available in the relatively small Territory market, it is important that the prescribed conditions relating to the home warranty insurance are consistent with the norm nationally.
I now turn to matters that are related to the registration of builders and home warranty insurance. In order to increase building practitioner accountability and reduce the vulnerability of the home buyer to financial loss, the following reforms to the certification process are provided for in the bill. For residential building works that require non-completion insurance, there must be a contract between the parties with certain prescribed matters. The prescribed matters are proposed to include a declaration that the builder has secured the home warranty insurance, a declaration that the home buyer has secured appropriate finance; a statement of the work stages to which the progress payments will be linked, and the amount of each progress payment; the location and description of building works to be undertaken; the proposed building permit number, which identifies the compulsory building inspection stages; a dispute management process between the parties; and a deposit limit.
The bill requires evidence of a project’s specific home warranty insurance policy, and a building contract, prior to the issuing of a building permit and commencement of building work. Compulsory inspection stages will be prescribed by regulation. Generally, they are proposed to be at the stages of pre-slab, pouring of the slab, wall framing or reinforcing of block walls, roof frame, wet areas, and final inspection prior to the issuing of the occupancy permit. The building certifier will be responsible for inspection and certification of each compulsory stage.
As we all know, the Territory covers one-sixth of Australia. The Building Act does not apply to it all. However, there are remote areas to which it does apply. Consideration has been given to the difficulty and cost of servicing those remote areas and it is proposed to exempt them from some of the requirements, particularly those that relate to mandatory inspections. Government will give people in those areas the choice to have the full package, or only part. The principal residential building contractor will be required to sign a legally binding declaration upon completion of the building project that the works comply with the building permit.
I referred in my introduction to the matters of difference between some sections of the industry and government. I now wish to address these two matters. Firstly, there has been criticism that the government is not going far enough in the regulation of the industry. Those who hold this view want a fully regulated industry, including trade contractors dealing directly with the public, generally doing renovations and repairs, and subcontractors. As I have already said, the government maintains that the primary issue is consumer protection, and the target audience is the house builder and the house or unit owner when they are making substantial investment in property. The objective is achieved by registering the principal residential building contract.
Secondly, some have called for the home warranty insurance not to be made mandatory until the insurance difficulties of recent years are behind us and suitable competitive insurance products are available in the Northern Territory marketplace. A major issue relating to insurance eligibility is the capitalisation requirements of the insurance industry for a building contractor. Everywhere else in the country, builders must have between 5% and 20% of their annual turnover as accessible assets. This, combined with the financial reporting that will be required, will mean that builders may need to restructure their companies, as has happened in every other jurisdiction.
Home warranty insurance has had a controversial history interstate, particularly since 2001 following the collapse of HIH. Most of the controversy has been in New South Wales and Victoria where there have been numerous inquiries and investigations. In 2002, the Ministerial Council on Consumer Affairs engaged Professor Percy Allen to do a National Review of Home Builder’s Warranty Insurance and Consumer Protection. Later that year, the working party of the Standing Committee of Officials of Consumer Affairs made a response to the report. In New South Wales in 2002, the joint Select Committee on the Quality of Buildings handed down the Campbell Report. In 2003, Mr R Grellman presented his report to the NSW Home Warranty Insurance Inquiry to the New South Wales Governor.
This was followed later that year by A Review of the NSW Home Warranty Insurance Inquiry 2003 by Peter Tyler who was commissioned by a consortium of contractor associations and professional institutes. It is understood that the consortium included B-Fair and Builders Collective, lobby groups formed by small builders opposed to private underwritten home warranty insurance and advocating government underwritten schemes.
All of these reports and the many debates, demonstrations, letters and media articles they have generated, produce many conflicting statistics to support their recommendation. However, the end result is that government has rejected alternative models, such as voluntary and government-run schemes and amended their regulations and administrative requirements to ensure there are suitable competitive insurance products in the marketplace.
Queensland is the only jurisdiction with a long-standing government-run scheme. The Queensland government takes 25% of the risk and reinsures the remainder through insurance companies. It does appear that the major issues have been resolved, and that there are three insurance companies established in the national market with a fourth giving serious consideration to entering the market. Some evidence of this is that Australia has just experienced a boom in the building industry that would not have been possible if the industry was being seriously restricted by the availability of home warranty insurance.
The government has consistently given assurances that the scheme will not be commenced until suitable competitive products are readily available in the Northern Territory. In order to provide the substantial lead time that has been shown to be necessary interstate and allow more time for the insurance market to demonstrate it is working satisfactorily, it is proposed to stage the introduction of the scheme. The registration of builders part of the scheme will be commenced in January 2006, and the home warranty insurance part later in that year.
In conclusion, considerable work still needs to be done on regulations, determinations and administrative procedures. The Building Practitioners Board will need to be restructured. Transitional arrangements for existing builders, processes for the assessment of applications, staff recruitment, fees and funding will all need to be addressed. Qualifications will need to be determined, and training and education programs developed. Industry will need to make the required applications, restructure business if necessary, undergo any training requirements and budget for the associated cost.
All building contractors affected by the Building Amendment Bill will also be affected by other bills that are the subject of consideration by the Construction Industry Reference Group. It is, therefore, essential that the government continues to work closely with industry to ensure mutually beneficial outcomes in the interests of the whole community. A comprehensive communication strategy has been developed to ensure the entire building and construction industry and the Territory community is fully informed on the progressive implementation of the complete package.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
MOTION
Note paper - Auditor-General’s August 2004 Report to the Legislative Assembly
Note paper - Auditor-General’s August 2004 Report to the Legislative Assembly
Continued from 17 August 2004.
Ms MARTIN (Chief Minister): Madam Speaker, the Auditor-General reports to the Legislative Assembly twice each year on matters arising from audits conducted by his office in the previous six months. The latest report was tabled on 17 August this year.
The audits conducted and reported on by the Auditor-General provide parliament with an independent opinion on findings about financial information, internal controls and performance management systems of the Territory public sector. As well as appraising existing practices, the Auditor-General makes recommendation for improvement. Through his regular reports, all members of this parliament are better placed to appraise the performance of public sector administration.
As well as reporting to the Legislative Assembly, the Auditor-General brings these matters to the attention of agency chief executives for their consideration and action as necessary. I am pleased to note that in his latest report, the Auditor-General’s overall finding was that the accounting and control procedures that he examined provide reasonable assurance that the responsibilities of the accountable officers as set out in the Treasurer’s Directions are being met.
Other general findings were in the area of asset management. The Auditor-General noted that there had been a general improvement in the management of assets, although there are areas for further improvement. In my term as Treasurer, management of assets was one of the issues associated with the introduction of accrual accounting. Management and valuation of assets was something considered to be an area in which, over time, agencies would come to have a greater understanding. It is good to note that the Auditor-General already, in a couple of years, is saying that that has progressed some way.
It is pleasing to see that internal audit is an area where the Auditor-General notes that there continues to be a general improvement and, in relation to accounting and property manuals, it is reported that they are generally well-maintained.
The report raised some whole-of-government issues which are: the need for agencies to maintain and keep up-to-date registers of fees and charges, losses or contingent liabilities; that, while procurement processes were generally in accordance with regulations and guidelines, it was noted, however, that there are some instances where procurements where not gazetted; and when accountable officers’ trust accounts were examined, some instances occurred where reconciliations were not balanced or were difficult to interpret.
The findings in relation to the Department of Chief Minister noted, in examining payments related to ministerial travel, the Auditor-General concluded that procedures were sound and adhered to in practice, and travel entitlements were paid in accordance with relevant Remuneration Tribunal Determinations. In the area of frequent flyer points, the Auditor-General made recommendations concerning controls over their accumulation and use. The Auditor-General’s comments covered the issue of effective monitoring of the usage of frequent flyer points accumulated as a result of official travel.
Current Northern Territory public sector policy states that any points accrued to an employee as a result of official duty on behalf of the Northern Territory government may only be applied to subsequent official duty travel. To implement an appropriate system that ensures frequent flyer points are only used for official travel, and to ensure maximum use of these points, is difficult because the department is not able to access frequent flyer statements held by individuals and the number of frequent flyer seats made available by the airlines is limited. The department will continue to investigate ways to implement this recommendation, and will also review the outcomes of the notional recording of points being trialled by the Department of the Legislative Assembly and will determine whether such a system is worthy of further investigation.
Other areas highlighted by the Auditor-General concern specific activities in other agencies, and I will leave the ministers of those agencies to make appropriate comments on those matters.
I gave an undertaking to deliver open and accountable government to Territorians. The independent opinion of the Auditor-General is an important aspect of this commitment. His comments, reports and recommendations are viewed most seriously by government and given due consideration by ministers and chief executives alike. I place on the record my thanks to the Acting Auditor-General, Ken Simpson, for carriage of this report, and wish him well in the future.
I welcome our new Auditor-General, Frank McGuiness. We know Frank from his time in Treasury in the Territory, and certainly welcome him back on board. He is someone who has a long commitment to the Territory and a long association with the Territory. I am sure this House will join me in welcoming Frank McGuiness as our new Auditor-General.
Mr MILLS (Opposition Leader): Madam Acting Deputy Speaker, I also echo the words of the Chief Minister in welcoming Frank McGuiness. I appreciated his involvement in the estimates process a couple of years back, and certainly welcome him back to this most important of roles. I also acknowledge the fine work of Ken Simpson, who acted in the role for a period of time. Much appreciated. The role of the Auditor-General is one of such importance that I welcome Frank to that role and look forward to the ongoing reporting to this parliament.
In going through the report, I note, and am reminded, that a range of issues are assessed by the Auditor-General and, in particular, the Department of Health and Community Services and an audit of procurement processes. The object of the audit was to assess whether internal controls over the procurement process of the Department of Health and Community Services provide reasonable assurance that there is compliance with prescribed requirements. That was the purpose of it. It is a concern that in conducting that audit, that there were some deficiencies, particularly in light of the very embarrassing revelations that have been brought before this parliament in previous sessions with regards to procurement that appeared to favour supporters of this government, and cast a serious shadow over the procurement process and this government.
On the face of it, the audit was conducted and it found that there are issues related to certain procurement procedures within DHCS requiring attention. One would have thought that these matters would have been the top-of-mind issue that would have been closed down in light of the very embarrassing revelations that have been presented to this parliament in previous sessions.
The revelation, of course, is that a tender request for a certificate of exemption did not have evidence of an approval by the minister responsible for procurement policy, which is a requirement of a contract that is valued in excess of $250 000. That is the concern; that with the level of interest in procurement, and particularly within this department, that this has been uncovered. I thank the Auditor-General for his reporting on this matter.
I can only urge the minister responsible to ensure that those procedures are addressed and corrected so that we have a greater level of confidence in the procurement process in the Northern Territory, and that shadow and slight that has fallen upon this government and those who are involved in the last issue no longer will visit and discredit the procurement process.
I also note that a number of contracts with values in excess of $10 000 were gazetted but were not processed by Contract and Procurement Services. That follows an accompanying recommendation. Once again, it is surprising that we have this uncovered also by the auditor’s scrutiny. Once again, I urge the minister responsible to doubly reassure those who are involved in procurement of government services that we can have confidence in the procurement process.
I turn to another area of concern; that being - and I seek members’ opposite contribution on this - the issue of Jabiru Town Development Authority and the key finding that there is nearly $9m that is owed to the government. I need some – as any member would - clarification of what that actually means, and what are the implications for …
Mr Stirling: Get a briefing. It has been there since your government was in office!
Mr MILLS: I am simply in this parliament raising this is an issue, and you will have your opportunity to address this issue as you, in government, have responsibility to respond to these matters. I am simply saying that this is a concern that has been highlighted within this Auditor-General’s report. I seek some further information in this Chamber on the public record as to what this actually does mean for the future of the Jabiru Town Development Authority.
Dr TOYNE (Health): Madam Acting Deputy Speaker, I speak on the Auditor-General’s August report to the Assembly in so much as it deals with matters related to the Department of Health and Community Services and the Menzies School of Health Research.
I will deal first of all with the procurement issue that was included in the Auditor-General’s report; that is, the tendering and rollover of contracts.
The department’s procurement systems and procedures were audited to determine whether they provided the department with reasonable assurance that all prescribed requirements were being complied with. The audit findings concluded that the department’s internal controls provided reasonable assurances that there was compliance with the procurement requirements of the NTPS. However, issues were raised about a number of procurement procedures which, in the view of the Auditor-General, required attention. I am advised that one of these issues related to a certificate of exemption for a contract initially estimated to be less than the $250 000 threshold requiring approval by the minister for that procurement.
In this situation, the department was purchasing three years supply of consumables for a particular piece of laboratory equipment. Based on previous experience with this equipment, the departmental officers did not expect the cost of the laboratory test materials to be in excess of the threshold. When the sole supplier’s final costings were received in the department, the department should have stopped the process and sought further ministerial approvals, including the minister for procurement. In future, when a final costing exceeds $250 000, the department will ensure that all required approvals are obtained before the purchase is completed.
To ensure that errors such as this do not occur in the future, I am advised that the department has established a central contracts coordination unit which will be responsible for liaison between the contract and procurement services, the procurement review board, and the departmental requesting officers. All tender procedures will be channelled through this unit to ensure the correct procurement processes are adhered to. This will address the concerns raised by the Auditor-General.
Dealing now with the management of non-government organisations in the delivery of health services: the Auditor-General conducted an audit of the department’s performance management systems to determine their adequacies in assessing the effectiveness, efficiency and economy of non-government organisations in achieving the department’s objectives. The Auditor-General acknowledged in his findings that the department had been conscientiously seeking refinements in its non-government organisation administrative processes. However, for the department’s performance management systems to sufficiently determine effectiveness, efficiency and economy, a number of areas needed improvement.
In response to these concerns, I have been advised that the Auditor-General’s recommendations have been incorporated into the department’s review of its administrative systems and overall relations with non-government organisations. I am optimistic that this review will be of considerable assistance to the chief executive officer in improving the agency’s management of non-government organisation processes.
Similarly, a number of actions in response to the Auditor-General’s audit have been implemented. Responsibilities for the administration of a non-government organisation’s funding, for example, has been transferred from the community services division to the chief finance officer. This will increase the focus on procedural compliance, consistency and accountability.
Looking now at performance reporting in the DHCS 2003-04 Annual Report: the Auditor-General also reviewed the department’s performance reporting and assessed the agency’s compliance with Treasury Circular B03-03/04, reporting of output performance and its compliance with section 28 of the Public Sector Employment and Management Act. The audit opinion from this audit indicated that although the department’s performance reporting complied with Treasury Circular B03-03/04, it did not fully address the requirements of section 28 of the Public Sector Employment and Management Act. It was considered that although the performance reporting was comprehensive, it did not fully address the agency’s efficiency and effectiveness as required by section 28.
Since the introduction of Working for Outcomes in 2001, I am advised that this department has continued to develop the accuracy and comprehensiveness of its performance reporting. I am pleased to be able to report that the performance measures for Hospital Services, an area of particular concern for the Auditor-General, now includes fixed costs. This substantially increases the proportion of total costs addressed by the agency’s performance reporting.
As previous annual reports only reported hospital performance in relation to variable costs such as staff or consumables, there was little accounting for performance in relation to fixed costs such as capital and infrastructure. This, as pointed out by the Auditor-General, only addressed a small proportion of the total costs of providing hospital services and made comparisons with other jurisdictions difficult. The department has also assured me that in its 2003-04 annual report it will improve considerably the agency’s reporting of achievement against organisational aims and objectives, addressing another of the Auditor-General’s concerns.
Dealing now with the Menzies School of Health Research: the Auditor-General audited Menzies’ financial statements for the year ending December 2003. The Menzies School of Health Research became a controlled entity of the Charles Darwin University effective 1 January 2004. This will result in Menzies’ financial reporting being consolidated into the financial statements of the university. The Auditor-General identified some important accounting policies which will need to be addressed to ensure an effective consolidation of Menzies into the university. It was acknowledged that the alignment of accounting policies between the two entities was in the process of being addressed at the time of the audit. An unqualified audit opinion was issued by the Auditor-General. Had there been significant audit issues, a qualified opinion would have been provided.
Madam ACTING DEPUTY SPEAKER: The question is that the report be noted.
Dr Lim: No.
Madam ACTING DEPUTY SPEAKER: Did you wish to speak to it, member for Greatorex? You were almost too late.
Dr LIM (Greatorex): Madam Acting Deputy Speaker, I thought there would be more speakers on the other side of the House. I would have thought that the minister for Education might have spoken about it as there is something in there about LATIS, and the minister for Police might have spoken about it as it has something to do with police, but obviously not.
As the newly-appointed shadow Treasurer, I thought I should have a look at this report more closely. As a member of the Public Accounts Committee for some time now, with my new responsibility, I will be scrutinising these much more closely than before.
The Chief Minister was reasonably happy with the Auditor-General’s report. She quickly glossed over a few issues that he raised. I thought I should go through this in a bit more detail and raise some of the issues that have already been written about by the Auditor-General.
First, a couple of comments that the Auditor-General made on page 10 of his report:
- Some of the findings have been raised in previous reports to the Legislative Assembly. Progress is,
however, being made and, as a result, I have continued the practice of not naming agencies/entities
at this time.
The findings reported do not specify whether the matters were noted during an ACA or during an interim
audit and there was no evidence that the control weaknesses identified resulted in any financial losses to
government.
This is a good report. This is great, and from that point of view, at least we can be assured that there are no financial losses. But, he then goes on to say:
- However, it was noted that for two agencies that whilst audit committees had been established and risk
assessment performed, the internal audit process had yet to reach its full capacity in that an internal audit
program had not been established to ensure that the identified risks were addressed.
The PAC has been looking at this in greater detail, and we are obviously receiving internal audit reports, and as a result of this comment made by the Auditor-General, I will definitely be looking at this more closely.
With regard to the Treasurer’s Directions, and the Chief Minister made some comment about that, the Auditor-General was concerned and said:
- … for a number of agencies, the following registers required by Treasurer’s Directions were not always
maintained or were not up to date: …
They included the register of losses, the register of contingent liabilities, and the register of fees and charges. When you think we are now moving to accrual accounting, these things must be noted very conscientiously, otherwise accrual accounting will fall over.
In respect of procurement matters, he mentioned that instances were noted where procurements had not been gazetted, and obviously that is not the way to go.
I come now to specific departments. We heard the Minister for Health saying that things are not too bad and that he is not too concerned about it. However, obviously the key finding by the Auditor-General that anything in excess of $250 000 needs ministerial approval and was not followed through is a concern. More significantly, when it comes to the delivery of services by NGOs, the Auditor-General was quite concerned. He mentioned that there were some weaknesses in the Department of Health and Community Service’s internal control systems:
- … as identified by an internal audit and the DHCS has made some, but insufficient, progress in its desire
to implement an effective, efficient and economical NGO management system.
This was written in the August 2004 report. I recall this government getting up some two years ago applauding the Bansemer Report, how good that was and how all the recommendations contained therein were going to make the health system so much better. Well, the Bansemer Report was tabled in this House at least two years ago, and, in that report, it made the same comment about the weaknesses of DHCS and the internal control systems of NGOs – two years. It appears from this report that not much has been done. I believe it is important that this government starts to look at that a lot more closely. If not, how are they going to be able to maintain a close watch on the funds that it provides to NGOs?
Staying with the Health department, let me draw your attention to another matter that concerned me when I read through this document. Let us hope I can find it quickly. On page 47 of the report, I draw the Minister for Health’s attention to it so that he can get his department to report to him. In it, the Auditor-General has this to say:
- The annual report contains a number of measures of efficiency within the outputs reported in pages 61 to 139 and
they can be linked to Budget Paper No 3 and to DHCS’ seven output groups. However, the efficiency measures could
not be reconciled to DHCS’ total expenditure: For example …
At the bottom of the table, ‘comprehensiveness of reporting on efficiency of DHCS services’, it says, ‘cost of activities not reported, $244.464m’. I mean, cost of activities not reported, $244.5m. Now, if you have such an amount of money unreported, it is no wonder you cannot keep a clear overview of what is being spent in the Health department. It is no wonder you have a $30m to $50m blow-out in your budget if you do not control, or you do not know what your costs are. This is how bad that is, and that is only under the output group, Hospital Services. When you go to the output group, Community Health Services, there was $67.943m of costs of activities that were not reported. When you combine the two together, it is $310m worth.
The Auditor-General has said quite clearly that DHCS should develop and report measures of costs that more comprehensively address all the costs of providing health services. When the Auditor-General then provides us with his comments to the department for a response, what a limp-wristed response we have. This is the DHCS’s comment:
- There is of course a public policy issue about the relative priority to be given to the extent that output
measures reflect strategic outcomes or whether they should simply cover the highest possible proportion
of output costs. Ideally the improvement of measures should achieve both goals.
- However, sometimes it is inevitable, given the limited number of measures feasible, that to some extent a
choice has to be made between these two ideal goals.
Madam ACTING DEPUTY SPEAKER: You can continue.
Dr LIM: Okay. When you go to the Department of Police, Fire and Emergency Services, there are issues. For instance, the Auditor-General said, where he is talking about two key performance issues being members of the public aged 18 years and over who felt safe or very safe at home alone during the day, and members of the public aged 18 years and over who felt safe or very safe at home alone after dark. His comments was:
- For both KPIs the NT score reported in the annual report was lower than the target and the national
average yet no explanation was provided to indicate the significance of this.
The Minister for Justice and Attorney-General now keeps putting his political slant on all those wonderful crime stats that he puts out. When he gets to the actual police stats, we start to question whether they were really accurate or valid. The Auditor-General says when there are differences in comparison from year to year, there are no explanations provided to explain the significance of the result. Is it because the government has given the police the order: ‘Get the results for us, let us put the political spin in, and we will do the interpretation and you, the police, do not’? Surely, you would expect the professionals to do the right thing and analyse the results from their contacts rather than providing it just as a political analysis and putting out results in a political perspective.
Those sorts of comments are scattered right through the report on the NTPFES. For instance, at the bottom of the page in regards to services to judicial process, it says:
- The statistics do not however provide comparison for prior years or expected results or provide any analysis
of what 48% juvenile diversion rate means to the effectiveness of the outcome.
You can divert all the juveniles who come to court to a diversion program, but are you getting any positive outcomes from that? Nobody knows.
The Auditor-General also made the comment:
- Without going into detail (which has been provided by the NTPFES) the following observations were made:
doubtful accuracy of some of the measures;
not available …
I will read that again; that is important:
- one estimate being provided in budget papers but the annual report noting the measure was
not available …
So we are using very rubbery figures:
- lack of explanation of significant differences between estimate and actual performance.
With all that critical comment made by the Auditor-General, the police department’s comment was that it agrees to and accepts the recommendations in the report. They accepted fully that what the Auditor-General said was, in fact, correct.
I am glad to see that the DCIS report was relatively good. It was a portfolio that I had just prior to this week and, even at estimates, I found that DCIS had been performing reasonably well. I congratulate them on receiving a clear report from the Auditor-General.
With regard to DEET, the issue covered by the Auditor-General is about LATIS. As I said, the concept of LATIS was to improve student access to information technology to improve learning outcomes by transforming, enhancing, enabling and amplifying education programs to user of the technology. I believe that has been achieved over the last three and a half years. Initially, the program was designed to provide training to teachers as well in government schools and to provide access to the Internet for all schools in the Territory.
I note that the government has increased the bandwidth, which obviously is necessary to enable all our students and teachers, who now have their own laptops, to access the Internet. I think the bandwidth should continue to grow, because as people continue to use the Internet the demand will definitely grow and the bandwidth must be made freely available. What is a pity is that the bandwidth has been divided; one larger section for government schools and a smaller bandwidth for non-government schools. It would be easier to aggregate the lot and let the whole lot then use the bandwidth as they see fit.
The Auditor-General’s report does not give the government a clean skin. There are issues there, particularly in Health, apart from the Metis consultancy that the Leader of the Opposition commented on earlier, we are still waiting for the Auditor-General’s report on that. I would have thought it would have been ready to be tabled in this Assembly’s sittings this week. Unfortunately, not. The greatest concern I have is about issues that were raised in a report done by Bansemer two years ago that has not been followed through. Then we have the cost of activities not reported to the value of something like $310m.
If this government is doing it properly, if the Health department is being managed properly, then we should know all these figures and what you have done with that money. Without it, we just do not know. We keep saying they are not managing properly, the patient outcomes are not good, and with expenditure of $310m without knowing where it has gone, obviously, you do not know where your money is going and therefore, you do not know how your blow-out then occurs. A $30m to $50m worth of blow-out is huge. Then when you have $310m that you do not know where it has gone, obviously money gets lost in the system and this government keeps pumping more and more money in to the Health budget. When will it stop?
Apart from putting all this money in, which I do not think any minister would complain about, you would think that patient services would improve. When you have patients at the Royal Darwin and Alice Springs hospitals lying on casualty trolleys for days on end waiting for a bed, then obviously the money that is being spent, is not being spent in the right areas. You now have elective surgery cancelled on a very regular basis in Alice Springs. The whole of Alice Springs Hospital is quite dysfunctional. You have to ask the question: you are spending so much money, yet you are not delivering services to the community, so what are you doing with the money?
This is where this government’s economic performance, financial control, is not good. They do not seem to know what they are doing, and they do not seem to know how to get their act together properly.
I am sure that the new Auditor-General will be able to assist in lots of ways. I was part of the interview panel which recruited Frank McGuiness. I look forward to his continuing good work in the Territory and hope he stays with us for the duration of his contract, and provides government and opposition with full and frank advice, and we can talk much more about the Auditor-General’s report in the future months and years to come.
Debate suspended until after Question Time.
STATEMENT BY SPEAKER
Conduct in Chamber
Conduct in Chamber
Madam SPEAKER: Honourable members, before we commence Question Time I would like to make a comment on the manner of debates that have occurred this week, and the public criticism that this Assembly has attracted in the media in respect of the behaviour and language of members, in particular last night’s adjournment debate.
It is extremely disappointing that the trend towards personal abuse and accusations has increasingly lowered the standard of debate and, of course, the public perception of all members whether they engage in that behaviour or not.
It should not be necessary to remind members that personal references not only lower the standard of debate but provoke retaliation leading to disorder in this Assembly. Such behaviour seriously diminishes the status of the Assembly in the estimation of the community.
I have spoken with both the Chief Minister and the Leader of the Opposition and to all Deputy Speakers. Members leave no other option than the implementation of Standing Orders 240A and 240 if they persist in unparliamentary and derogatory remarks.
Robust debate on bills is encouraged but personal attacks are not. I urge all members to exercise their privilege of freedom of speech with responsibility, and to maintain moderate language towards all members in this Assembly.
Members: Hear, hear!
MOTION
Note Paper - Auditor-General’s August 2004 Report to the Legislative Assembly
Note Paper - Auditor-General’s August 2004 Report to the Legislative Assembly
Continued from earlier this day.
Dr BURNS (Lands and Planning): Madam Speaker, basically the Auditor-General’s comments in relation to Department of Infrastructure, Planning and Environment go to compliance orders. The Auditor-General, as part of the audit of the public account, each year conducts compliance audits of the large agencies so that an opinion may be formed regarding the Treasurer’s Annual Financial Statement, commonly referred as the TAFS. Members would be aware that the financial results of all agencies feed up to the Treasury where they are consolidated to produce this particular statement.
The Department of Infrastructure, Planning and Environment is one of the largest departments and, as such, the department’s activities are of significant importance to the TAFS. It is, therefore, critical that the activities of the department are compliant with the accountability and control requirements. Although agencies were not specifically mentioned as is the custom of the Auditor-General in these general reports, I am able to inform members that the department was the subject of an interim compliance audit in April of this year for the purposes I have just mentioned. The results of the audit revealed that the department’s systems and procedures were generally satisfactory. However, like any administrative system, there is always room for improvement.
The Auditor-General, at the conclusion of the audit, made a number of recommendations to assist the department to improve some procedures. I am advised the department has accepted and will implement these recommendations. The recommendations I have just alluded to include the format of internal registers, a more detailed reconciliation process of some minor trust accounts, improvements in reconciliations between ledgers and non-current assets, and the more timely attention of the writing-off assets when these assets are no longer available for use. Section 15 of the Financial Management Act dictates that an agency must ‘… have an adequate internal audit capacity’. Members may recall a former Auditor-General set out criteria that would demonstrate that an agency had an adequate internal audit capacity.
The operation of the Department of Infrastructure, Planning and Environment audit committee, the employment of a manager for internal audits, and the establishment of an internal audit program have been carried out. These are in the main, I and the department believes, sufficient to satisfy the criteria that an internal audit capacity exists. This leads me to the final recommendation I will mention that flowed from the compliance audit. The Auditor-General found that the internal audit function of the department had ‘… improved significantly from last year’s audit’.
However, as I have said before, there is always room for improvement and with this the department has accepted the recommendation that revolves around the structure of working papers and terms of reference for audits.
Ms MARTIN (Chief Minister): Madam Speaker, I thank the members for their contribution. As the Auditor-General has indicated in this August report, he is satisfied broadly across government that mechanisms are in place, that accounting of government agencies is being dealt with well. He makes some good points. My approach as Chief Minister and head of government is that we listen carefully to the Auditor-General. He is there to make government more accountable, to make our processes more financially responsible, and his purpose is to make sure that we all work together. I certainly appreciate what the Auditor-General has to say in his report.
As I said in my earlier speech, I thank Ken Simpson for his role as acting Auditor-General. I welcome on board our new Auditor General, Frank McGuiness.
Motion agreed to; paper noted.
CRIMINAL CODE AMENDMENT (CHILD ABUSE MATERIAL) BILL
(Serial 253)
(Serial 253)
Continued from 6 October 2004
Ms CARNEY (Araluen): Madam Speaker, I know that some of my colleagues also want to talk about this bill. I indicate from the outset that it is not opposed, but we do have some questions in relation to parts of it, provided the Attorney-General does not mind. I hope that having raised some questions, he will do us and Territorians the courtesy of providing us with the answers. We support the bill and the sentiments that underlie why the government has introduced it.
There is some concern about the possibility - and it is not put any higher than that - that someone could be innocently caught up as a result of this bill. We therefore ask what protections exist for innocent people? We use the example, and it is a fairly obvious one, which you have probably thought about; that is, if someone goes to a government auction, picks up a computer and there are images on it that they do not know are there, what happens to a person who is ultimately tracked by police with those images? In light of the bill in its entirety, those sorts of questions need to be addressed and the answers conveyed to Territorians, some of whom will be concerned. I am well aware, of course, that in the course of police investigations, they are targeting specific individuals, and they should. However, if someone has images on their computer that fall within this bill and they bought the computer without knowing they were there, we ask the question: should such a person be required to engage the services of lawyers at great cost to get all the way to court? They, of course, will not be pleading guilty to such an offence, but why should a person be forced to expend what could potentially be a significant amount of money on a defence? If you can answer the questions we put, that would be of assistance not only to us, but to Territorians.
We are with you. We want these people chased, hunted down, and locked up – absolutely - but we are concerned about some innocent people who may be caught up along the way.
We were interested that, as we understand it, much of the bill is based on Commonwealth legislation and we are the first state or territory to produce this legislation. Of course, we are a small jurisdiction and it is the case that, historically at least, we have waited for other jurisdictions to come up with an array of legislation because we have learnt lessons from those jurisdictions. We see it regularly in the parliament. It applies to legislation of the Labor government and it was the same with legislation from the CLP. It is not exactly cutting and pasting of legislation around the country, but the Territory has traditionally looked at what else is on offer and benefited from the difficulties and positives that some jurisdictions have had.
We just make the point. I guess you do not need to even answer it, but because we are a small jurisdiction and because of our history, we wonder whether it may have been better or preferable to wait an extra couple of months because I understand that other jurisdictions are working on this. If the Territory wants to take the lead, that is fine. There is nothing wrong with that, but historically we have always learnt from other jurisdictions.
I do ask whether the Criminal Lawyers Association has been consulted, together with the Law Society and other groups and, if so, what advice has been provided to you? We assume that the bill has been widely circulated, but I would like your advice on that.
They are the comments that I need to make in relation to the bill, but I understand other people want to make some others.
Mr MALEY (Goyder): Madam Speaker, firstly, I place on the Parliamentary Record that some of the criticisms that I am going to make of this bill are squarely laid at the feet of the current government and should not be taken to be a reflection on Parliamentary Counsel, who are creatures of instruction.
I can indicate that I will support any endeavours by this government to genuinely strengthen the tools which are available to our law enforcement agencies in dealing with those very small numbers of people in our community who have a predisposition to possessing child abuse material, child pornography, whatever sort of material comes into that broad category.
However, all legislation that falls to be dealt with by this parliament needs to be examined fairly and objectively to ensure that it is good law, and that the tools that are used to combat the evils of child pornography do not necessarily invade and endanger the innocent citizens who live and work in the Northern Territory.
Recently, it does not come as any surprise, the police descended upon a number of homes, churches and schools across Australia. I understand from what I gleaned from the papers that about 200 people were, or are currently, under investigation for possessing child pornography-related materials or images. Several names were released, one way or another, to the media and none of those people, I understand, had in fact been charged; they were only under investigation. Yet, the very public stigma which is attached to even being investigated resulted in four men taking their own lives. One man, I am told, left a note saying he was completely innocent, but that the public backlash amongst his family and friends was such that, in his view, unfortunately, and very sadly, he felt he had to take that action and took his own life.
I just make it clear that I have no sympathy whatsoever for those people who do actually engage in this serious antisocial conduct, like possessing and downloading that material. However, I am concerned that some people who are innocent will be caught up in this legislative net. Innocent people can become the victims here if the state’s power remains unfettered and, of course, those tragic consequences which we read about in the paper can occur.
There is a real life example right here in Darwin. Everyone knows about this and everyone is a bit nervous about it, but I am going to be up-front about it: our very own Bob Collins. Mr Collins’ reputation has forever been damaged by the allegations that have been made against him. Somehow, the NT News were informed, and I suspect by the police, though I note the official story from the police is that the press was merely driving by and perchance were in an ideal position to photograph the police seizing a computer from Mr Collins’ home. I am not sure whether it made the front page, but I do recall it certainly being in the news, and there is no doubt that this man’s reputation has been damaged forever.
Now, every time an article about Bob Collins appears in the paper, there is always a reference to the police investigation or the allegations. Everyone knows exactly what is meant. It is reinforcing the stigma which, unfortunately, is now attached to this man. The paper does not have to say anything further because the seed has already been planted. Even if Mr Collins is never formally charged, he will have to live with the stigma of a person who interferes with young Aboriginal children. There is no doubt that his public credibility has been completely and irretrievably destroyed. If Bob Collins is innocent - and I will assume that he is unless the contrary is proved - a huge disservice has been done to a man who has certainly enjoyed a fantastic public reputation as a man who was passionate about the Northern Territory. In fact, he co-chaired the Economic Development Summit with Neville Walker. This is a real life tragedy which has occurred in our own backyard.
The new legislative provisions increase the basic penalty contained in section 125B of the Criminal Code from two to 10 years and, quite frankly, I have no problem with that. Indeed, I am of the view that the increased penalty properly reflects the public opinion that such conduct is completely unacceptable.
The provisions should raise concerns in the minds of all reasonably-minded people. I will just go through some of them, in particular, before we move onto the committee stage were I can ask the Attorney-General to deal with them and seek advice if required. Proposed new section 125B(3) reverses the onus of proof. In other words, the defendants, once charged, I assume by the police, must then prove that he or she is innocent. That means running the gauntlet of a trial or hearing. The right to be presumed innocent forms a bedrock of a fair criminal justice system. It is a right that protects the people of the Northern Territory from the excesses of official power. Indeed, it is the rule of law. The presumption of innocence is one of the differences which separates our democratic society from more totalitarian regimes.
Commentators have often said that the incidence of legislation that reverses the onus of proof is more prevalent in an oppressive culture of prosecution and punishment, as apposed to a genuinely free democracy. Politicians simply make laws because they want to demonstrate that they are tougher on one particular category of offending than any other really smacks of abusing the trust which people have placed in them. The Martin Labor government have become the pigs in George Orwell’s Animal Farm. There are countries around the world that have constitutional guarantees which, quite rightly so, have been interpreted broadly to protect its citizens.
The prevalence of any type of offence is not a blank cheque for the legislature to erase all procedural safeguards. In fact, precisely when public emotion is at its highest, those procedural protections against the possible miscarriage of justice are most necessary. Some politicians deliriously make the connection between crime and our commitment to uphold human rights. It is a dangerous belief. Perhaps I have said that poorly, but some politicians, it seems, believe that, if you have human rights then crime, of course, is going to get out of control. They are not; they are mutually exclusive. There is no overlap and they can co-exist, and have co-existed for hundreds of years. It is a kneejerk reaction to engage in legislation which erodes those safeguards, which damages the procedural fairness which every person in the Northern Territory, Australia, and in most western countries, enjoy.
I was on the Internet yesterday having a flick through various legal sites, just hoping to see what people who really know what they are talking about say about this particular topic. There is a huge amount of material. I have printed some out and, also, with the assistance of the library, have obtained some articles. Many people talk about Canada being a similar democracy in terms of size and economic powers as Australia. They speak English, they are certainly allies, and many of their laws are similar. It is not uncommon for a court in Australia to have regard to a judicial determination which has fallen from the Superior Courts in Canada. They have a Charter of Rights over there similar to the Bill of Rights, I suppose, in the United States.
One of the sections of the Charter of Rights talks about, amongst other things, the ancient right – I will read it, and put it on the record.
- Section 11D of the charter protects, amongst other things, the ancient right to be presumed innocent until
proven guilty. This right is one of the oldest and most fundamental tenets of the criminal law in common law
jurisdictions. It is also guaranteed by the United Nation’s Declaration of Human Rights. The Supreme Court
of Canada has been unequivocal …
I am reading here from an article on the Charter of Rights and Freedoms, and I am going to quote Chief Justice Dickson in a moment. The Supreme Court of Canada is a federal system; a number of jurisdictions bringing legislation to power which reverse the onus from usually firearms and drug offences, but you name it, people all round the world, jurisdictions, ill-informed legislatures have tried to reverse the onus and the court considers these, and generally speaking says it is violating this Charter of Rights.
The Canadian Superior Court has consistently ruled that the reverse onus clauses are a contravention of that fundamental right, the presumption of innocence. Dickson CJ explained the reasons the presumption against the use of reverse onus provisions. I quote from R v Oakes 1986, 1FCR 103:
- The presumption of innocence protects the fundamental liberty of human dignity, of any and every person
accused by the state of criminal conduct. An individual charged with a criminal offence faces grave social
and personal consequences, including potential loss of physical liberty, subjection to social stigma and
ostracism from the community, as well as other social, psychological and economic harms.
In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until
the state proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential
in a society committed to fairness and social justice. The presumption of innocence confirms our faith in
mankind. It reflects our belief that individuals are decent and law abiding members of their community
until proven otherwise.
The Chief Justice concluded - from a lawyer’s perspective, this is powerful stuff and I want honourable members to listen carefully to this:
- In general, one must I think conclude that a provision which requires an accused to disprove the existence
of a presumed fact …
Precisely what we have here.
- which is an important element of the offence in question …
Precisely what we have here.
- … violates the presumption of innocence. If an accused bears this burden, it will be possible for a conviction
to occur despite the existence of a reasonable doubt.
In other words, they are charged. They run the gauntlet, if they are caught, at a trial or hearing. They live with the stigma until they get in the witness box and say on oath the reasons why they did not have a reasonable suspicion. An example might be that I am sure there are honourable members with children who are of an age were they might be surfing the Internet, and assuming for this hypothetical that one of the children of an honourable member in this Chamber downloads an image which is caught within the scope of this legislation. There could be brothers and sisters in that house, there is a mother and father, and there might be a couple of relatives. A father loves his son and is doing the right thing. He thinks he is instilling the right values, but his kid has done something stupid. The police track that clearly there has been a download. The computer is seized and every person in that household, until they discharge the onus that they did not have a reasonable suspicion that that material was there, will be charged.
Practically speaking, a father or mother do not necessarily go to the police and say: ‘That is his room, that is his computer’. Generally, they get told by their lawyers, and generally they say: ‘I do not want to be involved here; I do not want to put my son in it, but I am not going to protect him if he has done the wrong thing’. That is, they exercise their right to silence. Unfortunately, under this current regime, that person will be charged, the whole family is charged - dad is charged, the son is charged, mum is charged - it goes to court, and then they are given the opportunity to demonstrate they did not know about it.
Mind you, the media have mysteriously found out and happen to be there when the police are walking out with a computer, it is on the front page, and you are in the position where your public image and your reputation amongst the wider community is damaged.
I am not just playing hypotheticals. I cited that example to drive it home to members that I am being serious about this. Here are some real examples. I have an article from the police in Ontario and what has happened is that because of the wireless connection, which the age of computers currently enjoy, it is possible for people to drive around in a vehicle and download or access this type of offensive material through someone else’s computer. The people who are home have no idea that this is occurring. The police arrested a fellow in Ontario who was naked from the waist down, sitting outside a family home, looking at this type of material. These people are seemingly sophisticated, they are intelligent, they had marked which houses to park in front of to download this type of material. The owners of this computer had absolutely no idea this was occurring - absolutely no idea. Innocent people were charged and put through the horrific ordeal of having police raid their home before the police realised that people were parking out the front of their home and downloading this material. This is a real example that occurred in Canada.
This legislation really puts innocent people in the Northern Territory at risk of being caught by the same sort of conduct. The article is entitled Roving Hackers, and I have misplaced it, but it is about predators driving about in their vehicles using wireless networks. It is a simple case of the law not keeping up with technology.
Another incident occurred in New York and was reported in the New York Times on 7 November 2003: several hundred unsuspecting Internet users around the world, America and New York, recently had their computers hijacked by computer hackers. Effectively, a computer using a high speed connection is hijacked and the user would not be aware that the violation has occurred unless they are technologically fairly sophisticated. In a nutshell, an independent computer researcher came to the conclusion that most of the material came from Russia and if you are a receiver of spam or any unsolicited electronic mail, then you are someone who is capable of being caught by this legislation; that is, having the material on your computer without you even having any idea that it is there.
I am not going to whine and be critical without also suggesting some potential solutions. I have only spent a day looking at this and the government, with all its resources, you would think, would have better tools in the toolbox than this fairly clumsy legislation.
One of the examples is taken straight from the United States. They have made it an offence to use an innocent domain name. In other words, it is not just a matter of doing a search and finding ‘kiddyporn.com.whatever’. They made it a specific offence to have an innocent domain name and, that way, catching those people who are propagating material at the very basic level.
Another idea was in the paper yesterday. The new political party, the Family First Party, during the course of being interviewed in the Australian Financial Review on Tuesday, 12 October, were asked to outline some of the fundamental values which they stand for, some of which I have a fair bit of sympathy for, but one of them is an interesting suggestion, and would make sense at first blush. I will read here from an article re technology: ‘Family First policy of forcing Internet service providers to filter out pornography’. There is an argument that it is going to be expensive, but ultimately you have the Internet service providers, ISPs, having filters on them, legislation passed making it an offence for the stuff even to come through that. That is the nexus; that is the portal on which the stuff enters and then it is distributed to these people, to the people who, potentially, could be caught by this legislation. It is an idea worth considering. I accept the criticism from the technology industry that that may be expensive. To abandon that form of censorship at a basic level as a possible solution at this early stage is probably an error.
There is another possibility which would certainly create a procedural safeguard. There could be an amendment brought to this bill, or incorporated into the Criminal Code, which effectively prevents a person’s name being published until they are at least charged, and some were even saying, until they are even convicted of this type of offence; but at least until they are charged. The matter should be suppressed until the prosecution made an application to publish that person’s name or until they are either charged or convicted. You will not have the position of people like Bob Collins who have been, in my view, fairly badly served so far by the criminal justice system, if some of the safeguards I talked about existed in the current legislation.
I am mindful of the time so I will paraphrase. Section 125B(5): whilst a similar provision of clause exists in the current legislation, there are some important changes which are about to occur. This is the provision which effectively says, and I am really going to go through this by way of completeness, it is another procedural evidential provision. It says that in proceedings for an offence against this section:
- … a certificate issued under section 87 of the Commonwealth Act …
… stating that the film, publication or computer game concerned …
- … describes or depicts, in a way that is likely to cause offence to a reasonable adult … who is a child or
who looks like a child is admissible in any court of law and is prima facie evidence that the film,
publication or computer game is child abuse material.
It is important bit is that the certificate is admissible in court, in a court of law, and is prima facie evidence that the film, publication or computer game is child abuse material. So we have a Commonwealth public servant who makes this determination.
It is worth raising some practical issues here. The job should be left solely to the commonsense discretion of the magistrate. The current Attorney-General should be defending the judiciary, not undermining their power to make decisions. The current Attorney-General has a different role to the other ministers. He has a role which is slightly detached and more independent. His role is not solely to bring in legislation for the purposes of persuading a media person or a community that we are tough on this particular issue. He has a genuine role to make sure that good legislation is introduced and properly debated in this House.
This legislation is not a legitimate attempt to deal with the problem. It is aimed at the press; it is an attempt by this government to get some free publicity. It most certainly is a very lame attempt to deal with a real and serious issue. The Martin Labor government is abusing the trust which Northern Territory people placed in them at the last election. It is simply an attempt by the Martin Labor government to be seen to be doing something, rather than pragmatically dealing with this very serious issue. The increase in the basic penalties, arguably, is the only positive aspect to this legislation and, ultimately, the only reason why I will support the bill.
To the press, I have a challenge for those who are listening: do not be conned by Labor Party minders about this bill. Give your readers and listeners more credit. Territory people deserve more than this. Any reasonably-minded person will have concerns about some of the procedural provisions contained in this bill, the example being the reversal of onus of proof – that is the classic. The criminal law of the Northern Territory not only metes out punishment to perpetrators, but also protects us all from the excesses of the power of the state. The current Attorney-General of the Northern Territory is not discharging his primary duty of ensuring only well-considered and thoughtful bills become law in the Northern Territory. Instead, he has become a captive of political opportunism. It is no wonder that most sensible people have little or no respect for politicians or the institution of parliament.
Mr WOOD (Nelson): Madam Speaker, I thank the member for Goyder for his contribution. I am no lawyer but he raised a number of serious concerns. I have some concerns about why this legislation has been rushed through. It is not that we do not have legislation already existing. However, we do have a lot of media attention regarding the large number of arrests throughout Australia in regard to child pornography. The question is whether that, in itself, is a good enough reason to rush legislation through.
The member for Goyder has raised a number of issues which I could not have explained or understood as well as he has explained to this House. It would concern me that, if there are serious issues - and I am going to raise a couple of issues from a non-lawyer’s point of view - that need more debate, I ask that this legislation does not get rushed through. The legislation can come back in the late November/December sittings, and we do have legislation existing.
In the second reading speech, the minister said that there has been some requirements of urgency because of the large amount of publicity and the large number of arrests that have occurred. However, I find it difficult to believe that this legislation is changing a lot, except bringing in a new a definition, increasing penalties, and adding in an extra definition about torture and other matters. I would not like to see legislation delayed which might, obviously, put people at risk. However, I would have thought that our present legislation would still have plenty of room to move if such things occurred. Be that as it may, I would like to make some general comments, and then raise some issues where I have a concern.
Pornography is part of our society, that many would say denigrates women, especially, but also denigrates men. It is commonly called non-violent erotica by the pornography industry as a means of selling its products. They regard it as nothing more than adult entertainment but, the fact is, pornography is about sex shown as graphically as possible in as many ways as possible, and repeated as many times as possible. The only difference between the study on the sex life of the cow and pornography is that one is done for scientific purposes, while pornography is meant to arouse passions and, in the process, make lots of money for the manufacturer.
Some may argue that there is nothing wrong with pornography when it relates to adults, something I believe, at the very least, is arguable. However, this bill is about child pornography, a subject which is not arguable. It is a blight on our society and, as the recent arrests show, is not an isolated or rare matter.
I welcome the broadening of the legislation and the increased penalties that are included in this bill, but I have concerns about a couple of matters. First, I would have preferred to have seen the use of the term ‘child pornography’ left in the definitions. If that could not cover everything written in section 4(b) - and section 4(b) covers matters of engaging in sexual activity in a sexually offensive or demeaning context, or being subjected to torture, cruelty and abuse - why could we have not have added it to the term, ‘child abuse material’ so that when you read section 4(b), the definition would have been, ‘child pornography and child abuse material’?
The word ‘pornography’, and this is the reason I am putting that forward, sends out a message to the general public about a matter which covers, as I said before, sexual activity in very graphic detail. When we refer to child pornography, the public immediately recognises this for what it is: graphic sexual activity involving children. It is regarded as a very serious offence and one punishable under the full weight of the law. By removing that term and replacing it with ‘child abuse material’ I feel there is a downgrading of the seriousness of what is being referred to in the eyes of the public. ‘Child abuse material’ is a nice clinical or governmental term but it certainly does not convey, unless you read the definitions in the bill, what is being portrayed. By adding the words ‘child pornography’ to the words ‘child abuse material’, the problem can be solved.
The other problem I have is that late last year we passed changes to the age of consent which meant that it was legal for two consenting people over the age of consent to have sexual intercourse. However, this bill says it is an offence to possess, distribute, produce, sell, or offer child abuse material, and you can be charged under section 125E where it says that a person who uses, offers or procures a person who is a child for a pornographic performance is also guilty of a crime. Under this law, a child is someone under 18 years. We also describe ‘child abuse material’ as material which depicts sexual activity in a sexually offensive or demeaning way and pornographic or abusive performance, meaning any performance by a person engaged in sexual activity, in a sexually offensive or demeaning way.
Minister, there seems to be a problem here. Your government, which lowered the age of consent last year to 16 years, is saying that it is all right to have consensual sexual intercourse at 16, but if you photograph, video, e-mail via your mobile phone, draw, or in any other way depict that sexual act, and even if you only keep for yourselves the video or photograph, you are guilty of a crime under section 125B and 125E. It seems to me that you can either raise the age of consent to 18 to be consistent with the age of consent, or you can lower the age definition of a child to 16 so that it is consistent with the age of consent. I would not like to see that as an amendment because such a change would, I believe, require community input and I, for one, would not be happy about lowering the age of a child to 16.
However, there is a problem that seems very strange and could put young people in gaol for doing something that if you are over 18 would not be an offence under this act. It seems that you can have sex and record it if you are over 18, but if you are 16 and you record it, you are committing an offence. I do not know whether I am seeing something in the act that is not there, but it certainly occurs to me that there is a real problem here. How many people have mobile phones that can take photographs today, or even a small amount of video? I would say it would be not uncommon for someone to stick the video or the mobile phone on the dressing table and film an act of sexual activity. Under this bill, because they are not 18 and over, they would be committing an offence, even though the government says they can be allowed to have consensual sexual intercourse because they are 16. Unless I am convinced that I am wrong on that issue, I certainly would have problems supporting the bill at the moment.
The other issue that I am concerned about - and the member for Goyder spoke about it far more eloquently than I could - is certainly an issue that would be of concern for many people. If someone borrowed my laptop and said they wanted to do some work on it and downloaded some child pornography through a chat room …
Mr Maley: Or they bought a computer at an auction and it is already be there.
Mr WOOD: Yes. … what is the guarantee that I am not going to be charged?
Mr Maley: You will be charged.
Mr WOOD: According to the member for Goyder, I will be charged. I have to show that I had nothing to do with that computer.
Mr Maley: That is right. I will have to run a trial for you.
Mr WOOD: That is certainly going to be an embarrassing time for me, I can tell you, or anyone else in our position that that could happen to. I know the act says:
- … unless it is shown that the person then neither knew nor had reason to suspect that the child abuse material
was in or on that place.
It appears as though it is going to be your word against mine to some extent.
I have some concern about that, even though I realise, and I imagine the member for Goyder does, we are dealing with a very serious issue and we need to clamp down on this sort of material. The end does not always justify the means. Good legislation will not be good legislation if it entraps people who are innocent. It is an area that I have some concern about because it could well and truly trap the innocent unless there is either some changes to it or someone can show me that there are some guarantees that innocent people are protected.
Whilst I understand what the government is proposing, and I appreciate the briefing, Attorney-General, and I thank you for that, I did mention some of these things in the briefing, but I think I should raise them in public as well.
Rather than passing a bill that gives rise to these important concerns, we could have waited a bit longer. We have had bills dealing with this issue for many years, and we have decided in the last week or so that because of a particular matter that has occurred, we should tighten up the penalties and widen the definitions, but that does not necessarily mean it is good to rush it through.
It would be far better to wait a little longer and ensure that the legislation we pass does not have to come back for amendments later on, and that we introduce legislation in which people can have faith, that will do the job it is required to do, that is catch the people who are dealing in this sort of pornography, but at the same time making sure the innocent are not swept up in what we are trying to do.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I thank members for their constructive comments to this debate. I certainly understand the concern that it does cause members when we take legislation through on urgency. It does give you less time to have a look at the provisions.
I can say by way of some reassurance that development of this legislation by me and the agency did not start at the time of the current police operations. They are coincidental to presenting this bill in the House. We actually started work on this some six months ago, or even more, as a result of discussions in the Standing Committee of Attorneys-General. It was recognised in that national forum that this area of offending has changed in character quite significantly and, therefore, legislation dealing with it also needed to be updated.
What are we dealing with; what are the police going around now looking for; what is the pattern of this offending? That is what this legislation has to deal with. It is not a case of someone simply downloading this sort of material by accident from the Internet ...
Mr Maley: But the point is it could be. It is caught.
Dr TOYNE: No, the pattern that the police are looking for, and what we are trying to respond to through this legislation, actually in terms of acquiring this material, mostly it is bought off the Internet. It is acquired by buying it. In what the police would take as being strong evidence to progress to charging a person, they would be looking for evidence that there had been some purchase, or the use of a credit card or the phone calls to a particular distributor …
Mr Maley: You do not say that here. You do not say any material purchase.
Dr TOYNE: Let me make my comments and we can all talk about this in committee if you wish. In the acquisition of this material, it is a far more conscious process than simply surfing the Internet and suddenly you come across this site and down she comes. When the police are investigating the way in which materials comes to be on a particular electronic record, they will be looking at the hard drive evidence. They will be looking at when material came in, and where it has come from, what other transactions have occurred electronically through the e-mail record of that particular individual or computer. There has to be a body of evidence there. It is not just a case of finding the material and then that is solely the evidence that would then be taken on to support a charge and subsequent prosecution in court. This is the advice we received in terms of the type of evidence that the police would be trying to adduce to support the charging.
In regard to the actual production of this material, it requires quite specific capacity to do that. First of all, it requires an exploited child, which is an obvious feature of it, and there needs to be some evidence that a person had procured children for this purpose. There would also be, almost certainly, electronic production-type software and, potentially, hardware that would be supporting the fact that that activity was going on. There is a body of evidence beyond just simply the possession or existence of the child abuse material ...
Mr Maley: Your legislation says a person who possesses.
Dr TOYNE: I really want your forbearance because I only have 20 minutes to give you responses to quite a large number of matters.
Let us have a look at some of the issues now specifically that you have raised about this matter. What about people who come across this child porn material by accident on the Internet. Will they be caught by the legislation? The police do advise that the analysis of computer hard drives can indicate whether a person came across some material while surfing on the Net. In these cases, the data is then stored in their computer as a temporary file. Analysis of the hard drive can show whether the person subsequently saved that material to their hard drive or to a CD. In cases where the evidence only shows material is stored in a temporary file, this would be consistent with the assertion of the accused that they come across it by accident and were not trying to acquire the material permanently. However, analysis of the hard drive can also show whether the person was repeatedly accessing this type of material and, in this case, it might be inconsistent with the accused claiming innocence of a deliberate attempt to acquire this material.
In terms of the onus of proof, with the deeming provision within the bill, there is no derogation of the presumption of innocence in the bill. Rather, there is a requirement, where a particular item is found in a place a person has control over, that that person demonstrate their level of knowledge about that material. It is not true to say that a conviction will follow, despite reasonable doubt. The prosecution must still prove the case on a criminal standard, and I will give you a bit more detail of that. The proposed section 125B(3) requires proof that the child abuse material was, at the relevant time, in or on a place where the person accused of possession of that material was the occupier or concerned with the management and control of the place. Once that is satisfied, then it will be evidence of possession of such material unless it is shown the person neither knew, nor had reason to suspect, the child abuse material was in or on that place. That is not a new concept in law, as you pointed out. We used it in our drug house legislation as a deeming provision, and other jurisdictions have adopted, on a limited scale, those types of arrangements.
The prosecution is still required to produce their evidence and prove their case beyond reasonable doubt. There is no erosion of that requirement that the prosecution prepare a proper case and prosecute the matter in the normal manner. However, there is, by this law - and I take the view that this stance is supported by the broader community - a requirement that a person found to be in possession show that they have no knowledge of the material.
In order to demonstrate the requisite lack of knowledge, they will have to demonstrate, on the balance of probabilities - that is, to the requisite civil standard - that they had no knowledge of the material or had any reason to know that it was in or on the premises. That might give you some more detail of how it would actually be played out in a hearing.
This bill has not come out of a vacuum. In fact, the Commonwealth enacted similar provisions in their Commonwealth legislation earlier. The legislation before us today is both commentary to and consistent with that Commonwealth legislation. Commonwealth legislation passed in August expressly prohibits the use of telecommunication devices to carry child abuse material. The Territory legislation is about possession and manufacture of such material, as well as distribution. Territory police will have the ability to charge offenders, either under Commonwealth or Territory legislation, or both, as the situation demands. The Territory legislation has picked up on the Commonwealth use of the terminology concerning data.
I will quickly refer to the existing legislation which the member for Nelson felt was covering the situation at the moment. It absolutely is not! At the moment, in our Criminal Code, we have section 125B, ‘Possession of child pornography and certain indecent articles’, where it refers to child pornography or an article that is in an indecent article by virtue of section 125B(6) and so on, which gives the definition of what an indecent article is. That carries two years imprisonment or a $20 000 fine. A person who sells, offers, or advertises for distribution those types of materials - again, that is a 10 year sentence for distribution maximum, and a maximum fine of $100 000.
Those definitions in the existing legislation simply do not cover the type of activities that we are now seeing based on the Internet. Our X-rated shops are really rapidly becoming a thing of the past regarding adult pornographic or restricted material - let us call it. The main game now around the world, by far, is the global Internet-based distribution of this type of material. It has progressed well beyond seeing sexual acts performed by adults or children. We are talking about material that actually demeans, tortures, or sexually abuses kids on a global scale. The actual production of these materials could be happening in any country around the world. In fact, the servers that underpin the distribution network that is subject to the current police operation nationally are in Russia. You can run these networks from any part within the global Internet. You can produce material and feed it into that network in any part of the world. We have a very sophisticated and totally new pattern to deal with now, and that is the reason why we have moved from the older definitions of ‘child pornography’ to ‘child abuse material’ to reflect that we have a much wider abusing of kids and wider range of material that is being distributed and used.
Given that there is a strong body of research that says that the accumulation of these types of materials by an individual has a strong connection to the potential to subsequently abuse children as a result of that association and to prepare children for abuse, we have a serious connection there that we have to try and break.
I hope I have made a case that we do need to reform our current Criminal Code. It is totally inadequate to deal with these modern offences. We had a case in our own Magistrates Court where the magistrate had to throw out a case because they could not prove the knowledge of the material that was found at that person’s premises - 10 000 images I think of this type. However, because the person claimed that they did not know the stuff was there, there was nothing under the current provisions that would allow the prosecution to succeed. We are also very mindful that we want to see a better rate of success in prosecuting these types of offenders.
I do not want to see a situation continue in the Territory where the majority of offenders simply walk out of court because of the inability to make that connection between the existence of the materials and their knowledge of it. That is the reason behind the deeming provision.
In terms of who we have talked to about this, we certainly made sure criminal lawyers and the Law Society had a copy of the bill and a chance to respond to it. They did not ...
Mr Maley: They did not respond to it?
Dr TOYNE: They did not respond for whatever reason; I do not know.
The member for Goyder raised the matter of accused people having their names put around the community. I totally agree that it is incredibly unprofessional practice by the police to be rushing off to the NT News and passing a bit of info to them. I do not think we can do much about that through legislation. You can certainly do something through the police commissioner and the Police Standing Orders and the professional standard of our police in maintaining the integrity of information that is coming to them in an investigation. I would not say that is a particular feature of the Territory Police Force as distinct from police forces around the world. It is simply an ongoing operational and professional issue that they can be trusted to keep the confidentiality of their investigations.
The problem with saying all right, in this case let us make a succinct provision within the act to say that you are not allowed to give out those names - well, if you did it for this offence, why not for sexual abuse of kids, or for rapes on women, or quite a number of things? It is difficult to draw a fence line around an offence category. It is more about the professionalism of our police and that is something that definitely needs looking at. I absolutely share your concerns about bandying people’s names around as accused of these sorts of crimes. It is a highly emotive area, and the public always responds very strongly to them.
The reasons for urgency is we took advice of the actual time which the offending would be deemed to have occurred in terms of possession and distribution of such material. The police operations are in progress at the moment and they are continuing. The offensive possession, on our advice, commences when the material is downloaded and accessed by the alleged offender and continues on right through to the point of discovery by the police. The offence of distribution is evidenced potentially by the hard drive evidence as to when that material was passed onto another recipient. There is a possibility that as the investigations continue that it will overlap with these new offences becoming active in the Northern Territory. We would like to have them there as soon as possible. Even if it does not impact on the current police operation, it is very obvious that there is a wide problem and we would like to have the laws in place as soon as possible, hence our request for urgency.
I have mentioned the use of child abuse material. The issue raised by the member for Nelson about the use of the age of 18 rather than 16 - there are many age thresholds used throughout our statutes. We are allowed to drive at a different age than having sex to being eligible to vote. It is not unusual for thresholds to differ according to statute. In this case, there is a strong need to align the 18-year-old threshold to our child protection provisions because in many cases, if there are children being abused as part of the production of this sort of material, we want it to be aligned with provisions in the Community Welfare Act and Juvenile Justice Act so we have the ability to align responses under that legislation to the discovery of these types of offences.
The other reason we have argued for a higher age threshold is that we believe that the level of exploitation of children has an additional level over and above sexual assault on an individual child. You are not only subjecting children and youths to abuse in many dreadful forms; you are then demeaning them further by distributing that material in a global network to other people to further encourage abuse of children.
In the law, there are always issues about the relative seriousness of offences. We believe this is a more serious level of offending than sexual assaults on kids because you have another level of commercial and public exploitation of what has happened to the child as well as the offence.
Motion agreed to; bill read a second time.
In committee:
Bill, by leave, taken as a whole.
Mr MALEY: Madam Deputy Chair, just a procedural matter, because it is a very short bill, I propose to ask a number of general questions, then draw the Attorney-General into specific provisions during the course of debate, if that is suitable.
Dr TOYNE: Yes.
Mr MALEY: Minister, you said in response to some of the points I raised that the type of offending that this legislation is aimed at - and remembering there is a huge spectrum of offences - is repeat offending, and the irregular accessing of data contained on a hard drive. I accept that is serious conduct. That conduct is precisely what legislation should be aiming at. However, you would have to agree that a literal and simple reading of the legislation says ‘… a person who possesses’ and there is a comma, so they are disjunctive. Therefore, a person can possess one photograph on one computer in their house and that would still technically be caught by the net created by this legislation. Isn’t that the case?
Dr TOYNE: It would be almost unthinkable that that person would be charged by police if that is all the evidence they had. I have made the point that the police will move to charging a person and triggering a prosecution on a body of evidence. If they went to the DPP and said: ‘We have found a dirty photo of kids on this person’s computer’, and that is it. I know what the DPP would probably say to that.
Mr MALEY: You have just used the phrase ‘a body of evidence’ required, and there is nothing wrong with that. You have not used that phrase in this legislation. You are saying that the Northern Territory community has to trust the exercise of this prosecutorial discretion to prosecute or not prosecute, that is, the police make that decision because, technically speaking, you are still caught by this legislation. You are confirming that ‘yes, that would technically be covered’ but you are saying the Northern Territory people now have to rely upon the arbitrary and unable to be reviewed decisions, prosecutorial discretion, to prosecute of not to prosecute, you are saying that is the only safeguard that we have. Is that what you are saying?
Dr TOYNE: Right across our laws, there is always going to be a hypothetical case where you say, if all of this sort of stuff led to a very extreme position, maybe that might happen to someone. Also on the advice that I have just received on this, another issue here is that one photograph might be enough if, say, it was a picture of a child having its head severed from its body. Someone may feel that they want something as appalling as that to have in their personal files. Really, the prosecution of cases is not ad hoc, it basically occurs through criteria. The charging by police of different alleged offenders is also according to form criteria. It would be highly unlikely that a case based on relatively trivial evidence would move to charge and then to prosecution; highly unlikely.
Ms CARNEY: You said, in relation to the Bob Collins case, that there was a link between the media and the police relating to …
Dr TOYNE: No, I did not say that, the member for Goyder did.
Ms CARNEY: Sorry?
Dr TOYNE: The member for Goyder said that. I did not specifically say that. I certainly said that leaking information by police to the media …
Mr Maley: Madam Chair, I …
Madam DEPUTY CHAIR: Excuse me, member for Goyder, allow the minister to respond.
Mr MALEY: Madam Deputy Chair, as a point of order, I have been misquoted. I did not assert positively there was a leak. I said, in a nutshell, the objective circumstances made it fairly obvious that there was a leak. I do not have any direct evidence of a leak, and I will read out what I said: ‘… somehow the NT News was informed’. I have not asserted it was by the police. I said: ‘I suspect by the police, though I note the official story from the police was that the press were merely driving by and perchance were in an ideal position to photograph police seizing the computer’. So, at no time have I have made the positive assertion, the direct assertion of fact, that the police leaked. They are the objective facts that we know and I ask the Attorney-General to withdraw that assertion.
Dr TOYNE: Madam Deputy Chair, I was not trying to make an issue of it at all. I am simply saying that I certainly did not make the connection with the Bob Collins case. What I was saying is that it is an issue of professionalism amongst the police that details of investigations that are active, or charges that may or may not be laid against individuals, should not be shared with the media and the general public. That is simply a professional issue for our police force. The person who is most responsible for maintaining those professional standards is the Police Commissioner. That is the point we are both trying to make. I certainly was not trying to verbal you. The point I wanted to make about that is that it is a matter of operations and a matter of professional standards, a matter of the protocols that the commissioner manages to put into place in the police force.
Mr MALEY: Can you confirm whether it was considered at any time to have a specific offence incorporated into this provision, section 125B, or some sort of subsection, making it an offence for a law enforcement agency or any person to deliberately leak the name of a person under investigation?
By way of background, the Commonwealth have several pieces of legislation which have precisely those type of provisions. I have to be careful what I say, but I know the Anti-Corruption Commission have been conducting hearings up here. That is not in the press. There is a specific provision which prevents anybody - and the Bob Collins case is a classic example - disclosing that name. You talked about offences difficult to create for this piece of legislation by itself, but was it ever considered?
Second, can you articulate again why you say, in regard to the very damaging public stigma which attaches to these types of allegations - we heard the allegation across the Chamber yesterday about somebody - these damaging allegations are not the subject of tighter controls to protect people who are genuinely caught up innocently in the net?
Dr TOYNE: There are two issues here. One is the issue before us, which are the specific offences we are trying to put on to our body of law regarding these …
Mr Maley: No problem with that.
Dr TOYNE: Okay. The second issue is the one you have raised of the rights or the interests of the accused. I believe if that was to be examined - and it may well be something we can look at - it would not be under this bill or the Criminal Code, it would be under the Police Administration Act, and whether you wanted to legislate to actually make …
Mr Maley: Did you consider that process during the course of drafting this over six months?
Dr TOYNE: Not as part of the development of this bill. What I am flagging to you is that we can go back and have a look at the existing provisions. I am sure the Police minister would be happy to have a look at that for us. If there is not sufficient imposition of that condition on police going about their duty, perhaps we can look at it. Frankly, I would be surprised if there was not somewhere in the police regulations or the legislation, the need to maintain professional confidentiality about the details of cases. I certainly know that, in any dealings I have had with the police, it is of paramount importance in their minds. I am sure, from one sphere or another, there is that expectation within our police force. Whether it is enshrined in the right way, we can have a look at. I am sure the minister will.
Mr ELFERINK: Madam Deputy Chair, I very quickly make a few observations regarding this particular material. The concentration of the discussion so far has been on computer hard drives and tracing accesses through, I imagine, cookies and such things in relation to how often web sites have been accessed.
The first time I came across child pornography was when I was a policeman. At that stage, it was only an offence to sell and distribute, but it was not an offence to possess. We went through the ignominious process of having to return these particular items to a dreadful fellow by the name of Paul Conrad, if my memory serves me correctly; it is a while ago. As a consequence of some of the reports I put in - and I imagine other reports through the police force - the Criminal Code was changed to what it is now. Subsequent to that, I ran into some other pornography using kids whom, I would guess, were about 13 or 14. It was all homosexual stuff and I went off to the pathologist and said: ‘Dear Mr Pathologist, please give me a statutory declaration which says these kids are about the age of 13 or 14’. The pathologist was incapable of saying absolutely and clearly, and beyond reasonable doubt, basically, that these kids were of that age; they could have just been a young looking adult.
Therefore, we had to go through the ignominious process of returning that material to the particular owner – very frustrating, I have to say.
Dr Toyne: Score: zero out of two.
Mr ELFERINK: Yes, zero out of two. Therefore, I have great sympathy for this legislation. I am concerned, because of reasons articulated very well by the member for Goyder - and I know you are mindful of them minister - it is not only computer hard drives that this stuff exists on. A simple compact disk can contain 10 000 images quite comfortably. In fact, to illustrate the point, I have just placed a compact disk on the Speaker’s desk and, essentially, if she were to come back here, into her possession.
The transportability of this sort of stuff, placing her in possession like that, she has to be able to explain how could that compact disk, if it had this particular material on it. I presume it does not, it belongs to the Compaq company - geez, I hope it does - but if this material is now found in her possession, so she sits down on a chair, in come the police with a warrant because they were acting on information that they had anonymously received - that is, I telephoned them anonymously - and they grab the compact disk off the desk in front of her while she is sitting there, and in 20 minutes time she has to explain how she ended up with possession.
One would hope that there is a whole bunch of external factors that work in these instances, and that the evidence surrounding the situation would be indicative of the balance of probabilities argument, where she can say, ‘I do not know where it came from, I have never seen it before’. However, you can understand that the transportability of this sort of material is very high. We had this debate some time ago, in fact, prior to the change of government, in relation to DNA evidence, when people were worried about DNA turning up on cigarette butts at crime scenes and such things. DNA can be introduced into a crime scene very effectively as can this material. I urge the courts, and this is more by way of observation than question for you, minister, to be very, very mindful of this.
As tempting as it is - and believe me, I know; I have seen this material and had to return it to the filth who peddle this stuff. I do urge the courts for the sake of protecting the innocent - I know that this bill seeks to protect the innocent in one way; but for the sake of protecting the innocent in another way - to show extreme restraint in the way that they deal with this material.
Once you are identified as a person in possession of this material and it is publicly known, in spite of the fact that you may not even have been charged with it, well, we have seen the death toll so far. None of those people, that I was aware of, had been charged, and certainly not convicted. It probably will not be the case but we will never know because there will never be their evidence available, so they will never be convicted; but I would hate to find that in this sort of swoop that the lynch mob mentality does not exist, and that the due processes of law are truly respected and regarded, and that the protections that you say are in this bill are actually adhered to by the courts.
If something like a transportable CD, or the compact disk that I just placed on the Speaker’s desk, finds itself in the wrong place by somebody who quite criminally is seeking to pervert the course of justice, but does it anyhow, then reputations are destroyed forever - absolutely forever. There is no coming back from even the allegation. This sort of allegation in the public domain is a lot like the old Stalinist allegation. You merely had to be denounced and off to the Gulag you went, and this is the social Gulag that these people go to.
I urge great restraint by both the authorities and courts in dealing with this stuff because the happy medium, or the unhappy medium in this case, that needs to be found, has to be very delicately balanced. I urge the courts which are going to end up using this piece of legislation to understand that and I am sure they will; but not allow mob rule to infect their judgment.
Dr TOYNE: Madam Deputy Chair, I certainly take the advice to heart that the member for Macdonnell has just given. In framing this legislation we have tried to balance, first of all, addressing the offence in its own terms, as a modern offence different in character to what is in our Criminal Code right now, which is totally inadequate in terms of the description of the activities that it is presenting. I guess the balance point we are trying to find is to get a better rate of conviction addressing these activities, because we are hearing widely around the community that people want this dealt with. I do not think anyone is telling us to back off, do not worry, and that they are not really nasty people after all. We are always aware that you do not want take innocent people into attempts to catch those who are genuinely committed to this type of terrible activities.
I can only say that with the deeming provision, which is the key area that you are particularly worried about, I can give you an undertaking that we will closely monitor how this is used both by the police in terms of decisions on whether to charge an alleged offender, and by the courts when they hear and decide the evidence as to whether that level of proof on balance probability. As part of this search for balance, we have adopted a standard of proof that should give a person a fair chance.
The other thing to keep in mind is that there is a whole continuum of the strength of evidence that would potentially be involved in those matters. You could have a single item of evidence, like the example the member for Goyder cited, like a single photo. Yes, that may, in an extreme case, be enough to attract a charge. However, in most cases, if it is not of that extreme type that I hypothesised back to you, it would be most likely that the police would say that a single image is not going to be a strong enough case to proceed to charge.
At the other end of the spectrum is where there is overwhelming evidence not only in terms of images or objects that a person has, but a whole trail of how they have acquired it and to where they have distributed it. Anywhere in between, it is up to the police and the courts to judge where the matter lies on that continuum of evidence and there will be a point at which they decide not to charge and a point above which they will charge. I am sure the DPP will have a lot to say in that in finding that decision point.
In all honesty, they are matters you cannot enshrine because that is the professional judgment of people whom we pay a lot of money to make those sorts of judgments.
Mr MALEY: Minister, before I move to my last general question before we go to the specific provisions, if I am may put this on the record, with all due respect to you, you genuinely do not understand how this works. You genuinely do not grasp.
Mr Ah Kit: You are the expert at running away.
Mr MALEY: Well, okay. It is very interesting that a minister having even less grasp of fundamental procedure would chime in.
Madam DEPUTY CHAIR: Member for Goyder, withdraw the aspersions you cast on both ministers. We have had discussion in this House today about not personalising attacks on members. I am more than happy to be very liberal in the broad discussion on the merits or otherwise of this legislation, but you have just stepped beyond the bounds and made it personal. I ask you to withdraw.
Mr MALEY: Okay, I withdraw any offensive tone that I may have used. However, if I can just say this: clearly, from what you said then about the balance of probability and the fact that you have decided that was the appropriate level, and the way you articulated the reversal of onus, this subsection 3 demonstrates to any criminal lawyer that you clearly have no understanding as our Attorney-General of how this provision practically operates.
If you think even for a scintilla of a second that your monitoring of the exercise of prosecutorial discretion and whether the police are going to lay or not lay a charge and what effect this reversal of onus provision is going to have is worth anything apart from a few hollow words in parliament, you are absolutely kidding.
I tell you what is going to happen: a person exercises his right to silence. A person says: ‘I do not want to talk to the police on the advice of my lawyer’. A person then says: ‘I am not going to get involved in this because there is a member of my family or a friend that I do not want to put into trouble. I am just going to stay away’. The onus being reversed means that the very fact that this material is on a computer within the house that this person is one of many occupiers, or the very fact that he is involved in the management or control of the house, means that he can be charged. Now, without that reversal of roles, that person would not be able to be charged unless the police genuinely conducted an investigation and had the evidence which certainly pointed to them.
It is going to mean more work for criminal lawyers. I had a chat with a fellow at lunchtime who works every day in this field and, quite frankly, it might be good for some criminal lawyers, they will make more money because more people will be charged. However, at the end of the day, it will be bad for the community to have the type of provision which is contained in this legislation once again enshrined into statute. That is a reversal of onus.
However, the general question I have relates to this. The bill refers to a defence for a member or an officer of a law enforcement agency to have in their possession some of this material. It also refers at the very back, at 125F, ‘the court must be closed when the material, the subject of the offence, is displayed’. Are there any safeguards in here which would protect a defence lawyer obtaining a copy of this material so that he can look at it and make his own subjective assessment and then engage an expert? Are there any provisions in here which would enable a person, properly represented by a legal practitioner, to enable that legal practitioner to examine the material as an officer of the court, make an assessment, and even forward it to an independent expert? Are there any provisions or safeguards which allow that to occur?
Dr TOYNE: I will deal with your last general comment first. It is pretty interesting that your shadow came in here and said that you are supporting the bill, and now you are saying: ‘Oh, this is all hopeless and I do not know what I am talking about’. Well, you had better have a bit of a conference before you come in here so you can actually get a consistent message coming across to this side of the Chamber. At the moment, I am really wondering what the CLP stance is on this bill; whether you are actually supporting it or whether you are opposing it.
In terms of the appropriateness of having a defence lawyer take a copy of this type of material, or copies, as part of their involvement in these cases, I would say that it would be totally inappropriate for that to happen separate to the police and the court’s handling of that material. There may well be a need for the defence lawyer to be party to familiarise themselves with what is on those images, but taking that material away from the court or police possession, I do not think would be appropriate. We are trying to contain this stuff, not let it disseminate even further out into the community.
Mr ELFERINK: I have been thinking about it, and the mechanics of this are difficult. Five guys living in a house. It turns out that on the computer there is whole bunch of child pornography on the hard drive. The owner of the computer is clearly an individual, person A. That person then is the subject of an arrest. A warrant is executed on the premises. Person A sees his lawyer. Lawyer says: ‘You have a right to silence, use your right to silence’. Person A is then charged simply because it is his or her computer. Person A then finds himself going to court and maintaining their right to silence. It is one of the most fundamental rights of our legal system. If the prosecution brought, the prosecution must prove. Person A continues to maintain their right to silence.
Evidence is brought that the computer was indeed that person’s, and is delivered in front of the house. Four other people in the house had access to the computer. A reasonable doubt exists at that point as to the person’s guilt or innocence. Person A continues to use their right to silence, so does the court record a conviction? That is the question. According to Dickson CJ, as outlined by the member for Goyder, where there are reasonable grounds - and this is the observation that Dickson CJ makes about this - there is a window of opportunity in that circumstance to record a conviction in spite of the existence of a reasonable doubt. That is the mechanics of it.
I believe the position that the member of Goyder and I am taking is that the courts must – must - allow themselves as much latitude as they think is reasonably necessary for the purposes of natural justice, or justice alone, so that such a circumstance is not allowed to develop. Once again, I urge the courts to be very careful with this stuff.
Mr MALEY: Madam Deputy Chair, it now is probably appropriate to go through the bill clause by clause.
Madam DEPUTY CHAIR: Member for Nelson, do you want to ask a question specific to a clause, or do you want a general question?
Mr WOOD: I want to go clause by clause, but I needed to check whether the minister was going to reply there, as he was getting advice.
Madam DEPUTY CHAIR: That was an urging of the courts, rather than the seeking of an answer.
Mr WOOD: I would like to ask questions about clause 4.
Madam DEPUTY CHAIR: Member for Goyder, which specific clauses do you want to - I am doing some housekeeping here.
Mr MALEY: Specifically, I have some questions regarding the definition of child abuse material, and then I have several questions regarding proposed new section 125B(3).
Mr WOOD: I also have questions regarding proposed new section 125B, especially subsection (1), and proposed new section 125E.
Madam DEPUTY CHAIR: We will now deal with clause 4.
Mr WOOD: I want to return to the issue I raised earlier regarding the use of the words ‘child abuse material’. I do not have a problem with using that term, but what I was trying to say was that if that was expanded to say ‘child pornography and child abuse material’ which, obviously, would cover (a), (b) and (c) of that section, for the normal person in the streets it retains a name that they can easily see relates to the very important issue of child pornography which, for many people, is quite repulsive.
By just using the words, ‘child abuse material’, we downgrade the seriousness of what we are trying to say. I believe if you added those two together, for the person in the street who sees or hears exactly what the government is trying to do, they would have a very quick understanding that we are dealing with offensive sexual activity, torture, cruelty and abuse. The term ‘child abuse material’, to some extent, has downgraded it in a way that does not reflect what the act is about as well as it should.
Dr TOYNE: I have notes on the relative use of those two terms to deal with the concerns of both of you. The term ‘child abuse material’, has been selected for two major reasons. The definition of ‘child abuse material’ covers material which depicts children in a sexual manner or context, and material that depicts children being subjected to torture, cruelty and abuse. The offence covers a broader range of material than would be ordinarily associated with the use of the word ‘pornography’.
On a practical level, the use of two labels, ‘child pornography’ and ‘child abuse material’ in the legislation would potentially create confusion, and lead to legislation which is more complex. There may well be material that depicts children in both a sexual manner and being subjected to cruelty. The use of the term ‘child abuse material’ means there can be no argument about which class the material falls into. Secondly, the term ‘child abuse material’ more accurately describes the material for what it is. It is material that depicts the abuse of children.
It is worth noting that recent amendments to the law in the United Kingdom regarding this type of offending have been criticised because they used the term ‘child pornography’. The use of the label ‘pornography’ does not accurately describe images that involve the systematic rape, abuse and torture of children. Child abuse is a term well recognised by the community as including sexual and physical abuse of children and is used in other areas such as in child protection, as I referred to earlier.
Just as a note, the Commonwealth legislation has two long definitions of both child abuse material and of child pornography material. Child abuse material in the Commonwealth legislation dwells upon torture, cruelty and physical abuse, whereas the pornographic material dwells upon sexual pose or sexual activity and also in the presence of those engaging in, for example, the depiction of a person under 18 in a room where two adults are engaging in sex. The Northern Territory bill will cover this because the definition, particularly paragraph (b) of the definition, ‘… depicts etc a child in sexual, offensive or demeaning context’.
Finally, the word ‘abuse’ in the term ‘child abuse material’ covers a range of behaviours that range from torture to cruelty to sexual depiction. It is simply that we considered ‘pornography’ was a narrower term. Abuse covers both pornography and these other elements that are increasingly coming into these terrible images that are being distributed.
Mr WOOD: I accept what you are saying, minister, but I would ask then, why could not ‘child pornography’ have stayed as representing (a) and (b) under the interpretation section, and ‘child abuse material’ referred to (c), so you would retain them. You broaden what you are trying to do if you retain the name. I suppose whilst we can argue about what you might say are technicalities, to me, I pick up something from the Australian Institute of Criminology and it talks about typology, a one line child pornography offending. It is a term that is used out there in the public. That is what I am saying.
To me, we are actually softening what is a serious offence by taking that word out of the system and that is really what I am arguing. It is a pity it was not left in there. If we had another issue regarding child abuse, why could that not be added and it is own interpretation be put in there separately?
Dr TOYNE: Madam Deputy Chair, I just simply say that the direction that the whole national reform is taking is to broaden the definition in response to the type of material that we are now seeing coming off the Internet. Child abuse means sexual abuse, physical abuse and psychological abuse, demeaning treatment of children; all of that is encompassed in the term child abuse and any material that depicts that is child abuse material. It actually is broadening the coverage of these offences.
Child pornography does not mean, for example, taking a video of a child being flayed alive by being whipped or something, which would be a physical torture - and believe me those sorts of images are involved in this trade. It is absolutely shocking and we want to capture it all in the net and make sure that no matter what type of abuse that child is being subjected to, it is captured by the definition.
We are very much in line with the Commonwealth legislation. We are in line with the overall directions that are being adopted by all the Attorneys-General in our national forum. Queensland and New South Wales have asked for our bill to model their bills. It is fairly rare that the Territory is actually leading national process, as the member for Araluen said. It is a bit unusual for us to be at the front of the pack rather than looking at what other jurisdictions have done.
We are in the pack to the extent that we are not stepping outside of the broad intent of the national forum. This is the direction that the national forum has agreed to take on these types of offences. I can only say that while child pornography is a very familiar term to the community and has that sort of advantage if it was to be used, so is child abuse. Child abuse is very well understood by our community and child abuse of any type gives us a very wide net to put around this material.
Mr MALEY: In fairness to you, minister, I see you have in front of you a copy of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act, a Commonwealth act, and you also have the Criminal Code. You are familiar with those, I assume?
If you look at the definition contained in the bill which was assented to in the Commonwealth Parliament on 31 August 2004, that is the bill amending the Criminal Code Act 1995, and you look at the current definition contained in Division 2, Offences Against Morality in the Northern Territory Criminal Code, there are a number of definitions and the reference to child pornography and child abuse material is contained in there. If you compare that with the definition contained in the current bill, it has the one global definition which is:
- Child abuse material means … a person who is a child or who appears to be a child ...
Then it has the disjunctive, being separate and standing by themselves:
- (a) engaging sexual activity;
Can you explain, first, what conduct is caught by this broader definition of child abuse material under the new bill when you compare it with the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act, No 2 of 2004, and here is a practical example: would it clearly cover an image of a person who is child-like in appearance but is a person in excess of 18 years of age? Yes, I see learned counsel nodding.
How is that broader than the model contained in the Commonwealth legislation, and how is it broader than the definition contained in the current Northern Territory legislation?
Dr TOYNE: The provisions in our bill and the provisions in the Commonwealth legislation cover exactly the same ground; ours does it better. The drafting is more succinct. The issue about the age of under 18 or appears to be under 18 actually deals with a problem in prosecuting people who are in possession of material that might have come from another country. The difficulty is to prove that the apparent victim of the abuse is under 18 years of age. The key comes back to this offence that we are trying to counter, and that is that if the intent of the material is to depict an act in a way that it looks like it is being perpetrated on a child – you might have a very small adult who engages in a sexual act, but is dressed as a child, or is depicted in some way as being immature or a non-adult - then that is enough to underwrite the charging and prosecution under our provision and under the Commonwealth one.
When you read the Commonwealth one, you can see that the intent in the key provisions are exactly the same. The Commonwealth one reads to me as being very verbose and a bit repetitive in the way it is putting forward the definition. We have simply tightened the definition and made it more succinct. It is exactly the same proposition.
There is another point I want to make. I have been informed also that the bill before us is actually removing a current defence that is possible, which is in section 125B, which says that if the person depicted was over the age of 16. That is now no longer available as a defence, if the clear intention was to depict the person, or present the victim as being someone under 18, that underwrites the charge.
Madam DEPUTY CHAIR: We will now deal with clause 5.
Mr WOOD: I come back to what I think is a fairly important point. I do not believe I received the answer that I was after in the first debate. Section 125B talks about possession of child abuse material, and it says: ‘A person who possesses child abuse material is guilty of a crime’. The bit that I cannot understand - and maybe I am not hearing things correctly here – is that a child is someone who is under 18. As I said before, if two 16-year-olds are having consensual sex, they are both children because they are both under 18. However, our law says that they can have sex and, if they film, video or photograph that, that would be defined here under child abuse material. Child abuse material is engaging in sexual activity. So, if they are in possession of child abuse material, which could be in the form of, as I said, of a photograph from a mobile phone, are they not, therefore, in the case of an individual, liable to imprisonment for 10 years?
Dr TOYNE: If two 16-year-olds or 17-year-olds engage in sexual acts and then create an image of that sexual act, yes, they are in breach of these provisions. Again, in the weighting of the evidence as to whether a charge is laid or whether it is prosecuted, would depend on what the police made of their motives. However, once such images come into existence, they can be traded, distributed and so on. We are talking about the need to, I guess, protect people in these age groups from exploitation. We certainly would want to be discouraging the production of such records of sexual contact, even though the actual act of sex is legal under our age of consent provisions. I guess what we are saying to young people is that if you want to record your own sex life, wait until you are 18.
Mr WOOD: But surely, this parliament has given people the right to have sex. Why would someone who is 16 who has been given the right to have sexual intercourse be – I hate to use the word - discriminated against purely on age. Two 18-year-olds can have sex and, I presume, e-mail it off to their mates. Sixteen-year-olds cannot e-mail it because that would be distribution. They cannot photograph it because that would be possessing. If they wanted to sell it to their mates for a bit of a lark, that would also be an offence.
I believe we have a problem there where we have told children – well, I call them children – that they are old enough to have sex, but they are not old enough to photograph it. It would be …
Mr Elferink: They can star in a porno film, but they just cannot flog it off.
Mr WOOD: Yes. For a 16-year-old to actually face imprisonment if they e-mail images off to some of their mates, there is a real gap in the law there.
Dr TOYNE: I would have to say that making a visual record of your sex life and then mailing it off to your mates is certainly not an activity that you would commend to any one person, because where is it going to go from there? You end up …
Mr Wood: I am not commending any of that. I am not commending it.
Dr TOYNE: Essentially, if in the absolute privacy of their own lives, two people choose to record this activity between them and it goes no where else, who is going to investigate it? There would be no weight of evidence there that the purpose of that recording is to start to distribute that material in the way that we are seeing in these offences. If the police cannot work that out - you have used the example, okay, they make a video or DVD, or whatever it is, and then they rocket it off to their mates. Well, that is going way beyond serving their own personal private purposes within that relationship. They are, basically, putting that out as a deliberate distribution. I do not think that is the same innocent activity as two young people recording their own sex life. I do not believe that they are compatible in what they are motivated to do.
Mr WOOD: I just want to follow the line here. If two 18-year-olds were having sex and photographed that and sent it off to someone - their mate - is there anything illegal about that?
Dr TOYNE: It depends entirely on how they are …
Mr WOOD: All right, there is an offence under the Commonwealth act for putting it through communications. Say they decided to get some photographs and send them around to their mates. They are just photographs they are going to put on the wall – bit of a lark. I am not promoting this, minister, but what I am saying in reality …
Dr Toyne: I was starting to worry, Gerry.
Mr WOOD: Well, minister, the reality is that people will do this. The reality is that, on one hand, an 18-year-old person who is allowed to have sex, can possess the material and might even want to sell it. I am not sure that that is going to be an offence to another 18-year-old. However, a person who is 16 years old, who this government has allowed now to have sexual intercourse legally if it is consensual - well, all of a sudden, you have differentiated between what the 18-year-old and the 16-year-old can do. On one hand, you are saying that one is a child for certain purposes and, on the other hand, you are saying that you they are not a child because we are classing 16 as a suitable age to have sexual intercourse. But then, we are penalising them now for doing what they do at 18. The law is very ambivalent here.
Mr ELFERINK: I am also going to voice my comments in relation to this, because I came into this House when we omnibused 60 amendments to 60 bills. I remember I was somewhat ridiculed, both publicly and otherwise, for having the audacity to suggest that we should raise the age of consent to the age of 18. During the whole debate, the member for Brennan made an excellent observation. The observation was basically this: according to the minister at that time in relation to that debate, you at 16 could star in a pornographic film, but you had to wait two years before you could rent it from a video shop.
Now we are amplifying that absurdity and the absurdity is amplified in this fashion: now at 16 you can conduct any sexual act consensually – with the exception of bestiality and any sort of sexual act that will eventuate in grievous harm. So we are talking about some of the most wretched sort of sexual acts you could possibly imagine – well, wretched depends on who you are. The minister says from a moral perspective we would not encourage young children to send photographs of their sexual acts off to their mates or anything else like that. We are quite comfortable with the fact that they may engage in sexual activity which may include bondage - even possibly bodily harm in a limited way – all sorts of difficult sexual acts. We are quite happy with that; that is what innocent sexual acts are. Morally, we do not have a problem with that as a government. What we do have a problem with, though, is if the average run-of-the-mill sexual act is recorded in a fashion, then the simple possession of that afterwards is a heinous crime for which you can go to gaol for a long time.
The absurdity is trying to stagger - and this came up during that debate - the age of majority in different ways through different bits of legislation. We see it in the Juvenile Justice Act which is 17; in the age of consent stuff, which is 16; and in the Community Welfare Act where you are a child when you are 18. This piece of legislation is 18. It means that you get these absurd situations occurring.
The fact is that it is not child pornography to have sex with a person. In fact, it is not even child pornography for a 60-year-old man to have sex with a 16-year-old girl. However, it is certainly child pornography to have a photograph of that act, under these circumstances. It is just one of the clear absurdities when the age of majority is staggered all over the place through our legislation. It was one that I cautioned of at the time - and hallelujah! - here it is. I told you so.
Mr MALEY: To save the Attorney-General jumping up twice I have a question of a similar vein. I am not wishing to help you too much but when you respond can you keep it in mind. Perhaps your counsel has already picked this up and I suspect that they probably have: the picture still has to cause offence to a reasonable adult in the definition. It is not just a picture. I assume that you would have received that advice. The example my colleague, the member for Nelson, used is the young people between 16 and 18, two 17-year-olds, caught on a digital camera having a pash at East Point. However, from what you said earlier, are you suggesting for a moment that that is caught by this legislation? I am pretty sure you are not, but if you are, can you just confirm that.
If you are saying that is not offensive to a reasonable adult, can you explain to honourable members what conduct would be? Is it laying naked together, having sexual intercourse? Can you put it on the record what you think amounts to child abuse material within that definition?
Dr TOYNE: Let us round up; we have had three goes at this. First of all, there are two issues here. The first issue is the age of consent which is a decision we passed through this House last November. As you quite rightly point out, it establishes the right of 16-year-olds and over to have sexual relations, but that is not the focus of this legislation. We are not interested in the private sexual lives of 16- and 17-year-olds and what they choose to do in private between themselves. What we are interested in is any attachment between that sexual activity by people of those ages as well as any other age above them to not only engage in some sexual activity or abuse of other types, but to then attempt to accumulate images of those activities or distribute them.
There is no doubt that the provisions within this act could potentially pick up an 18-year-old who has produced these sorts of images and attempted to distribute them, send them to mates or put them up more widely on the Internet. It is not unknown for young people who are very familiar with the Internet not only to acquire large amounts of material of all different types, including abuse material, but also to contribute to distribution on the Internet.
We do not believe that we should make a provision to say yes, it is okay for 16- and 17-year-olds to set up a child abuse material network if you are trying to counter that activity within the community. There is a big difference between two 16- or 17-year-olds having a private sexual relationship and the activity of producing and distributing this type of material around the community. We want to capture the latter within the provisions of this act.
Having said that, though, there is no doubt there would be a breach of the law if they attempted to do that. The police retain discretion to charge and the DPP retains discretion to prosecute a charge. The circumstance of any individual matter will guide the use of that discretion.
Take your hypothetical of a couple of 16- or 17-year-olds who have just discovered free love - and good on them. I cannot remember it in my own experience, but I am sure it was exciting at the time. If the police, for one reason or another, are given information that a recording has been made, they have discretion; if it is obvious to them as reasonable people that the purpose of making that image was not to engage in a broad activity of distributing abuse material around the community. However, take another hypothetical at the other end of the scale: say you do have two young people who think they could make a quid at this and put together a production of a child abuse episode where they act as the abused child, depict themselves as younger than they are, perhaps - I do not know - do you really think that that should escape the provisions of this bill?
All the way down the chain, you have the police as reasonable people making judgments about what the real motivation was; and you have the DPP making a judgment as a reasonable person about what the motivation was. It would be most unlikely that if it was an innocent act between two consenting people of that age who derived pleasure from producing and viewing images of themselves having sex, it would be highly unlikely that would go to charge or prosecution.
Madam DEPUTY CHAIR: Members of the opposition, would you like to work as a team and decide which one would like the acknowledgement, or should I choose?
Mr MALEY: It is your call.
Madam DEPUTY CHAIR: Member for Goyder.
Mr MALEY: I will give a practical example here, and one which I hope never happens to anyone in this Chamber. Do you seriously think that the DPP or the police would exercise their prosecutorial discretion not to charge a member of this Assembly or a member of their family with this type of offence, having regard to the political ramifications of making or not making that decision? Do you not agree …
Madam DEPUTY CHAIR: All right, member for Goyder, I will pull you up there. I reiterate what I said earlier; that there has been a discussion in this House today that personalised debate to members of the Assembly is out of order. I am ruling that out of order. I am more than happy for you to ask the Attorney-General a general question about whether discretion would be exercise or otherwise, but when you point it to ...
Mr MALEY: Okay, I did not have to use …
Madam DEPUTY CHAIR: Let me finish. … members of the House, and personalise it, you will be out of order. Rephrase it.
Mr MALEY: Okay, I did not mean to personalise it. Here is a hypothetical. A high profile public figure, whoever they happen to be - and the political example just popped into my mind, it was not directed at anybody in particular - but someone who is high profile. I was a police prosecutor; if there is any doubt, you lay the charges, you say: ‘Let the courts decide’. It is the no drop policy with domestic violence. These things occur. Do you realistically think that the DPP or the police will exercise their prosecutorial discretion not to lay a charge if there is some evidence and it involves a high profile person? Do you really believe that that decision can be made independently?
Dr TOYNE: The Director of Public Prosecutions deals with thousands of cases where they have to use discretion. I am sure they would use the same level of discretion in the case you are pointing out. I just do not see where your drift is at the moment. On one part you seem to be arguing for discretion, and in another part you seem to be arguing against it.
Mr MALEY: I will make the drift a bit clearer. You may not have much experience in the public service until you landed this particular job, but do you realise that human beings, being what they will …
Madam DEPUTY CHAIR: Order, member for Goyder!
Mr MALEY: Okay, you may not have the experience - I will take that back.
Madam DEPUTY CHAIR: Ask the question legitimately and reasonably instead of casting aspersions. We are in committee stage.
Mr MALEY: Are you aware that the making of the decision to prosecute or not to prosecute, and the nature of the particular position of the person of whom that decision is going to made will be a factor, no matter what you say? Practically speaking, all the theory aside, it will be a factor. Do you agree with that?
Dr TOYNE: What you are talking about is life; that life has many factors. Every decision made by anyone in our community is affected by factors from life. There is no way you can legislate to take those factors into account. All we can do - and what we are doing - with the legislation in front of us today, is that you put the provisions into the statutes. That is the body of the law that we are then asking people to take up in the real world outside, and they have to weigh up those factors. That is why you pay good wages to our prosecution staff and to our police, and they make the decision. The DPP is independent. I have full confidence in his ability to use this discretion, and that of his staff.
Mr ELFERINK: I will tell you where the discretion disappears and evaporates almost instantly. It is when the father of a daughter finds a photograph of her and her new boyfriend, who is 18 years of age, engaged in sexual conduct; in fact, there are 20 photographs on the hard drive of the computer. The father of the daughter then says: ‘This is just not good enough’. I know that they can have sex at law, but they are recording this image on the computer that belongs to the boyfriend. The father goes to the police station and says: ‘I want this guy prosecuted for having pictures of my daughter’.
I will tell you that the practicalities of modern life are that, when the father of the daughter goes to the police station and absolutely bangs the desk and says: ‘I demand something be done’, and there is a clear breach of legislation, the police are going to prosecute. They are going to say: ‘Oh, no way – no way on earth, Jose, are we going to make this decision’. The father is ropable; he tells everybody who is ever going to listen. If the police do not do what he wants, he is going to go to the Ombudsman; he has told the newspapers; he is filthy about this violation of his daughter.
That then goes to the DPP. The minister is asking me to believe that this thing is running in the public arena - child pornography is the most serious offence that you can possibly commit according to this bill - and this father is screaming from the rafters that something be done. That is going to end up in front of the court. All the court is going to look at is the legislation and ask itself: does this matter quality for all of the points of proof raised by this? If this matter qualifies, and it will - and this is the part that I am really concerned about in this, and I just want to hear the minister’s comments on it for future course – with just the points of proof that matter, click, click, click, click; they fall into line; proceed to conviction. Under this government, that person will spend the next seven years reporting because they are a convicted child pornographer.
Dr TOYNE: I love the hypotheticals …
Mr Elferink: That is not a hypothetical, mate, that happens every week – it happens every week. I can tell you that now.
Madam DEPUTY CHAIR: Member for Macdonnell, order!
Dr TOYNE: I saw every episode. However, the general …
Mr Elferink: Do not be flippant about it, because it will come back and bite you.
Madam DEPUTY CHAIR: Order
Dr TOYNE: The general structure of the discussion we have had in the last 10 to 15 minutes is that you are throwing up a lot of examples of situations where this law could, potentially, apply; where, potentially, there is going to be discretion needed from the police; where, potentially, there is going to be discretion needed from the DPP; where, potentially, the courts have to use discretion in terms of penalties if the person is found to be guilty.
I have made my position pretty clear on this. You either trust the discretion of people who have carriage of various parts of the process, where there is an investigation; a decision whether to charge or not to charge; a checking of the evidence that comes out of the investigation; and the decision by the DPP – do you prosecute, don’t you prosecute? – and a decision by a court as to both the guilt and the level of seriousness of the offence, if it gets to that stage of a successful prosecution.
I believe that, right across the body of law that we work with, that we put through this House and becomes active in the Northern Territory, we always depend on the discretion available and the judgments that are made by the public officers who are charged with applying that law to our community. I believe that, while you can put forward a hypothetical situation that could say: ‘Oh, they are going to gaol for 14 years’ – well, I do not think so. There are plenty of checks and balances built into the way in which these matters are going to be handled in real life. Police, very often, do not charge either because they have the doubts of a reasonable person about whether the offences have occurred. They evaluate the strength of the evidence that they have been able to find about the existence or otherwise of that offending. The DPP, on a daily basis, makes judgments of this type. The evidence is put in front of the DPP or one of his staff. They evaluate that evidence and ask whether this is going to succeed as a prosecution. They might say yes, and they often say: ‘No, we are simply not going to prosecute’.
The whole core function of the courts is to evaluate the evidence around an alleged offence and to make a judgment about whether the alleged offender is guilty of that offence. And if so, what seriousness in terms of the mitigating/aggravating factors might be attached to that behaviour, what is the appropriate level of sentencing. No legislation we ever put through this House can take into account the huge number of contexts in which the legislation could potentially impact. We simply have to trust to the competence of our professional people in the justice system to make this sort of judgment of a reasonable person as called for in the definition in the current bill.
That is my response encompassing the context that you have been putting forward. I accept that you have every right to ask those questions and point out those areas. I really think you have to trust the professional competence of our people in our justice system to deal with that.
Mr WOOD: Madam Deputy Chair, I suppose I am looking at it from a philosophical point of view that we have created a rod for our back by having one age for consensual sex and one age for what is the definition of a child. On one hand we have the simple definition, you might say, called ‘child abuse material’, which is something depicting sexual activity, someone engaging in sexual activity. The problem we have is that there might be two people, 16-or 17-year-olds, who are engaging in sexual activity. We have now said that if a child engaging sexual activity is photographed, that is child abuse material, by definition. It is not just consensual sex that we have photographed. We have said that if you have sexual activity, it does not matter whether it is consensual. In this case, it does not define whether it is consensual or not; it just says, ‘16-year-olds having sexual activity that is photographed is classed as child abuse material’.
However, we are saying on the other hand that 16-year-olds are allowed to have sexual activity and they are being - and this is no moral judgment - penalised for something that parliament has allowed them to do, and they may do it in a very loving manner. But they are officially, if they photograph it, turning what could be a very loving relationship as being child abuse material. That is where we have some problems with the way we defined all this. You might say it is hypothetical but 16- or 17-year-olds have just as much passion as 18- and 19-year-olds, and they can get themselves into this particular situation.
I know, minister, you are saying: ‘Well, of course, the police would take into account, etcetera, etcetera’. However, regardless of all that, we have made an interpretation that really has, to some extent, demeaned those young people who might be in a perfectly good relationship, who just for the sake of fun have photographed something, handed it to their mate, put it on a wall. They are now, going by this act, committing an offence. If they were 18-year-olds the offence may not occur. Yet they are still having the same loving relationship.
We have a problem because of the way we have dealt with the difference between definition of a child and the age of consent. It might be hypothetical to you, minister, but I would say in this day and age, especially with the use of a mobile phone, digital cameras, video cameras, that it is certainly not off the planet. I think it is real.
Dr TOYNE: Probably the answer to your problem in terms of the concerns you have lies in the definition of child abuse materials. I will read it again just from the bill: it means ‘material that depicts, describes or represents in a manner that is likely to cause offence to a reasonable adult’. That is the key part of the definition. It is not the fact that an image of simple sexual activity between consenting 16- or 17-year-olds exists. That does not characterise it as child abuse material. It is the effect it has on a reasonable adult: does it offend a reasonable adult?
Clearly, you are arguing that if it is young love and with all the modern technology, two 16-year-olds choose to record their sexual acts, would that offend a reasonable adult? I do not think it would. It would have to have an element of actual abuse, of domination, or hurt in it; in other words, a non-loving element which offends a reasonable adult when they view it. That is the purpose of having that part of the definition.
If that definition is not fulfilled, if an adult is not offended by it, then it is not child abuse material and, therefore, will not come under this provision. I do not know if that offers you any comfort.
Mrs AAGAARD: Attorney-General, it seems to me that the kind of material being discussed sounds very similar to Commonwealth restrictions for R-rated films, which people can only watch and distribute if they are over 18. It seems to me that we are reflecting Commonwealth laws and in fact we would not be able to change them for people under 18 anyway.
Mr STIRLING: Madam Deputy Chair, I have listened closely to the member for Nelson and the example that he portrays of a genuine, loving relationship. My view of that - and he may choose to differ and I would be interested to hear his views on it - is if it is a genuine loving relationship, I do not think they are going to be out there flogging it to mates or giving it to their friends.
The type of situation that he described, I would have thought that in the context of that relationship, whatever they took would be kept very close, confidential, personal and discrete between the two. That is not to say someone else might not get hold of it accidentally, but that is not the situation you are describing here. I do not see that you can describe a loving relationship between the two, an act of mutual adoration, admiration, that they take this action and film it or take some record of it, that they are going to race out and give it to all their mates. That would not seem to be a loving thing to do.
I listened closely to what you were saying. I am trying to get across your argument, but it does not add up in the context of a genuine, loving, caring relationship between two individuals.
Mr KIELY: Attorney-General, many of us have been hijacked on our computers to porn sites. This happens. This is not an irregular thing. It has happened to me. I have noticed a disclaimer at the front of the site that says that all the models here are over 18. Is it an offence for people under 18 to be participating in the manufacture of porn films? We are talking about 18 and we are talking about pornography. Do these actors on these sites all have to be over 18? It is probably a US law and I do not know if it is an Australian law or not, but, once again, I question whether 16-year-olds are, in fact, allowed to participate in the making of a porn film in some other laws.
Dr TOYNE: Yes, I can clarify that. Not only do participants in the manufacture of images have to be over 18, they have to appear to be over 18 in the images. You could potentially have people who were over 18 performing the acts that are the subject of the image, and it would be still be child abuse material if there is a deliberate attempt to depict them as under 18 or as children.
It is often very difficult to tell the age of participants in this type of material that has been generated overseas, for example. There is no way of going over there and checking the age of the subjects of the child abuse material itself. We have built those provisions in so that it is not going to stop a prosecution proceeding.
Mr KIELY: Therefore, if there were 16-year-olds in a loving relationship, taking photos of each other in a consensual sexual act and then showing it to their mates, would that perhaps constitute making a pornographic image and that would be illegal because you are not 18?
Dr TOYNE: It gets back to what I was saying about what a reasonable adult makes of that. In this case, we are paying police to be reasonable adults. It is really up to the police to make a judgment as to what motivated those young people to produce that image or to retain it or even to distribute it. Technically, they are in breach of the act - there is no question about that - to the degree that anyone is offended by it. If people are not offended by it, a reasonable adult is not offended by it, it is not child abuse material. That is the difference. If there is another element in it of any of the well understood forms of abuse, if that element is in that image, beyond just simply lovemaking, then that crosses the boundary and it is then capable of offending a reasonable adult and therefore capable of being classified as child abuse material.
Mr WOOD: I will be brief. I will answer the member for Nhulunbuy’s question which he asked me to give an answer. I accept that people have loving relationships, but I also accept that young people sometimes do things for larks. They might be in a loving relationship, but they might do things for a bet. They hang around with their mates as well. It does not stop them having a good, loving relationship, but they can, in theory, get caught up in this act. All I am saying in my discussion is that I think this differentiation has potential problems for young people, simply because we have discriminated about what they can do when they are 16 and what they cannot do between 16 and 18, and what they can do when they are 18. That is my final word on this at the moment. The member for Goyder has a fine example where he thinks there is another issue, but I believe we have left ourselves open for problems there.
Mr MALEY: My last hypothetical for you, minister. Two 16-year-olds in a loving relationship, engaging in sexual conduct, intercourse and the like, photograph themselves. Everyone has computers and digital cameras and the like. It is not published, it is on the computer, it is on a disk, it is on a digital camera similar to this. The relationship continues for six years. At 22 years of age, they split the blanket, and the aggrieved party, perhaps, hypothetically, the female, goes to the police and says: ‘My ex-boyfriend has some images on his digital camera, his phone, which I did not take with me when I left. I am offended’. Is that young man, or woman, caught within the scope of this particular provision?
Dr TOYNE: Like many things, it would be evaluated by the police on receipt of that information. The key element would be what would offend the reasonable adult; that is, the policeman. If that woman is, by taking - let us put it this way, probably if you had reversed the case that you put forward. Let us say that she leaves, and her estranged partner then uses that image by distributing it to demean her or to make some money out of it. He is dead gone; he would be right under the provisions of this act. But whether, in reverse, that if he is innocently holding on to a childhood image, I do not think a reasonable adult would say that he is doing anything wrong.
Madam DEPUTY CHAIR: We will now deal with clause 6:
Mr MALEY: I have one other question. When you say clause 5, you mean clause 5, the repeal and substitution of 125B, which is a new 125B?
Madam DEPUTY CHAIR: That is right.
Mr MALEY: I have a question in relation to subsection (3) of that clause.
Madam DEPUTY CHAIR: We have moved on, but Attorney-General, if you are happy to take the question?
Dr TOYNE: I will take the question.
Mr MALEY: This is probably the provision which I have the most difficulty with; that is, the reversal of the onus of proof. In other words, a defendant, once charged by the police, must then prove that he or she is innocent, running the gauntlet of the trial or a hearing. We know that the right to the presumption of innocence forms the bedrock of a fair criminal justice system. You have heard the comments I have read onto the record from Dickson CJ.
I am going to ask you a number of questions but the first question is this: what do you say when you have learned academics like Dickson CJ saying that, when he is referring to these reversal of onus provisions:
- In general, one must include that a provision which requires an accused to disprove the existence of a
presumed fact, which is an important element of the offence in question …
The reverse here is you are presumed to possess the material unless you go on to prove these things:
- … violates the presumption of innocence. If an accused bears this burden, it will be possible for a
conviction to occur despite the existence of a reasonable doubt.
I have repeated that because you have the academics, lawyers and judges - people who have spent their entire life immersed in this material who understand the importance of a presumption of innocence and a burden of proof. What do you say in response to that enormous amount of material? Is there justification for reversing the onus of proof in this particular subsection? That is the first query. Do you want a chance to answer that or shall I go through the other …
Dr TOYNE: It is a very short answer. We have covered this in the earlier discussion. I have made the point that there is a very clear process for the person to establish that they were innocent of the connection to the material. We have had plenty of learned opinion going into the provision that we are putting forward.
A similar deeming provision in the drug house laws has not created the sort of legal disasters that you are trying to portray here. The bottom line for this is that we have had at least one case in the Territory, and other ones around Australia where, despite a very strong body of evidence about such child abuse material being in existence in a person’s premises, the prosecution still failed. There are things that keep you awake at night in this sort of caper. One thing I do not want to keep me awake at night is that we are having failed prosecutions because of the current provisions being retained.
Our law, at the moment, is failing to prosecute on at least one occasion, and we have certainly heard of others. I just do not even agree that the proposition actually erodes the presumption of innocence. We have the capacity to put processes into the court. The court will decide on the body of evidence, including the evidence put forward by the alleged offender regarding their knowledge or lack of knowledge of that. It is just simply saying that, amongst the evidence that needs to be gathered together by the court to allow a decision as to guilt to be made, is the explanation of the alleged offender as to whether they actually have knowledge or no knowledge of the material that was found.
Mr MALEY: Attorney-General, you have stated precisely the problem here and have articulated that. It is on the Parliamentary Record. I hope the press are on the ball to pick that up. You said a person has a clear process to establish their innocence. Well, that is exactly the problem. You are saying there is a clear process for a person to establish their innocence. The onus is upon them. The provision is absolutely clear:
- (3) In respect of a charge against a person of having committed an offence against this section, proof
that child abuse material was at the material time in or on a place of which the person was –
(a) the occupier; or
(b) concerned in the management or control,
is evidence that the child abuse material was then in the person's possession unless it is shown that
the person then neither knew nor had reason to suspect that the child abuse material was in or on
that place.
You said it; you said precisely the very point which I am trying to make - the very point which you do not properly grasp.
We have the Attorney-General for the Northern Territory, who is sworn as the No 1 law officer in the land, saying there is a clear process for people of the Northern Territory to establish their innocence. That is outrageous and offensive. I just hope that the media has enough interest in this and give their listeners and readers enough credit to let them understand what is happening. I am not at all standing up for a moment for people engaging in this conduct. What I am saying is that there is now a situation that is creeping into legislation - and you have given some examples - and into various statutes where there is now a clear process for someone to establish that they are innocent. Remember that these fundamental safeguards of the right to silence and the presumption of innocent are there to prevent and control the excesses of government.
I will go back to an example: a person who exercises their right to silence, a person who was in the unfortunate factual situation where a computer or a photograph was in a house which is shared by several people, or involved in the management and control. He exercises his right to silence, he goes to court. He refuses to give evidence; he is going to say: ‘No, look I have done nothing wrong. I have nothing to say’. He will be in the position, unless he gets into the witness box, unless he discharges that evidential burden, it is actually the persuasive burden for the defendant, unless he discharges that and you have talked about to the balance of probabilities, unless he discharges that, he will be deemed to be in possession of that material.
This is precisely the scenario which Dickson CJ talked about. He talked about, with these reversal of onus provisions, there are situations where people can be convicted despite the fact there is a reasonable doubt. So, minister, your clumsy response has illustrated precisely – beg your pardon?
Madam DEPUTY CHAIR: Member for Goyder, withdraw! Personal - withdraw. I have been quite clear throughout the committee stage debate, I will not accept personal remarks.
Mr MALEY: I am not going to withdraw that. That was a clumsy response. I am entitled to say that. That is not offensive.
Madam DEPUTY CHAIR: I have ruled. I have asked you to withdraw.
Mr ELFERINK: A point of order, Madam Deputy Chair! The ‘clumsy response’ is not in any way abusive. It is an acceptable term of debate.
Madam DEPUTY CHAIR: Member for Macdonnell, there is no point of order. Member for Goyder, I ask that you withdraw.
Mr ELFERINK: Well, in that case I move, Madam Deputy Chair, a dissent from your ruling. We should get the Speaker in here. I will write it out.
Madam DEPUTY CHAIR: Write it out.
Mr ELFERINK: Because that is excessive.
Madam DEPUTY CHAIR: The Chair has received the motion of dissent in writing. The question is that the motion of dissent be agreed to.
Motion negatived.
Mr ELFERINK: I call a division on that, Madam Deputy Chair.
Mr Stirling: Is it supported? Apparently not.
Mr ELFERINK: Well, apparently it is.
Madam DEPUTY CHAIR: Is the division supported?
Mr Stirling: No one stood; it is not supported, Madam Deputy Chair.
Madam DEPUTY CHAIR: Ring the bells.
The committee divided:
Ayes 11 Noes 12
Mr Baldwin Mrs Aagaard
Mr Burke Mr Ah Kit
Ms Carney Mr Bonson
Ms Carter Dr Burns
Mr Dunham Mr Henderson
Mr Elferink Mr Kiely
Dr Lim Mr McAdam
Mr Maley Ms Martin
Mrs Miller Ms Scrymgour
Mr Mills Mr Stirling
Mr Wood Dr Toyne
Mr Vatskalis
Motion negatived.
Mr MALEY: As well as making those comments about a clear process to establish your innocence, there is another point you deliberately raised as a form of justification for this legislation, in a way implying that there was as safeguard. You said words to the effect of: ‘The court will decide on the evidence. Members of the Northern Territory public, you can relax, because if there is evidence before the court, then the court is going to decide on that material’. This is very much, albeit related, precisely the point: what evidence do we have? Evidence is a very broad term. Evidence before the court is a presumption contained in section 125B(3), and it says here: ‘… is evidence that the child abuse material was then in the person’s possession …’. So, your statement that, ‘Oh don’t worry, the court will decide on the evidence’, the evidence is merely a statutory presumption.
The second thing, you talk about in a cavalier fashion, evidence. Well, a bit further down in section 125B(5), we have evidence in the form of a certificate from a Director or Deputy Director of the Classifications Board. Under the Commonwealth act, a certificate stating that, in relation to the image or picture – I will read it precisely for the record so that members of the gallery and those who are interested can follow this clearly:
- … a person … who is a child or who looks like a child is admissible in any court of law and is prima facie
evidence that the film, publication or computer game is child abuse material.
So you have attempted, in a very poor fashion, and you have accidentally made the point precisely that I am trying to make. The poor punter who comes along, who exercises his right to silence will be, or could be, convicted because there is a certificate which is prima facie evidence. The court has processes, of course, but you have contaminated the processes of the court. You have contaminated in a way which has eroded some fairly fundamental safeguards.
The final way I put it is that, if you were serious about dealing with these matters, and it is not about having presumptions, it is about properly resourcing the police so they can present cogent and credible evidence to a court. You would not have to reverse the onus. The examples that you waxed lyrical about earlier about the spectrum of offences that you think you are trying to deal with, if that is the case, then there is no need to have this particular reversal of onus. Why won’t you allow the prosecution of a matter which has such a serious stigma to run the normal gauntlet, to have the normal safeguards, to have the normal procedural fairness?
You stand up in this place and place on the record that there is a clear process for people to establish their innocence. I hope that is not lost on honourable members - a clear process to establish your innocence. Well, that is outrageous. And then you say: ‘Oh, but there will be evidence, and it is decided on the evidence’. Well, the evidence is a number of presumptions contained in the legislation.
You have confirmed precisely the type of attitude and dangerous motivations which King CJ and the Canadian Supreme Court were foreshadowing. Unfortunately, in this country, we do not have a Charter of Rights, a Bill of Rights, which protects the presumption of innocence, which would, if it was in Canada, deem this particular provision unlawful. We do not have a statute which protects your right to silence. We have to rely upon politicians getting the right advice. We have to rely upon members of the opposition raising this matter in parliament. We have to rely upon members of the media thinking that it is an issue which is worthy of dissemination to the wider community, and that is the only safeguards we have. We have the presumption of innocence in one category.
The second pillar and fundamental safeguard we have is, of course, the right to silence. This reversal of the onus of proof is effectively another way of attacking that right to silence. There might be other ways to discharge the onus but, in 99.9% of cases, you do not have a right to silence if you are charged with this particular offence. No matter how you articulate it or you couch it, part of the process you spoke about to establish your innocence involves you stepping into the witness box. That is an erosion of your right to silence.
For this government to trapeze in here and say: ‘We are leading the way; this is the first state or territory jurisdiction to deal with this. We have looked at some Commonwealth legislation and we have taken bits here. We have looked at the old legislation’. For you to trapeze in here and, as a matter of urgency, pass legislation which, genuinely and objectively, erodes that fundamental safeguard - your right to silence - is a disgrace. The motivation is understandable and one that, quite frankly, the opposition supports. Let us get tough on this type of conduct - no problems with that. We are going to support the bill because it increases the penalty and sends the message out. However, for you to trapeze in here without thinking about the real and practical ramifications of the reversing of the onus of proof, of taking away a person’s right to silence is, quite frankly, disgraceful and you do yourself a severe disservice.
Dr TOYNE: Madam Deputy Chair, I have very little more to add to this. The member is demonstrating such inconsistency over there with ‘Yes, we are supporting this bill’, when we have now spent three hours picking over every single possible pretence to not support the bill. If you do not want to support the bill, get up and say so and we will …
Mr WOOD: A point of order, Madam Deputy Chair! That is not true. The reason we are going over this bill is to make sure that innocent people are not picked up in something that has …
Madam DEPUTY CHAIR: There is no point of order.
Mr WOOD: There is.
Madam DEPUTY CHAIR: There is no point of order.
Mr WOOD: If he says it again, I will raise a point of order.
Dr TOYNE: Madam Deputy Chair, for the member to be making the outrageous comments in terms of …
Mr Maley: Which outrageous comments? Which ones?
Dr TOYNE: … this is attacking the entire fundamental principles of the justice system, but we are still going …
Mr Maley: Which comments are outrageous?
Madam DEPUTY CHAIR: Order!
Mr MALEY: A point of order, Madam Deputy Chair! I want to know which comment - which one is outrageous?
Madam DEPUTY CHAIR: Member for Goyder, there is no point of order. The minister has the floor. If you have anything to add …
Mr MALEY: I am asking the minister the explain what he is saying. Which comment is outrageous?
Madam DEPUTY CHAIR: Member for Goyder, resume your chair. The rules of debate are that when someone has the floor, if there is a point of order they are called on that. I have ruled there is no point of order. You may not agree with what the minister is saying. You then have the right to stand and put your view when the minister has finished his response. Let the minister finish his response.
Dr TOYNE: Madam Deputy Chair, I am very comfortable with the extensive advice that has gone into the development of this bill. We have considered legal principles. You might pick out an authority in Canada – we have certainly balanced these issues in the development of this legislation. It is not unusual in law to have processes to establish how evidence is going to be adduced in a court hearing which will pertain to the innocence or otherwise of the alleged offender - the processes involved in testing alibis, for example. There is a process in place in the court. If you want to claim an alibi as a proof of your innocence, then there is a process that the court follows to test that evidence, which involves notifying both parties that that evidence is going to be proffered.
This is no different. It is just simply saying that, if you intend to put an argument that you had no knowledge of the material that was in the premises where it and you were found, then there is a standard of proof set out in the act, and it will be part of the evidence the court takes into account. It is not an unusual structure in law.
I do not see that there is much to be gained by continually restating the same concerns as we seem to be doing at the moment. I really have not much more to add to what I have said. Unless there are some new matters we should move on.
Mr MALEY: Attorney-General, you jumped up and said that what I said was outrageous. Can you please particularise precisely at which point - either the presumption of innocence being eroded, or the erosion of your right to silence - which portion is outrageous. Would you state on the record what you find offensive and outrageous about those two fundamental principles?
Dr TOYNE: Madam Deputy Chair, I have nothing more to add on these clauses.
Mr BONSON: Madam Deputy Chair, I have been listening to this debate for about three hours and, for the record, all I can articulate is what I believe is happening in this debate. With all due respect to the member for Goyder, we have to look at his background and where he is coming from. There is no doubt that the member for Goyder with his background in criminal law is looking at the element of what the protection is of an individual who has been charged with an offence and not dealing necessarily with issues of whether they are innocent or guilty, but coming from a point of view of an individual representing someone in that situation.
The member for Goyder and other criminal solicitors throughout the Northern Territory no doubt have represented people who have been innocent and guilty, but they are hired to represent those people. Some of the issues that the member for Goyder is pointing out are matters of jurisprudence and points of law and principles of law. The reality is this is a new bill. With any new bill that becomes a new law, there has to be given time for the courts to decide on how it should be implemented.
There will be cases decided where defence lawyers and prosecutors will argue points of law and how the particular legislation should be used in particular circumstances. The courts will be looking at how this bill should be interpreted, because that what we are talking about: how the bill should be interpreted and how the law in itself should be prosecuted, and what rights the individual has within that law. The judges will have an opportunity to look at precedent.
We have heard the member for Goyder give the Canadian example of the right to silence. He also talked about the Bill of Rights and the rights you get from the Bill of Rights. The issue here in Australia, is that we do not have a Bill of Rights. The Constitution of Australia governs what we have and what forms the basis of our law. As the member of Goyder would know, the High Court has interpreted on many different occasions that there are certain implied rights in our Constitution. There might be cases of individuals having certain rights under a Bill of Rights, but we do not have that opportunity in Australia. I am in the section of the community that would argue a Bill of Rights is not a good thing to have. The reason that I would argue is that it turns what is my individual rights as an individual against the community.
What we are talking about, for the member of Goyder, is the right for that person who has been found with pornographic material in his or her possession, what are their rights are versus the community. What I would argue to the members for Goyder and Nelson is that sometimes we have to look at what is the community’s right versus the individual’s rights. Sometimes we have to make tough decisions for the benefit of the community.
This is what this legislation is doing. It is saying that for the benefit of the community we will be introducing laws that will punish and prosecute people who are committing offences relating to children and pornographic material. We have heard the Attorney-General ask tonight what the opposition is doing. Is the opposition supporting the bill? I believe the shadow Attorney-General said: ‘I support the bill’ and that was it.
We have then had to have, unfortunately, a three-hour debate because of someone’s individual characteristics and his previous employment. I understand where he is coming from, this individual …
Mr WOOD: A point of order, Madam Chair! Reflecting on a member who is not in here.
Madam DEPUTY CHAIR: Member for Millner, I ask you to withdraw it.
Mr BONSON: I will withdraw it, but I never reflected on his absence or his presence. I am not even criticising his previous profession. What I am saying is the House needs to understand that where his profession is coming from is his ability to represent that particular individual. This is what this argument is about. I believe that the member for Goyder has just got warmed up because of his past work experience.
I say to the members of this House that the issue is we are introducing a law. That law should be allowed to be prosecuted to its full. Individuals have their right to defence. The judges will make their decisions on the evidence before them. I cannot see what is wrong with that process. I look forward to seeing people who have committed a serious offence being prosecuted.
I just could not let this debate go on without an understanding of those people whose arguments for the last three hours have been generated by their work experience rather than the issue at hand, which is the bill.
Mr WOOD: That was a very good contribution from member for Millner, and I accept some of what he was saying. However, there are two important points in this debate. The reason it takes so long is because it is a bill on urgency and therefore should be scrutinised to a greater extent than would normally happen because you have a lot more time investigate some of these issues. The second point is the reason we have a committee stage is because we have a unicameral House. If you read some of the adjudications on allowing this stage of parliament to be extended, it is because this is the only time we can duly scrutinise the bill.
It is a very important bill. I agree with the member for Millner about us acting on behalf of the community, but we must be careful that the innocent are not caught by the bill. If we can protect them and still have legislation that covers the community, so be it.
I support the thrust of the bill. I have said already that child pornography is a blight on our society. No way do I support anyone who deals in that sort of material. However, there are some important issues and they arise from the issue we discussed before: the difference between the age of consent and the definition of a child.
Mr ELFERINK: More generally, Madam Deputy Chair, very quickly, two questions. The first is: is this bill retrospective?
Dr TOYNE: No.
Mr ELFERINK: My second question: is there any case on foot at the moment of which you are aware, Attorney-General, that will not be captured by this bill?
Dr TOYNE: It is not my brief to know what individual cases are out there. What I am saying is that once this bill is commenced and becomes law, it will capture cases coming into the system after it is enacted as law, not before. I do not know what is out there. I know that there are still operations in progress.
Madam DEPUTY CHAIR: We will now deal with clause 6:
Mr WOOD: No, no. You were dealing with clause 5 because we …
Madam DEPUTY CHAIR: We have already passed clause 5.
Mr WOOD: After clause 6, remember, I …
Madam DEPUTY CHAIR: Yes, and I am giving you the call on the clause 6 now, but I have to ask the question first. You should know that as Chairman of Committees.
Dr TOYNE: Don’t worry Gerry; we are not robbing you.
Mr WOOD: Attorney-General, I need to ask these questions so I have it clear in my mind. If I have it wrong, I have it wrong. Clause 6 deals with using a child for production of child abuse material and pornographic or abusive performance. If you look up the definition of ‘abusive performance’, it means (a) engaging in sexual activity; (b) in a sexual, offensive or demeaning context; or (c) being subject to torture, cruelty or abuse, that is likely to cause offence to a reasonable adult.
If a person is 18, and engaged in a sexual activity, in a sexual, offensive or demeaning context that might cause offence to a reasonable adult, I presume they are not causing an offence.
Dr TOYNE: That is not strictly correct. If you had an 18-year-old who was depicting themselves as a child – say an 18-year-old of small stature who dressed as a child and then performed some act to generate this material - they are still engaged in producing this material.
Mr WOOD: Thank you, minister. However, not just using the exceptions, just a normal 18-year-old person, they would not be committing an offence. If two 16-year-olds are engaged in consensual sexual activity, which did include sexual offences within the meaning context, which might be likely to cause offence to a reasonable adult, but in the privacy of their own home, or wherever they are doing it, are they taking part in what is called ‘abusive performance’?
Dr TOYNE: No, they are not, on my advice. There has to be an element of abuse in it according to a reasonable adult’s judgment. If it just a straight act of consensual sex between two 16-year-olds, it would not be perceived by a reasonable adult to constitute child abuse and therefore it is not an abusive performance. If it had non-loving elements in it - abusive elements in what those two people were doing - and it subsequently became public then, potentially, it would be an abuse performance. For example, if there were sadistic overtones to the activity, or some demeaning of one of the participants. If you are making the example that it is a genuine act of lovemaking between two 16-year-olds, then it probably does not to a reasonable adult.
Mr WOOD: Just to clarify quickly, then, before I keep going on this area, do you require (a), (b) and (c) to make up a pornographic or abusive performance? Do all three parts have to take place, or only (a) and (b), and (c) as an extra? I am talking about abusive performance, and it requires (a), and it requires (b) and there is an or, – one of those famous ors – (c). Do all three things have to be taken into account to be pornographic or abusive performance, or can just the first two be deemed as abusive?
Dr TOYNE: It is one or another, or another, but it could be all three, or two of the three. It is a minimum of one, but they all could be part of the performance.
Mr WOOD: Okay. Then, if 16-year-olds took part in sexual activity that was likely to cause offence to a reasonable adult; say they were doing things that perhaps that might not be called the normal sexual activity, but some fairly strange things – hanging off the ceiling fan or something, I do not know – which might cause reasonable offence to an adult, are they not then part of abusive performance?
Dr TOYNE: The key thing is abuse. There has to be an element of abuse for it to be an abusive performance. Abuse means that you are harming, demeaning or dishonouring one or both of those participants in the acts that they are performing. To a reasonable adult, that would not constitute a normal lovemaking event. It has to have an element of abuse in it. Lovemaking is not abuse unless you are – well, I do not know …
Mr WOOD: Minister, abuse is the (c). Abuse comes under being subject to torture, cruelty or abuse. If you take the abuse out, and you say engaging in sexual activity and in sexual, offensive or demeaning context - and people, I would imagine, do some fairly strange things that could offend a reasonable adult. You are talking about a 16-year-old. If they fit that criteria that they are allowed to have consensual sex, are they not taking part in a pornographic or abusive performance?
Mr Kiely: So this is all photographed as well when they are doing it?
Mr WOOD: No, no. Read the section - read the section.
Madam DEPUTY CHAIR: Order! The member for Nelson has asked the question and the Attorney-General will respond in due course.
Dr TOYNE: Madam Deputy Chair, if you read the provisions together - we are on clause 6 if you have a look at proposed new section 125E and the first paragraph in that section:
- A person who uses, offers or procures a … child … for the production of child abuse material or for
a pornographic or abusive performance is guilty …
This is the whole package to describe the offence. In the case that you are putting forward, who is using who? There is no one using anyone in a consensual sexual act between two 16-year-olds. They are mutually consenting to the activity regardless of what element of imagination or activity - I am using my terms very delicately here, member for Nelson.
What we are trying to capture in the total weight of these provisions is the element of exploitation encapsulated in that paragraph: ‘uses, offers or procures’. It is actually an act of exploitation by one party on another. If there was a third party who was exploiting those two young people having sexual relations by producing material and distributing it, then that is abusing that situation. However, neither of those, inherently, are using each other. They are basically each offering willingly into the activity happening; it is not with the purpose of abuse. That is captured with that particular part of the bill.
Mr WOOD: I agree with the intent; I have no problem with that. However, a person who uses – I do not know whether the word ‘uses’ has some legal context - but if I am part of a consensual sexual arrangement where we are using one another - this is over 16. I am trying to highlight what I feel is a flaw in the law. We are engaging in sexual activity and we are doing a bit of funny stuff. We are in ‘sexual, offensive or demeaning context’ which could cause offence to an adult. According to this, which says - and I will cut it a little short - a person who uses a child – that is a person under the age of 16 - for the production of pornographic or abusive performance is guilty of a crime and is liable to 14 years gaol.
I am saying that is why I see it as a flaw. I perfectly agree with the reason for it being there but, minister, I believe that we have this hole in the law because we have this different interpretation of a child’s right to have sexual intercourse versus what is defined as a child’s age.
Dr TOYNE: Madam Deputy Chair, I really do not have a lot more to add to it. You have chewing that context through several of these clauses. Each clause that we have debated around your example has added another layer to what the bill is describing as the offence or offences that might be involved in that activity. Each one of them excludes the situation you are putting forward as being an act of abuse performance or an act of production of child abuse material. I would have thought that, far from being made more concerned about it, it should have reassured you that in each case I have been able to identify an element in the description of the offences that would actually exclude the case that you have brought forward.
Beyond what I have already said, I really cannot think of anything else that I can say to reassure you, other than to say that the provisions in this bill have been very thoroughly scrutinised by our legal people in policy and Parliamentary Counsel. The terms there are not only workable under law but also in commonsense meaning they are open to anyone who reads the act. Most people know what it is to ‘use’ another person in an improper way. That is common sense. If you are trying to exploit someone for your own personal gain, that is commonly understood. It is not a technical term or a legal term, it is simply just plain English.
Mr WOOD: Thank you, minister. I do not have much more to say except that I apologise to Madam Deputy Chair. I thought that we probably were not going to go this long when I asked her to step into the Chair. Thank you, Madam Deputy Chair.
Bill 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.
Motion agreed to; bill read a third time.
TABLED PAPER
Northern Territory Electoral Commission, Annual Report 2003-04
Northern Territory Electoral Commission, Annual Report 2003-04
Madam SPEAKER: Honourable members, pursuant to section 313 of the Electoral Act I table the 2003-04 Annual Report of the Northern Territory Electoral Commission.
MOTION
Print Paper - Northern Territory Electoral Commission Annual Report 2003-04
Print Paper - Northern Territory Electoral Commission Annual Report 2003-04
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the report be printed.
Motion agreed to.
MOTION
Note Paper - Northern Territory Electoral Commission Annual Report 2003-04
Note Paper - Northern Territory Electoral Commission Annual Report 2003-04
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Assembly take note of the report and that I have leave to continue my remarks at a later hour.
Motion agreed to.
TABLED PAPER
Treasurer’s Annual Financial Report 2003-04
Treasurer’s Annual Financial Report 2003-04
Mr STIRLING (Treasurer): Madam Speaker, in accordance with section 9 of the Financial Management Act, I am pleased to table the 2003-04 Treasurer’s Annual Financial Statement. The statement forms part of the 2003-04 Treasurer’s Annual Financial Report and presents the Territory’s second year of fiscal management on an accrual basis. The report also satisfies the requirements of the final fiscal results report as set out in the Fiscal Integrity and Transparency Act. The highlights of the 2003-04 Treasurer’s Annual Financial Report are:
a general government cash surplus of $36m – a $60m improvement on the original
2003-04 budget;
one-off accounting adjustments are removed;
a reduction in non-financial public sector nett debt of $67m on the 2002-03 outcome; and
an increase in nett worth for the non-financial public sector of $247m on the 2002-03
outcome.
I am pleased to announce that the Auditor-General has issued a clear audit opinion on the statement. A technical qualification still exists in relation to compliance …
Mr DUNHAM: A point of order, Madam Speaker! Is it the intention that this report will be tabled and circulated?
Madam SPEAKER: Yes, they are being delivered now.
Mr STIRLING: A technical qualification still exists in relation to compliance with Australian Accounting Standard 31, Financial Reporting by Governments, as has been the case for the last six years. The Territory has chosen to conform with Uniform Presentation Framework requirements rather than with AAS31 in this and in previous years. Work is under way nationally to merge UPF and AAS requirements with the expectation this will be finalised for 2006-07 at the earliest. Until that time, the technical qualification will remain.
I turn to the outcome for the 2003-04 financial year. The main focus of the government’s decision-making and reporting continues to be on the general government sector budget outcome. This is the practice of all other jurisdictions and in accordance with the UPF as it is the general government sector that is directly affected by government’s taxing and spending policies.
The Territory committed to a cash-based deficit reduction strategy at the time of the November 2001 mini-budget. Consequently, the Territory’s main focus has remained on the general government sector cash outcome as presented in the cash flow statement. The cash outcome for 2003-04 was $60m better than originally budgeted for in May 2003, resulting in a cash surplus of $36m. This surplus is in line with the $34m final estimate as published in the 2004-05 Budget Papers.
This improvement was a result of $156m increase in operating receipts offset by higher operating payments of $88m. The main component of the increase in operating receipts was $89m additional GST revenue. This followed increases in the national GST pool available for distribution. In addition, there was a $39m increase in Specific Purpose Payments from the Commonwealth together with increases in taxation revenue of $10m largely due to stamp duty conveyances reflecting increased activity in the Territory’s property market.
Operating payments were higher due to the government’s decision to increase funding in key areas. These included additional police resourcing resulting from the O’Sullivan Review, education and training initiatives, investing in the future of the Territory tourism industry, capital grants for supporting facilities and indigenous essential services, and additional funding for mental health and child protection.
Capital investment plays a central role in the government’s budget strategy as capital investment is essential for the delivery of government services. At the same time, the capital program provides a contribution to the economic development requirements of a growing economy. In 2003-04, capital spending increased by $3m from the original budget estimate of $193m. The result is slightly lower than estimated in May 2004 due to a change in classification of some items from capital to operational.
I now turn to the 2003-04 accrual outcome. While the operating result is a $40m deficit, there are two large one-off accrual transactions in 2003-04 that contribute to the outcome. The first was the transfer of the Centralian and Northern Territory Rural Colleges to Charles Darwin University resulting in a decrease in the Territory’s assets of $46m. The second relates to the reassumption of HIH liabilities of $20m following the abolition of the 4% employers levy in the 2004-05 budget. With the removal of these transactions, the underlying operating result is a $26m surplus. This is $23m lower than the $49m estimated for in the 2004 Budget Papers and is largely due to the reclassification of capital payments, explained previously, to reflect appropriate accounting practice.
While general government is the appropriate sector to focus on for the operating statement and cash flow, the non-financial public sector is the focus for analysis of the balance sheet. The use of this sector, which consolidates the data from the general government and public non-financial corporation sectors, is to ensure better comparability between jurisdictions.
The non-financial public sector nett debt for 2003-04 is $1656m representing a $169m improvement over that anticipated at 2003-04 budget time and a $67m improvement on the 2002-03 outcome. This, together with a $184m improvement in nett debt, plus employee liabilities since the 2003-04 budget, is largely the result of recent cash surpluses combined with a $22m increase in the value of the Conditions of Service reserve investments.
The improved budget position during the year, together with close management of cash balances, enabled the borrowing program to reduce by $63m in 2003-04. Nett worth has also continued to improve, being $106m better than predicted at the time of the original 2003-04 budget and a $247m improvement on the 2002-03 outcome. This is largely due to the revaluation and construction of assets along with the cash surplus mentioned earlier.
I now outline the government’s performance against the 2003-04 fiscal strategy. The strategy was based on three key principles:
- sustainable government services;
a competitive tax environment; and
prudent management of liabilities.
Specific targets were identified for each of the principles. The targets for the principle of sustainable government services are to achieve an underlying cash surplus by 2004-05 and to achieve a nett operating balance by 2012-13 in the general government sector. As discussed previously, the recorded cash surplus of $36m is $60m in excess of the original budget target. In addition, the underlying nett operating balance is a $26m surplus, after excluding the one-off accounting adjustments for assets transferred to Charles Darwin University and the reassumption of HIH liabilities. Based on financial performance to date, the government remains on track to achieve these targets.
The second principle is to maintain a competitive tax environment. In 2003-04, Northern Territory taxation revenue per capita was $1333, less than all other jurisdictions except Tasmania. The final figure reflects increased economic activity and the effect of inflation rather than increased tax rates. Indeed, the Territory experienced the smallest increase in taxation revenue per capita during the year of all jurisdictions. Given this, and the Commonwealth Grants Commission’s assessments that the Territory’s tax effort remains below the Australian average, the government has met this measure for 2003-04.
The last principle is the prudent management of liabilities. The effective management of liabilities gives considerable focus to targeting, monitoring and reducing nett debt to prudent levels. While Territory debt levels remain high relative to the states, Territory non-financial public sector nett debt has continued to decline, from $1743m in 2001-02 to $1656m in 2003-04 – an improvement of $87m. Over the same period, the ratio of nett debt to revenue has also declined from 67% to 57% in 2003-04. The addition of the employee liabilities to nett debt enables a broader assessment of government liabilities. As previously mentioned, nett debt plus employee liabilities for the non-financial public sector for 2003-04 was $3483m, an improvement of $184m on the original budget.
The Territory’s unfunded superannuation liability of $1467m at 30 June 2004 is expected to peak sometime around 2006. After this time, the liability is expected to progressively decline until full extinguishment around 2065. Emerging costs with the actual cash payments required to meet liabilities as they fall due are expected to increase until around 2015 when they, too, begin a steady decline to around 2065.
Madam Speaker, in conclusion it is a good result for the Territory. It is consistent with the government’s fiscal strategy, and a significant improvement on the original 2003-04 budget estimates. Government will continue to manage the Territory’s finances responsibly, maintaining an appropriate balance between community needs, the needs of the Territory economy, and maintaining a sound fiscal position.
I table the 2003-04 Treasurer’s Annual Financial Report, which incorporates the 2003-04 Treasurer’s Annual Financial Statement. I commend it to the House.
Madam Speaker, I move the Assembly take note of the report and I seek leave to continue my remarks at a later hour.
Motion agreed to.
TABLED PAPER
Select Committee on Substance Abuse in the Community Report - Inquiry into Petrol Sniffing in Remote Northern Territory Communities
Select Committee on Substance Abuse in the Community Report - Inquiry into Petrol Sniffing in Remote Northern Territory Communities
Mrs AAGAARD (Nightcliff): Madam Speaker, as Chair of the Select Committee on Substance Abuse in the Community I table that committee’s report on its inquiry into Petrol Sniffing in Remote Northern Territory Communities.
MOTION
Print paper - Select Committee on Substance Abuse in the Community - Inquiry into
Petrol Sniffing in Remote
Northern Territory Communities
Print paper - Select Committee on Substance Abuse in the Community - Inquiry into
Petrol Sniffing in Remote
Northern Territory Communities
Mrs AAGAARD (Nightcliff): Madam Speaker, I move that the report be printed.
Motion agreed to.
MOTION
Note paper - Select Committee on Substance Abuse in the Community - Inquiry into
Petrol Sniffing in Remote
Northern Territory Communities
Note paper - Select Committee on Substance Abuse in the Community - Inquiry into
Petrol Sniffing in Remote
Northern Territory Communities
Mrs AAGAARD (Nightcliff):
Madam Speaker, I move that the Assembly take note of the paper.
Madam Speaker, petrol sniffing is human tragedy. Imagine the scene of driving on the dusty roads of a remote community and witnessing a young teenage girl of, say, 15 or 16 walking along the road while breastfeeding a very young baby and simultaneously petrol sniffing. This is the scene that confronted me in one Western Desert community last year. This is the scene which is repeated in other communities around the Territory on a daily basis.
Evidence says that there are around 360 sniffers throughout the Northern Territory, mainly aged 12 to 17 years, but with children as young as eight sometimes involved and, occasionally, people as old as 25. Some people might say that 360 people is not many people, but the significant negative and detrimental effect these people have on their families and their communities and, of course, on themselves, far outweighs the numbers involved, not the least in the loss of a meaningful life, where that person becomes permanently disabled from brain damage from a very young age.
Petrol sniffing, or any form of volatile substance inhalation, is a particularly distressing form of substance abuse. That a person – and, more worryingly, a young person - would subject their body and brain to such an experience is difficult to comprehend. It can only be assumed that the need for a high to escape from whatever sad reality they are facing at the time makes the risk of damage worthwhile. It is that sad reality which we really need to address if we are to make any sustained inroad into petrol sniffing.
Let me just set the scene for this report. This is not the first parliamentary committee to look into petrol sniffing. In 1985, the then two Northern Territory Senators, Senator Ted Robertson and Senator Bernie Kilgariff, successfully sought the establishment of a Senate committee to inquire into and report upon the voluntary inhalation of volatile substance fumes in Australia; in particular, by persons aged 18 and under, and where petrol sniffing had become endemic. Other inquiries have followed and governments, over time, certainly have not been diffident about addressing the issue. However, petrol sniffing is still with us and still as great a scourge as it has always been. Why is this?
The committee has taken evidence from numerous people representing all levels - social, economic, ethnic and geographic - of Northern Territory society during its three years of life. It has received 18 submissions specifically in relation to petrol sniffing, and held a total of 13 hearings and meetings where petrol sniffing was the focus. The committee has sifted through the evidence presented to it and has condensed its findings into 17 recommendations. The evidence presented, the committee’s consideration of this in terms of its terms of reference, and the findings of the committee, as well as consequent recommendations, are detailed in the report. There are a total of four appendices to the report. Appendix 1 provides an overview of the work of the committee to date; that is, since it was first established when this government came to office in 2001.
As members are aware, the substance abuse committee was established as a select committee, although without a reporting deadline for its inquiry and report to parliament. As such, it has operated and been seen to operate more as a sessional committee. While the committee has also considered alcohol abuse and cannabis use, along with petrol sniffing, the establishment of the alcohol framework project team led to the committee deciding to work hand-in-hand with that body on alcohol solutions, while focussing its immediate attention on petrol sniffing and, specifically, its impact upon remote Northern Territory communities.
As further background, the committee has included in the report, at Appendix 2, brief discussions on three earlier parliamentary inquiries which touch on petrol sniffing and may have lessons for us to note in addressing our current situation.
I mentioned earlier the Senate inquiry into substance abuse which had a focus on young people in areas where sniffing was endemic. Part 2 of that committee’s report is of particular relevance to this current inquiry. As the Senate committee considered that urban and rural inhalant abuse has separate sociologic contexts, the second part of their report was concerned with petrol sniffing amongst the youth of Aboriginal communities, a cohort we again looked at 20 years on.
The second inquiry which the committee considered had relevance to its own inquiry was that undertaken by the Victorian Drugs and Crime Prevention Committee into the inhalation of volatile substances in Victoria, the result of which was a very informative report released in September 2002. Of course, Victoria has a much more urban population that the Northern Territory and also exhibits other demographic and socioeconomic differences. However, the committee considered that this inquiry was relevant first, because the report is extremely comprehensive and, second, it was undertaken relatively recently.
Once section looked at strategic interventions to address inhalant abuse in indigenous society, both urban and rural. The Victorian committee travelled to New Zealand to observe the considerable advances made there in combating the inhalant problems of Maori youth through cultural interventions, which are of relevance to any society addressing substance abuse amongst its indigenous population.
The final parliamentary committee inquiry considered in Appendix 2 is that of the House of Representatives’ Standing Committee on Family and Community Affairs, which looked at the social and economic costs of substance abuse around Australia. The House of Representatives’ committee undertook a number of consultations in the Northern Territory including in a number of rural and regional areas. In September 2001, it released a discussion paper, Where To Next, which was of timely advantage to this committee which was established in that same month. The final report of that inquiry, Road To Recovery, was released in 2003. Returning to my committee’s report, Appendices 3 and 4 respectively, lists the petrol sniffing-specific submissions and meetings presented.
I now move on to provide an overview of the report itself. The body of the report is divided in to three parts. The first part looks at the evidence taken by the committee at meetings and hearings and that provided to it in written submissions. I am sure that all members understand that when we are talking about substance abuse, often there are no clear cut differentiations between preferred substances to abuse. This is apart from those addicted to illicit drugs of course, but even there as we know sometimes it is a matter of whatever is available at the time. In this context, I am discussing the substances of abuse most often associated with indigenous communities and these are mainly alcohol, cannabis and petrol. Sometimes they are used as a cocktail, sometimes it is a matter of whatever is available and can be got hold of. So in saying that this is the evidence of the committee in relation to petrol sniffing in remote communities is to ignore the other large body of evidence which addressed the extent and causes of, and solutions to, substance abuse in remote indigenous communities overall.
Each of the 13 meetings and hearings held and the 18 submissions received, specifically dealing with petrol sniffing, are discussed in chronological order in the report. As I only joined the committee earlier this year, I will leave discussion regarding the earlier consultations to those committee members who were present as part of their contributions to this debate.
In February, the committee decided that it would finalise its inquiry into petrol sniffing amongst remote indigenous youth with a view to reporting to the Legislative Assembly later in the year. The committee also agreed that it would seek briefings from two witnesses, experts in different but complementary fields, Dr Peter d’Abbs and Dr Tracy Westermann. A further area the committee considered it should look at was CAYLUS, the Central Australian Youth Link Up Service project in Central Australia. As well, the committee sought a meeting with representatives of the Australian Institute of Petroleum, a body which represents the fuel distribution and product companies nationally. In doing so, and I should acknowledge that this has been a pet interest of the member for Nelson and it is through his input that the committee pursued this line of inquiry, the committee hoped to establish if there was a possibility of industry playing a part in addressing petrol sniffing.
The results of these meetings are discussed in the report and copies of the transcripts of the meetings with Dr d’Abbs, Dr Westermann and CAYLUS are available for members if they wish to look at the evidence in more detail. However, the meeting between representatives of the Australian Institute of Petroleum, which the member for Katherine and I attended as a sub-committee representing the committee, was not recorded and I would like to say a few words about that meeting.
As I said, the member for Katherine and I met with the executive director of the institute and representatives of BP Australia in Canberra in June this year. The three senior executives of BP we spoke to were Mr Frank Russell, the Manager, Fuels Marketing and Assurance Australia; Mr Bob Welsh, Rseller and Terminals Manager Australia; and Mr Mark Glazebrook, BP’s Corporate Citizenship Advisor. These people were able to provide us with information regarding the project BP is currently involved in in Central Australia to combat petrol sniffing. In conjunction with indigenous communities in the Western Desert region of the Northern Territory, as well as Yirara College in Alice Springs, BP has developed a three part program: stop the sniffing; provide alternative activities to sniffing; and get them back to school.
As regards school attendance and retention rates, this has been very successful. The next stage of BP’s project includes planning with BP’s corporate partners to identify post-school training and employment opportunities for these young people. I was much heartened of this example of industry displaying the triple bottom line theory and action through their determination to put something back into the community from which they draw their profits.
The second part of the report contains a consideration of the issues presented in the evidence of the committee, in what was asked of the committee in the terms of reference. In this chapter, the committee discusses those issues which it considers to be dominant with regard to the petrol sniffing problem, with regard to community concern, current trends, social and economic consequences, especially with reference to the wellbeing of individuals; services currently available in the Northern Territory to address petrol sniffing; factors which directly affect the nature and level of petrol sniffing, that is accessibility and availability; the Territory’s demographic and ethnic structure and the correlation between socioeconomic conditions and petrol sniffing; and finally, appropriate policies and services for prevention and treatment.
I will now move on to the important part of the report which is that containing the findings of the committee and its recommendations. The committee, in considering its findings, looked at eight broad areas for addressing petrol sniffing as follows: a whole-of-government approach; meeting the needs of individual communities; immediate and longer-term harm reduction, intervention and treatment; education, skills and training; ancillary community programs; the need for comprehensive data collection; drug education; and cooperative approaches with industry.
There is little doubt that the major contributing factors that could be considered as indicating a propensity for petrol sniffing are socioeconomic: poverty; boredom; oppression; lack of services and facilities; parental drinking and gambling, leading to hunger and neglect; poor education levels and lack of employment and aspirational opportunities; and so on.
The boredom issue is a common cry from remote communities where any sort of meaningful activity, whether work, sport or other recreational pursuit is too often missing. However, the use of legal or illegal substances by young people is not something found only in remote Aboriginal communities. As with youth in any society, there is also an element of rebellion in experimenting with drugs in remote communities, where petrol is the most readily available and for youth with little financial means, is an affordable substance to abuse.
Accordingly, any strategies to address petrol sniffing need to be introduced in tandem with measures addressing the socioeconomic issues underpinning the practice, as well as with strategies which address availability and accessibility. The committee is convinced that if government is to effect any change, it is imperative that it address the issues with a whole-of-government approach, ensuring that all service delivery is networked to ensure it is coordinated; that services comply with the program parameters; and that those delivering it are accountable for its outcomes. This coordination is absolutely vital if life expectancies, particularly those of our young people, are to improve.
The committee considers that this could be achieved by establishing an over-arching body to coordinate the Northern Territory’s petrol sniffing strategy, with responsibility to ensure that services are adequate to the needs of remote communities and that they are fully coordinated. The committee considers that this body would sit logically within the Department of Health and Community Services, but would consist of representation from all government agencies, both Northern Territory and Commonwealth, as well as those from non-government organisations which are involved in the delivery of petrol sniffing programs and services. It is imperative that any intervention be geared to an individual community’s specific needs and have, wherever possible, the full support and involvement of all levels within the community.
It was evident to the committee when taking evidence that those programs which are successful and have sustained results are those which are accepted across the board and have this depth of community support. Given the intermittent and scattered nature of outbreaks of sniffing episodes, it is essential that interventional strategies are put in place quickly when an outbreak is reported. This would assist in minimising the spread of the problem and the harm to the fabric of the community.
The cost of placing intervention services in every community with a history of sniffing or dysfunction is huge. The recruitment of enough skilled people to staff facilities in each community also poses many problems. The committee considers that funds and resources could be better targeted to petrol sniffing by establishing and training regionally-based culturally-responsive teams to intervene when a bout of sniffing breaks out. The role of these teams would be to support the community itself, using and supplementing the existing services infrastructure to deal with the issues of intervention, assessment, treatment and diversionary programs when needed.
The committee proposes that the team or teams would move quickly into a community when a problem is identified to put in place immediate interventionist action and assess the medium to longer term needs for treatment and diversion. Importantly, this should also include a capacity to train members of the community including how to deal with people when they are on a petrol high in what are often explosive circumstances.
Full consultation with the community when developing and delivering programs and services is a given. However, it is inappropriate to expect a community to deal with these issues alone. Too often, remote communities are expected to take responsibility for their own drug problems and deal with them on their own. Remote communities are often called on to take ownership of problems to an extent that would never be expected of urban communities. In fact, in the urban situation it would be highly discouraged.
During a number of community meetings, parents and others pleaded for government intervention to prevent sniffing. Too often, people feel unable to deal with a situation and are looking for support through intervention by the authorities. The legislative powers to do this should be explored. At the very least, police should be able to impound petrol and sniffing implements, and then deal effectively with the sniffer, depending on the circumstances if at risk of harm to themselves or others. Most people would agree that locking up sniffers, particularly as they are almost always juveniles, is not the answer to the problem. But there is a need to protect them and others in the community, and to compel them to undergo some form of treatment and rehabilitation when this is warranted.
The Police Administration Act provides police with the power to apprehend, without arrest, a person who is drunk, keeping them in protective custody until they are no longer a threat to themselves. Similar legislative provisions for dealing with people needing protection while under the influence of petrol are also needed. Apprehending or otherwise removing a young person from the source of harm in itself is not sufficient. There need to be safe houses and other places where they can be taken, where they will be safe and restrained, if necessary, so that they are unable to hurt themselves or others.
In the medium to longer term, intervention and treatment needs have to be assessed and alternative pathways to a healthier lifestyle that does not include sniffing found. This may also require legislative changes to mandate treatment.
A networked response by government agencies provides an opportunity to skill community people, especially the younger people, to work amongst their own youth. It is recognised that the provision of initial skills training will require ongoing supplementation to capably support them in this role. The committee considers that the provision of skills and training through a recognised program could be provided through community education centres established to meet the needs of youth from the various communities. As well as providing employment opportunities relevant to a particular community’s needs, it would provide the opportunity for increasing awareness of substance abuse issues which would be extremely valuable for providing peer support and mentoring for young people of a community.
It is essential that health workers, teachers, community development workers, and the like, be given training in dealing with sniffing issues and sniffers. Where a community has experienced sniffing, it is imperative the government workers employed there are given in-depth training to understand the problems the community faces, and how they can best contribute to alleviating the situation. Boredom and a lack of meaningful occupation, either through structured work or recreational opportunities in communities, is given as a major cause for petrol sniffing. While CDEP, or Community Development Employment Program, is provided, it is insufficiently flexible and creative to achieve meaningful outcomes.
The committee urges the Northern Territory government to approach the Commonwealth government to review the CDEP program to allow this level of flexibility. The committee also noted that it should be the goal of all governments that there be full gainful employment in communities. Whilst it is acknowledged that it is a major challenge to provide for economic enterprise within many communities, it is imperative that this remains the medium to longer term goal.
Providing skilling and training to targeted community members to undertake available employment opportunities in communities is one avenue. Similarly, evidence shows the importance of quality sport and recreational programs in maintaining young people in meaningful activity. It was also noted that sport and recreation programs are limited to normal working hours. Too often, the committee was told that sports, occupation and artistic opportunities were not provided after hours when youth had little alternative activity to occupy their time and, as a result, were more vulnerable to engaging in sniffing. This also seemed counterproductive as, of course, it would be desirable that young people were at school for most of the normal working hours.
The committee also took evidence that deficiency in data collection had led to a lack of appreciation of the extent of the petrol sniffing problem and its impact on health, as well as its contribution to death rates. Morbidity and mortality data may not record that petrol sniffing was the underlying cause. This also applies to available data on violence and crime. The result is that the overall impact of petrol sniffing is not recorded and therefore its full impact is hidden from researchers and policy makers. This needs to be addressed urgently.
Avenues for positive peer influence exist through advertising programs and the inclusion of information on the damaging effect of sniffing and drug education programs which are part of the curriculum. However, care needs to be taken that in so doing, petrol sniffing is not glamorised or in any way made inviting to impressionable youth.
The committee considers that the petroleum industry has a role to play in combating petrol sniffing problems, and encourages dialogue with industry to develop coordinated responses because private industry is often able to respond faster than government to deal with emerging problems. This provides an opportunity to make a real difference in combating sniffing. It is acknowledged that this is already happening with at least one private company in Central Australia, and I spoke of BP Australia’s involvement earlier.
As well, ways to reduce the availability of petrol in forms which are harmful when sniffed, but are still able to effectively fuel vehicles, need to be further examined. The introduction of Avgas and Comgas into communities has been successful, but the indigenous population of remote communities is as mobile as any other, with ready access to regional towns and centres. The feasibility of expanding this strategy on a regional basis should also be explored.
The committee considers that it is time for the Northern Territory to act decisively to wipe out petrol sniffing. The conservative costs of full-time institutional care today for a person who is mentally debilitated through sniffing is $160 000 per annum if being provided in an urban centre, and the cost more than doubles when this has to be provided at a remote community. The human cost to the Northern Territory is so much greater. The failure of petrol sniffers to achieve their full potential will be a loss, not only to their community and to indigenous society, but to the future prosperity of the Northern Territory overall. All our children are important to us, and this should be reflected in our policies and services.
I will now list the committee’s 17 specific recommendations:
- 1. that federal and Northern Territory government services be closely networked to ensure their
respective petrol sniffing programs and services are coordinated, including cross-border coordination
between the Northern Territory, Western Australian and South Australian governments’ programs and
services, in line with the cross-border cooperation model adopted by police;
2. that overall responsibility for the coordination of the Northern Territory’s petrol sniffing strategy be vested
in one agency which would provide a coordinating role for an inter-departmental body representing all relevant
agencies, including non-government organisations, to oversee the networking of all programs and services;
3. that interventions be geared to the specific needs of individual communities and developed in consultation with
those communities;
4. that a team or teams of workers trained to respond quickly to support communities to implement intervention
strategies when outbreaks occur be established;
5. that part of the intervention strategies include training of, and support for, people within the community to provide
for sustainability of positive outcomes;
6. that legislation similar to that which provides for apprehension without arrest of an intoxicated person under the
Police Administration Act be introduced to allow for persons under the influence of petrol to be taken into
protective custody;
7. that appropriately staffed safe houses or refuges be established in communities to provide immediate shelter and
protection for persons so apprehended;
8. that the legislation allows for intervention for assessment and provision of ongoing treatment to be delivered if
appropriate at these facilities;
9. that relevant certified courses to provide training and substance abuse work to community members through
community education centres be investigated;
10. that specific training in dealing with petrol sniffing and supporting a community during a petrol sniffing outbreak
be incorporated in the cross-cultural awareness programs undertaken by community-based government employees;
11. that the Northern Territory government lobby the federal government to review the CDEP program with a view to
providing full, gainful employment on communities;
12. that the delivery of sporting and recreational programs in remote communities be geared to the needs of the client, recognising that they are often most at risk outside usual working hours;
13. that steps be taken to ensure that where petrol sniffing is a contributing factor, this is recorded in data collections by
all government agencies and regularly reporting to the body responsible for the coordination of the Northern Territory
petrol sniffing strategy;
14. that an integrated program of advertising and education about the physiological aspects of petrol sniffing in the short,
medium and long term be developed for delivery;
15. that cooperative approaches with industry for diversionary and lifestyle programs be explored;
16. that the Northern Territory and Commonwealth governments work with industry to encourage further research into developing fuels which are not intoxicants; and
17. that the feasibility of the expansion of alternative fuel provision to areas outside of communities be investigated.
Madam Speaker, at this point I would like to acknowledge that government has already committed $10m for petrol sniffing initiatives over the next five years and has indicated that it will use the recommendations of this report as a basis for the spending. I look forward to having discussions with the appropriate ministers regarding these matters.
I extend my thanks to my committee colleagues from both sides of this Chamber and the Independent member of the committee for their contribution to the work of the committee in looking into substance abuse in the Northern Territory in general and with respect to this report on petrol sniffing in particular.
I came onto this committee in February this year and have been Chair since that time. The fact that the committee has been able to bring the petrol sniffing inquiry to fruition in a comparatively short time indicates the bipartisanship that the committee enjoys.
I acknowledge that there is a dissenting report and this is, of course, included in the document. However, it should be noted - and the dissenting report reiterates this - that that dissention was in relation to one recommendation only and opposition members of the committee concur with and support the report in all other aspects. A bipartisan approach of course allows the committee to be much more effective in undertaking the significant responsibility which has been vested in it by the Legislative Assembly.
I particularly thank the committee secretary, Ms Pat Hancock, and researcher, Ms Liz McFarlane, whose work in assisting this committee in preparing this report is greatly appreciated.
Ms CARTER (Port Darwin): Madam Speaker, I am delighted to rise this evening in support of this report. I have been an inaugural member of the Select Committee on Substance Abuse in the Community and it is great that we have now published the Petrol Sniffing in Remote Northern Territory Communities report.
Madam Speaker, as you and all members of this House will know, petrol sniffing is a tragic problem which from time to time ravages disadvantaged communities in many places in the world. To my mind, petrol sniffing is a symbol of despair. Sniffers are using the drug in an effort to alter their perception of reality. And quite frankly, many people do this. Many people look for some sort of a drug to use to alter their perception of reality and generally speaking it is done in a safe way. Quite frequently the drug of choice in our community is alcohol. Most people are able to consume alcohol in a safe way and they get a bit merry with it and enjoy a night out and catch a taxi home. That is usually about the extent of it.
Unfortunately, there are other people in our community and around the world whose situation is so desperate and so despairing that they seek drugs that are going to basically obliterate the reality of their life and replace it with something different. To my mind, this is the situation with petrol. The problem is that these despairing, poor people who sniff are so desperate to escape that they go to a ghastly substance, petrol.
Petrol is available just about everywhere. It is cheap and for many of these people it is easy to get. I can remember when I my husband worked as a nurse at Oenpelli years ago. We had to be very careful with where we put the car and we used to just leave the petrol cap off the tank because, quite frankly, when you came out in the morning and found the petrol cap had been jimmied off the side of the car it was pretty despairing sight out there in the middle of nowhere. That is what a lot of us did; we just left the cap off the tank and hoped there would still be enough there to get home as I was living in Darwin at the time.
Petrol sniffing is a tragedy. To my belief, one of the problems is that the sniffer is not interested in tomorrow. They have no hope for their future. They do not care about themselves. The end result of this despair is massive self-harm and suffering for the sniffer and those who care about them and for their community. There is incredible cost in any community where sniffing occurs, and it does come along sporadically; it comes and goes in communities over the years. That was the committee’s experiences as we travelled around over the last three years. Some communities have no petrol sniffing, some communities have a little bit of petrol sniffing and some communities have a major problem with petrol sniffing. It does tend to come and go. It is not specific to any one community. That is one of the strange things about petrol sniffing and one of the reasons why the committee is recommending greater research into this area.
There is massive cost, both to the individual, their loved ones and to the community. For the individual, it causes significant physical and mental harm. It also can cause incredible harm to a foetus if the mother is a sniffer. It causes harm if the sniffer becomes violent or abusive. Many people have suffered the consequences of being attacked by a person who has been sniffing petrol. These are the human costs to petrol sniffing.
There is also a financial cost borne by our community which particularly relates to things such as violence and crime which may occur while someone is under the influence of petrol. The cost also relates to the provision of health services. Although I have never personally nursed anyone with a body and brain damaged by petrol sniffing, I am aware that there are patients within our hospitals and our services who are the victims of petrol sniffing. They are often severely disabled and require a great deal of care, which is expensive. There is a financial cost to us. I am quite sure all of us are far more concerned about the personal cost both to the sniffer and their loved ones.
We need to be aware that children are not the only people who sniff petrol, even though they tend to be the ones who do it in greater numbers. This is probably because once a person turns 18 they have easier access to other drugs such as alcohol. It appears, from my observation through my experience on this committee, that adults tend to use alcohol and young people who cannot get access to alcohol may choose to use petrol. Alternatively, young people, as in children and adults, in many places now are taking up the smoking of cannabis at an extraordinary rate.
Adults have been known to be quite substantial sniffers, and I take this opportunity to read into the Parliamentary Record some quotes from a Coroner’s report into three deaths a couple of years ago at the Pit Lands, and this is the South Australian Coroner. I quote:
- This inquest concerns the death of three people …
I won’t name those three people:
- All three deceased died as a result of inhalation of petrol fumes. The mechanism of death was strikingly similar
in each case, namely that the deceased took a can containing petrol to bed with them, and continued to sniff until
they died from respiratory depression with a possible additional component of asphyxia.
Each person had marks on his or her face indicating that the head was resting on the tin, which had been shaped to
fit the contours of the face and achieve a seal.
Each of them was of mature age (27, 25, 29 years) and each had been sniffing petrol for more than 10 years,
thereby justifying the description ‘chronic sniffers’. Each had led lives characterised by illness, hopelessness,
violence and alienation from their families and community. Each had parents and family who did their best to
stop them sniffing, and who have endured much suffering and grief as a result of their inability to do so, and the
consequent death of a loved family member.
Clearly, socio-economic factors play a part in the general aetiology of petrol sniffing. Poverty, hunger, illness,
low education levels, almost total unemployment, boredom and general feelings of hopelessness form the
environment in which such self-destructive behaviour takes place.
I feel that this short, succinct report from the Coroner in South Australia encapsulates many of the aspects which we found during the three years of our study into this sad situation. I was very pleased, as the member for Port Darwin, to participate in the research performed by this committee. I believe the report that has been generated and tabled here tonight is excellent. It is succinct, it encompasses all our major findings, and provides a list of recommendations which I urge the government to implement.
As has already been mentioned, the CLP opposition supports all the recommendations, except for number 6. I will read it into the Parliamentary Record:
- … that legislation similar to that which provides for apprehension without arrest of an intoxicated person under the
Police Administration Act be introduced to allow for persons under the influence of petrol to be taken into protective
custody;
This is the only point with which we disagree. As members will know from the debate that was held in this Chamber last week, the problem for us is that we consider the view of putting people into protective custody for a short period of time is not strong enough. I will explain it briefly as we did it in some detail last week. The particular point that we have here is that we feel that the banning of petrol - which is what the government wants to do - or the putting someone in protective custody - which the report is recommending - are not strong enough, given the serious nature and the serious harm that can be caused to a person who is sniffing petrol, and that harm can be done fairly acutely.
The CLP wants to make petrol sniffing illegal, but not with the view that, for example, at the very first instance of a person being apprehended for petrol sniffing, they be thrown into a gaol, but to have it there as a bottom line enforcement opportunity. This is so that other opportunities can be made available to the sniffer, with the hope that the threat of incarceration somewhere – and I cannot imagine it being in a gaol for a young person, but it may be a detention centre – would be such that it would be part of the pressure put on to them to make a decision to do what we would prefer them to do which is to perhaps go to an outstation or some other diversionary program.
I take this opportunity to read into the Parliamentary Record, for some element of completion here, the five dot points from the CLP’S policy titled ‘Tackling Sniffing in the Territory’. What the CLP would do is:
- 1. make sniffing of petrol and other toxic substances illegal;
2. give police the power to dispose of petrol and other toxic substances, similar to the pouring out of alcohol that is
being illegally consumed;
3. develop, in conjunction with existing health services, state-of-the-art treatment programs targeting substance abuse,
including sniffing, and investigate the benefits of establishing a residential rehabilitation facility here in the
Northern Territory;
4. legislate to give courts the power to order sniffers to attend detoxification programs, the resources for which
a CLP government will provide; and
5. legislate so that children who are sniffing can be taken into care for their own protection and so they can undergo
treatment.
Leave granted.
Ms CARTER: Thank you, kindly. I reiterate that the difference between banning petrol sniffing and making it illegal is the only point of difference that we have with regards to the recommendations in this report, and is the only point of contention between the two parties here in this Chamber. I believe that there is genuine, heartfelt bipartisan concern from all us with regards to petrol sniffing, and a strong desire by all in this Chamber and many in the Northern Territory to help.
In conclusion, I thank all the members of the committee for the work that they have done with regards to petrol sniffing and the other issues that we are looking at. My profound thanks go to Pat Hancock and Liz McFarlane for the wonderful work they have done. Pat, in particular, has been able to pull together a significant amount of information and distil from that, very succinctly, the key points into a very easy to read record which forms our report. I know she has been ably assisted by Liz McFarlane. Liz, of course, has been marvellous behind the scenes organising everything and looking after us as we have travelled the length and breadth of the Northern Territory investigating this and the other issues.
To conclude, Madam Speaker, I hope that this report forms the basis for some great work to be done here in the Northern Territory to assist our fellow Territorians in an effort to overcome the sad reality of petrol sniffing.
Mr KIELY (Sanderson): Madam Speaker, I also make my contribution, as a member of the select committee on substance abuse, to the report on petrol sniffing in remote Northern Territory communities.
I feel the chairman stepped us through the report quite eloquently and succinctly, and her contribution to this debate in tabling the report was quite welcome and refreshing. The member for Port Darwin’s contribution was very good. I will try to keep mine in the same vein.
It is, indeed, a good report and it gets to the heart of the matter. It steps through, quite logically and sequentially, the evidence that we found over quite a lengthy period. It comes down to evidence-based findings, which is a marvellous thing, and some 17 recommendations. They are all headed under different fields so that anyone picking up this document, particularly members of government, can see the direction that the committee has been heading in its deliberations on this tragic pastime which is out in the communities, and has been out in the communities for quite some time. Every now and then it makes intrusions into the regional centres and sometimes on the fringes. This is a volatile substances report as well, and it picks up a little on other sorts of inhalants that we are around the place.
Like the member for Port Darwin, I too have lived out on a community where there was petrol sniffing. It is dreadful to see children of all ages with designer Coke cans containing petrol around their necks, walking around, stoned off their faces, with glazed-over looks in their eyes. You see the kids not so much during the day but at night. They will be out on the ovals sniffing with their music going. They are up all hours causing disruption. Your vehicles are targeted because this is a source of the substance. The sniffers get to them and prise the petrol caps off, as the member for Port Darwin stated, causing damage to the car. They cut fuel lines. I had a diesel vehicle on the community where I was living. The sniffers were not too sure if it was petrol and they cut the lines and did all sorts of damage. They were in search of this substance so that they could get a high from it. I cannot really say whether sniffing is a dependency, but you form a type of dependency on it. These are habits and behaviours we see all of the time.
The Minister for Family and Community Services, particularly when she was a member of the committee, told the story about Mutitjulu with parents trying to help babies go to sleep by putting petrol in the nappies and letting the baby sniff it. That is part of the extent of the problems out bush. This is what the committee has discovered on this particular investigation. This is what the report highlights. It has been tabled in parliament and asks the people of the Territory, through their government, to address this. It is a large segment of the community that is suffering. It is a great human tragedy out there and we as a community need to address it.
This is not a black problem; this is a substance abuse problem. Substance abuse is a problem for all the community - black, white or whatever - it goes across urban, goes across remote, goes across the rural areas, and it is something that we as a community, we as a parliament, must tackle. That is why the recommendations we have made are formed in such a way.
I have mentioned before my thoughts on how we should tackle this. I will go to the issue of giving police the power, which is recommendation 6, which seems to have caused, not angst, but a different view point within the committee and within the parliament about how it should be handled. Recommendation 6 is legislation similar to that which provides the apprehension without arresting an intoxicated person under the Police Administration Act be introduced to allow for persons under the influence of petrol to be taken into protective custody. Members may recall that on 30 March 2004, when speaking to the interim report on issues of alcohol abuse, cannabis abuse and inhalant abuse, I said in this House:
- The obstacles we face as a government in taking any meaningful action with respect to petrol sniffing is that the
act of petrol sniffing is not illegal in the Northern Territory. That means that the police and other appropriately
authorised persons have no legal basis for interfering with petrol sniffing of addicts except possibly in the case
of parents disciplining their own children.
We need to bite the bullet on this by enacting legislation which will make petrol sniffing an offence, thereby
arming policy with other appropriate authorised interveners with the legal authority to take action to stop the
self-harming activity, rather than focussing only on offences committed in the course of obtaining petrol, or in
criminal behaviour unleashed once the petrol sniffing takes a hold.
When I said that, the member for Araluen jumped up and said: ‘Bravo, marvellous, this is just wonderful’. She even quoted me in her speech at the introduction of the Summary Offences Amendment Bill (no 2) on 19 May 2004 saying:
- Members will recall during the last sittings that members of the substance abuse committee spoke at some length
about the effects of sniffing. Members will recall the unusually eloquent speech made by the member for Sanderson
on this issue and one which I congratulate him for then and congratulate him again.
I do not know what has happened in the intervening time because when we were debating the Summary Offences Amendment Bill (No 2) last Tuesday, the member for Araluen started calling me a cretin and a fool, and launched into me as she is want to do every now and then. Somehow, between then and now, I seem to have fallen off my perch. I am used to the member for Araluen climbing into me in all sort of different ways, but it just goes to show what a difference a day makes, doesn’t it?
It is important to note that I do not resile from those comments, but they were never meant for interpretation the way the member for Araluen did. I did not then, and I do not now, believe that we should lock people up for this. As the minister said, you cannot get around the fundamental principle, which is one of the cornerstones of democratic society, by simply labelling an illness a crime and sending people to prison as a punishment for being sick. And that is what these people are. They are ill, and we should treat it as an illness. This is what recommendation 6 of the committee acknowledges: that petrol sniffing is an illness and we should treat it as an illness. We should not treat it as a crime and lock people up. The member for Araluen got a bit carried away with it all and jumped on it.
I will now go to the dissenting report which is all based around recommendation 6. The member for Port Darwin explained the reasons why the dissenting report would be in there. It is interesting to see that it is the Country Liberal Party parliamentary wing dissenting report; it is not the opposition members dissenting report. I think they were a bit boxed in on this one.
A member: We were not.
Mr KIELY: Well, these are my thoughts. These are my thoughts and they are certainly not the thoughts that have been put to me. I, by no means, attribute any of those statements there to the opposition members. They did not say that. These are my thoughts and let me clarify that for any opposition members on the committee.
In her contribution to the Summary Offences Amendment Bill (No 2) last Tuesday, the member for Port Darwin stated:
- The CLP do have a policy with regards to petrol sniffing and it is titled Tackling Sniffing in the Territory. And the
reason we have this policy, and I particularly point this out for the interest of the member for Nelson, is that the
substance abuse committee has now been running for nearly three and a half years.
- For quite some time now, a number of us have been calling for this committee to actually wrap things up and come
out with a report and, as the member for Nelson knows, it has been hard getting some of these reports. With regards
to alcohol, the government itself had to step in, with the Treasurer formulating his own alcohol committee and that
came up with its own report.
- Now, with regards to petrol sniffing, the CLP got sick and tired of waiting in the face of the tragedy that it is causing
in the Northern Territory, and many, many months ago, earlier this year, the member for Araluen put forward in this
House, during a General Business Day, her legislation with regards to petrol sniffing. Not surprisingly, after that
occurred, the substance abuse committee, under the new chair, decided to wrap things up with regards to petrol
sniffing and come to some sort of conclusion. That was the reason why we did it, because we sick of waiting for
something to happen. We needed a policy and, by golly, we have done it.
About the only thing I agree on is that we need a policy. Members will notice that the member for Araluen submitted her bill - I think, it was a month, the following sittings - after we did the interim report. She rushed in because she could see the way that the committee was heading and, as she has done on many occasions, she has profited by other people’s grief and has jumped in and made out that she is the political saviour.
We have seen it on petrol sniffing, we see it in all the bills we have recently introduced about child pornography and protecting the rights of victims of sexual abuse. The member of Araluen has form. She also did it in her portfolio of Tourism. She was always trying to claim credit for things that had already commenced.
Madam SPEAKER: Just get back to the report, member for Sanderson.
Mr KIELY: Yes, Madam Speaker, but it builds on the basis of …
Madam SPEAKER: Member for Sanderson, back to the report.
Mr KIELY: It builds on the basis of why we see this dissenting report in here. The member said that the CLP had to rush out and get a policy and put it in place ‘because we were sick of waiting for something to happen’. If we have a look at the report we are tabling tonight, Petrol Sniffing in Remote Northern Territory Communities, and then we go to the Senate Select Committee on Volatile Substance Abuse 1985 on which sat two very well known senators, one from either side, from the Territory, and we had a look the heading Causes, they have noted:
- Some sniffers that the committee spoke with unanimously said: ‘It was for fun’ and many adults agreed with
this but stressed that other factors were also involved. The two most commonly being cited were peer pressure
and boredom, including lack of encouragement, stimulation or perception of things to do. Other causes included
hunger, negative or conflicting role models, unfulfilled need on the part of adolescents for attention …
It went on to list a range of causes and responses. This is from 1985. As we have heard time and again, it has been the CLP, here for 27 years until 2001, that had carriage of passing of all the laws and setting the direction for this community.
In 1985, this comprehensive report on petrol sniffing was out and about, and it took until some four months ago, for the CLP to say: ‘Oh, my dear! Oh, boy! We have a real problem with sniffing. We have just discovered it. We are in a hurry. This committee is not working hard enough. We have to act quicker than the government on this’. It just does not wash, Madam Speaker. Since 1985, we have clear, conclusive evidence that petrol sniffing has been a problem. The member for Macdonnell, who was a serving policeman prior to coming into this place some seven years ago, would have encountered petrol sniffing. Three years ago, before they went into opposition when he was a member of government, he had been the member for Macdonnell for four years. He would have had to have seen sniffers on communities and known the disruption and the plight of the people on those communities. He would have to have seen it and if he did not, he stands condemned. If he did, he stands doubly condemned because he did not do anything.
You have a sitting member of a bush seat, out there, who is an ex-policeman, who one can assume knew what was going on out there, and did nothing. Did nothing. I say ‘did nothing’ because where is the evidence that he did anything? Where is the evidence?
To come into this place and say we have this great bill and we are going to put it in because we have identified there is a real tragedy out there, is wrong. He is wrong and the people of the Territory need to know that. They need to know why the CLP was so quick to try to gazump …
Madam SPEAKER: Member for Sanderson back to your report, please.
Mr KIELY: I am back to the report, Madam Speaker: why they gazumped this committee’s report; why they jumped last week before we tabled this report.
It is also interesting that in this report it says that:
- While there is no evidence to suggest that those poor of intellect are likely to sniff petrol there is strong evidence
that sniffers become poor achievers at school and that chronic abuse of petrol leads to significant decline in
cognitive functions occurring as a result of lead deposition in the brain.
It goes on to say potential other responses:
- The committee concluded that the act of sniffing petrol …
- … should not be made a criminal offence and recommended that no legislative action be taken to create such
an offence.
- The committee recommended that where communities desire external control to be effected over chronic sniffers
they be alerted to the care and custody provisions of the state child welfare legislation.
Once again, we have a body of evidence that, back in 1985, communities did not want their kids locked up. We found that out when the committee travelled around in 2002-03. It is clear in there. It is clear in other reports. In other jurisdictions such as Victoria, Queensland, Western Australia and other countries such as New Zealand, they do not want their kids locked up.
If the member for Araluen was so keen to help these ill people, and to help fix the dysfunctionality of the affected communities, why then did they bring in sentencing provisions in their proposed bill? Why? If, as they stated, the intention is not to lock up anyone, why have it there? It just does not wash. It is mandatory sentencing through the back door. We are not having it. The committee is not having it. We do not see it in there. We do not see it as a need.
Once again, the majority of the committee has found - and I will get back to it - and is of the belief that locking people up is not the way to go. All the committee, I believe, because it is under recommendation 6, and it is how we treat it, which is being contested in a dissenting report, do believe that sniffing is an illness.
I commend the secretariat staff, Pat Hancock and Liz McFarlane for their work. I also thank fellow members of the committee. It is, arguably, the best committee to work on in the parliament. I believe the opposition members and the government members do try their best to work together. We do work together, and that goes for the current members. It also goes for the past members. The desire is there. It is a bit unfortunate about the dissenting report. We do not usually see it in this committee. I believe that events overtook the committee on this one. Once again, I will state these are my personal views, Madam Speaker, they are not the views of the opposition members, but I do believe that there were some external pressures which helped process in the thinking pattern and why we got to a dissenting report.
That being said, it is a pleasure to work with the four members of that committee. There is still much work to do. The sniffing will be picked up. The recommendations are there. Government will have a look at them. Government has already said it will provide $10m over five years with $2m up-front. So no, there has been no actual policy rolled out, or bill rolled out. The framework is there. But the government has shown up-front that they have been waiting for this report to come down so that it could act. This is the proper way to do things: wait for the report; analyse the recommendations. Government has said it has the money up-front, now we will get to work on it.
The committee does not know which way the government will act on it, or what recommendations it will pick up. I, as a committee member, am very encouraged by it. I certainly hope the government goes with recommendation 6 as it stands. I do not hold with the dissenting report - never did, never will. Never was it my intention that people be locked up. The CLP can make mischief with it as much as they like. I stand by what I said here tonight and the other month: let us not have mandatory sentencing through the back door. If we lock up sniffers - detention for little Aboriginal kids on communities – we are right back to where we started from. It is a sheep in wolves clothing; let us not go there. Let us not disguise it. Let us admit that we have had this problem for over 20 years. Let us get the saying right, I think the member for Johnston was saying. Let us call it what it is. We have a terrible problem out there. Let us get on with the job; address it, and not make political gains and try to grandstand on the back of some poor families’ and individuals’ misfortunes, because that is what we have been seeing from the member for Araluen, who has a dreadful habit of doing it time and time again.
Mrs MILLER (Katherine): Madam Speaker, I have to say that the member is quite entertaining.
Tonight, I speak to the report by the Select Committee on Substance Abuse in the Community relating to petrol sniffing. I have been on the select committee since February 2004, which is a very short time in comparison to the majority of other members. However, it has been a very interesting time.
Substance abuse in our community has long been a grave concern to me, so I welcomed the opportunity to join the select committee to be able to contribute to the findings and, hopefully, make a difference to such a horrendous problem that is afflicting so many young people in communities throughout the Northern Territory and in other parts of Australia.
Having read through numerous findings that have been collated by the substance abuse select committee before my time, it is obvious that the topic we are reporting on today – the voluntary inhalation of volatile substances - has been of concern to not only Territory governments but federal governments going back 20 years. I hope that this government will take the findings of this report and action it very quickly.
The committee visited many regional and remote communities before I was appointed, so my knowledge has been gained through reading the findings, briefings and listening to other members experiences, as well as what I have witnessed myself over the years.
There is no doubt that petrol sniffing is considered the poor man’s drug. It is also certain that boredom contributes to this practice, which is very worrying. However, it is an area that can be addressed. It highlights the problems that remote communities experience with their high numbers of petrol sniffers. In not having an economic base from which to operate, they have nothing to work towards - nothing different from day to day. Petrol is cheap and easy to obtain; in their eyes a great way to escape the monotony of day-to-day life. It is very distressing to witness petrol sniffing when you know just how much damage is happening to the inhaler, and also very frustrating at not being able to step in, at the moment, and to do something about right there and then.
I have some very dear friends, John and Judy Neilson. My friend, Judy, has never lived on a community before and, for the last four months, they have been relieving at Amata Community general store which is the Pit Lands in South Australia. They have been helping some friends out while the friends had a break. It has been the biggest shock of my friend’s life to witness petrol sniffing daily, and very distressing to her and to her partner. She would dearly love to see something happen.
As parliamentarians, we have a responsibility to ensure that sniffers are protected, and we need to do that through legislation to give authorities the power to get in and help these people. We need to ensure that they have the inhalant taken away, and they are taken to a safe place - either their home or to a designated area where they will be taken care of. If it is necessary to remove the affected person, they should then be moved into a program that would assist in their recovery from petrol sniffing.
On many occasions, comments have been made to me about the role and responsibilities of petroleum companies in addressing petrol sniffing, in the same way that there is an expectation on liquor outlets to take some responsibility for the abuse of alcohol. When the chair of the substance abuse committee, the member for Nightcliff, and I were in Canberra to attend another conference in June of this year, we took the opportunity to meet with members of the petroleum industry of Australia, along with Pat Hancock. We had planned to take a softly, softly approach with these members to see how they saw their responsibilities towards petrol sniffing, or if they even thought they had any responsibilities. We were very pleasantly surprised to hear that one particular petroleum company, BP, was well aware of the problems. They had visited a particular community in Central Australia and witnessed for themselves the suffering of addicted people and the effect on their families and the community in general.
As a result of that visit, they felt a responsibility to tackle the problem, which is highly commendable of them. They have implemented a rehabilitation program, which has been running for over 12 months prior to our meeting with them. The results of their achievements, even in that short space of time, was heartening; more so, that they were not taking a rush-in, rush-out approach. They are prepared for ongoing support and, in addition, are investigating other ways of reducing the opportunities for petrol sniffing. I congratulate the national petroleum company for taking the initiative and becoming involved in this rehabilitation and recovery program and would hope that, with the success evident in this first community trial, these programs can be extended to support other communities in the future.
With the list of recommendations that the select committee has provided to government to consider, and which are hopefully taken up, I know we can make some serious in-roads with the problem of petrol sniffing. It will not be easy to do and will take serious, long-term commitment by government to reduce the problem. The cost to the community of caring for a person who has serious brain damage from petrol sniffing is estimated to be around $160 000 per year, so the cost of any programs implemented by government to address this serious issue are well warranted and justified.
I support the comments of my colleague, the member for Port Darwin, in relation to the policy that the CLP has developed and I will not repeat that policy because she has read that into Hansard.
While the topic of this report is petrol sniffing, I would also like to talk about another problem that we have, which is alcohol consumption within the Territory. Excessive alcohol consumption is the most serious of problems that we have in substance abuse because of the effects on so many families and communities throughout the Northern Territory. I speak from my experiences with antisocial behaviour, which is proportionate to public drunkenness that we, unfortunately, witness in Katherine and in other communities in the Northern Territory, and have been doing so for many years. There is barely a day goes by in Katherine without tourists, businesses and their customers in the main streets and along the river bank in Katherine, having the unfortunate experience of witnessing drunken behaviour. Unfortunately, in a lot of instances, this drunken behaviour is also associated with violence. In at least two cases of which I am aware, babies were left on footpaths by parents who were incapable of looking after them. Fortunately, in both of these cases, passers-by rescued the children and kept them in safety. I dread the day that a child will be left in a location where they are not visible and will not be rescued.
I have, over many years, spoken out in frustration about the lack of action in addressing antisocial behaviour and the economic impact that this behaviour has on communities. Over the 10 years that I was operating Red Gum Tourist Park and involved in the tourism industry, it was a constant concern of visitors who, when driving into Katherine and other regional towns in the Northern Territory, would get a very bad first impression. They would express their feelings to us and they would range from disgust, fear, anger, dismay, disbelief and pity, and it does not matter what we say to them - that first impression always counts. A business owner who repairs caravans, campers and trailers in Katherine told me just recently that when repairs are required, invariably he is asked if they can be done that day so that they could leave town before dark. Not a positive impression at all, and one that gets passed on to other travellers when they meet elsewhere.
The Minister for Community Development talked today of the Community Harmony program that has been implemented in Katherine first of all, and how successful it is. There is no doubt that some of the programs are working to some extent and that is a great thing. I know that we do have to be patient to have better outcomes from some of the others. The issue that concerns me, and always has, is that these programs only address some aspects of the problem that the regional communities are suffering. Whether this government wants to acknowledge it or not, there needs to be, in addition, much tougher programs that pick up the people who do not fit into any of the Community Harmony programs or just do not want to fit into them. I could go on into this area further, but I will do so at a later date.
I acknowledge the excellent work that is being done in Katherine through the Neighbourhood Watch program, which has only been in Katherine for a few short months. Their presence and assistance in addressing urban issues that Katherine faces is greatly appreciated and is being embraced by all sectors of the community. I am very confident that Neighbourhood Watch will, with the cooperation of the community, have very successful outcomes in Katherine.
I express my disappointment at the way the select committee on substance abuse has been treated by the Northern Territory government, with the announcing of the recommendations on petrol sniffing by the Minister for Family and Community Services prior to the recommendations being tabled in this Assembly. I consider this a slap in the face to the hard-working committee who have put in a concerted effort over the past three years. I appreciate that the Minister for Family and Community Services was the Chair of this committee until the beginning of this year, but she is not now. I once again my express my disappointment at the action she took by going to Alice Springs to make this announcement prior to the recommendations being tabled.
Unless I misunderstand, select committees are established by government to investigate problems and to make recommendations for government to act upon. I hope that these committees - which take up a lot of people’s time over a long period - will, in the future, be afforded the respect of waiting until the Chair has handed down the report.
I fully endorse the 17 recommendations that have been handed down in this report. I, like previous speakers, congratulate Pat Hancock and Liz McFarlane for the extremely hard work these ladies do behind the scenes. They have been a great support to the committee. It has been a pleasure to work with the members of this select committee on substance abuse to date, and I look forward to continuing in the future.
Mr WOOD (Nelson): Madam Speaker, I do not want to repeat what other members have said. The Chair of the committee, the member for Nightcliff, summed it up extremely well. Hers was an excellent report, and I do not intend to repeat that. If people are looking for a good summary of this report, I suggest they read the member for Nightcliff’s report in Hansard.
I will say a few things, of course. We all know that petrol sniffing is major problem in Northern Territory communities, remote and urban. People have to realise that this committee has had to deal with three issues during its life over the last three years - alcohol, cannabis and petrol. I know that there was some dissatisfaction in the speed at which this committee came to conclusions about where we should go. People should realise that we had to travel many miles, go to many communities and have many meetings, and we had other work to do, like most parliamentarians. We were dealing with three issues at the same time. Some of that workload was taken away from us when the Alcohol Framework was put in place and that gave the committee some more time to concentrate on the two other issues of petrol and cannabis.
Looking back at my travels around the Territory as part of this committee, I would like to record some of the impressions I had. Most communities I visited were in a state of not necessarily total breakdown, but they were fairly depressing places to visit. Perhaps that is symptomatic of the problems we have. We are dealing with petrol sniffing, but are we dealing with other problems and petrol sniffing is just one of the symptoms of what we see? Many communities certainly had houses in states of disrepair; they were not that tidy. I am sure that years ago they were much better than they were. I think what we were seeing was symptomatic of a much larger problem, that is not only a lack of self-esteem in one’s community but, I believe, a move backwards from years gone by.
The reason I say that is because, years ago, we had full employment. We do not have full employment now. Years ago, we had vegetable gardens and other forms of industry. In many places, we do not have that any more. Years ago, most of the kids went to school. I am afraid that does not happen so much these days. I feel that, although we have all these recommendations before us, if the Commonwealth does not step in – because there is much funding required - we are not going to get anywhere. I will still say that employment is the key. It can be followed by education and good housing. However, if we have people sitting down with nothing much to do, boredom, as one of the speakers previously said, takes over and people get into trouble. People are looking for other thrills and petrol sniffing is one of those results that we see now in our communities. We have to give people gainful employment. We have to give people goals. At the present time, we are not giving them that. That is going to take a lot of work. It is going to take a lot of work from the Commonwealth, from the Territory and from different communities throughout the Territory. There has to be a will to do it, otherwise we will just keep pouring good money after bad.
One of the other impressions I got was our trip to Yuendumu. That will stay with me for the rest of my life. Yuendumu, as you know, has a program to help petrol sniffers, where those petrol sniffers are taken out to Mt Theo, which is about 45 km to 50 km from Yuendumu. It is not exactly within walking distance of Yuendumu, so it is not a bad place for young petrol sniffers to be taken. When we went there we were shown two saucers: one with petrol and one with water. The one with petrol had a lump of butter in it, and the one with water had a lump of butter in it. As you would realise, petrol and butter do not really mix, and the butter just fell to pieces. That was to try to show people, including us, the effect that petrol had on the brain. The brain just about dissolved. I do not know who thought up that method of teaching people, but it certainly leaves an impression. I gather Mt Theo and Yuendumu have some problems at the moment, and I hope they can overcome those. Mt Theo has certainly been put up as the model – at least one of the models – for trying to overcome some of the issues of petrol sniffing.
I will just take a slight jump from my notes when I talk about Mt Theo, and look at the one contentious issue that the select committee has had to deal with, and that is the manner in which we approach intervention when it comes to people who are petrol sniffing. As recommendation 6 says:
- that legislation similar to that which provides for apprehension without arrest of an intoxicated person under the
Police Administration Act be introduced to allow for persons under the influence of petrol to be taken into protective
custody.
The minority findings of the two CLP members - which I believe is the way it should be worded rather than the ‘parliamentary wing’s’ version of events - is to make the sniffing of petrol and other toxic substances illegal. I do not think we are too far apart. In fact, it is a pity that we could not have actually sat down a little more and worked through that. I imagine the CLP would have had a problem with that, simply because the parliamentary wing had already set the policy in place. That would make it fairly difficult for those members to come on the committee and discuss and work through those issues and see if we could have come up with some common ground because, basically, they were repeating party policy. I suppose, unless they have been given permission to move from that policy, then their hands are tied.
My understanding of the Police Administration Act where people can be apprehended without arrest, is that it was not just a matter of saying: ‘We will put them in the lock-up or safe house or whatever for two days or one day’. That recommendation has to be built on, and we have to look at the possibility of court intervention with the families and with the health department, so the court can decide that this person should be taken, for instance, to Mt Theo. Mt Theo, at the present time, is successful because the community or the families say: ‘We support it, and that child will go there to help that person overcome the problems with petrol sniffing’.
All I believe this recommendation is doing is setting the framework for that to occur. It is giving it some legal basis where, if it requires an order from the magistrate to say this person must go to some drying out area, some safe house, then you have the legal backing to allow that to happen. That is why I do not think there is a great difference between the two.
My other reason for supporting that particular recommendation is Dr d’Abbs. When I asked him whether he thought that the arrest of people for petrol sniffing would be a good suggestion, he said no. He pointed to civil apprehension laws in Queensland, and believed that that is the way we should go. Dr d’Abbs is a person who has long experience in the Northern Territory with regards to substance abuse. It is certainly far more experience than I ever had. I do not regard him as a quack; I regard him as someone who is seen, in communities, as having long experience in these matters. I took his advice, and that is one of the reasons I also supported this.
Another reason is that even though it has been said that although people would be arrested, they were not going to be put in gaol and they were going to be given some juvenile diversionary programs, not everyone is a juvenile. Petrol sniffing goes further than that. As a 20-year-old person would not be a juvenile, then there is a fair chance they could be arrested, charged and put in gaol unless there was some other program established. The Police Administration Act is not distinguishing between juveniles and older people; it is just saying those people who are intoxicated with petrol can be picked up. I believe from then on there should be some intervention from the courts to see what the next best approach is.
As I said, I do not believe we are too far apart. It is just a pity there was a bit of politics that came into it. Obviously, some people felt we were too slow, and I suppose that is a fair criticism. However, there were some reasons for that happening. The reason the government decided to jump in early was because it could see one side coming up with a policy and it needed to make sure it had an answer to that. Of course, all this happened before the report was brought down today. That was a little disappointing.
Be that as it may, we are not going to concentrate too much on those issues because the important thing is that we need to support these recommendations - the government needs to support these recommendations. I believe it should be taking the No 1 recommendation to the Commonwealth. The No 1 recommendation talks about the need for the federal and Northern Territory government services to be closely networked to ensure their respective petrol sniffing programs and services are coordinated etcetera. That is the key; we have to start putting a combined effort into this problem.
We also need the federal government to review their CDEP program, as in recommendation 11. I know my colleague from Barkly and I believe that we should be aiming at full employment on communities. That is a key and yet we have gone nowhere. We need to ask the Commonwealth government to seriously look at trying to make sure there is full and gainful employment on our communities - another area that we have to work together as governments and that is extremely important. I spoke last night about the delivery of sporting and recreational programs as mentioned in recommendation 11. That, too, is important but we must make sure those people working in the field are working at the times when they are needed – not 9 am to 4 pm, but 4 pm to 10 pm, and on weekends as well. Whatever hours they work, they have to be worked around when the community needs them rather than a strictly public service 9 to 5 approach.
There are many other recommendations there with which I agree. I am especially pleased to see No 16 which is about the Northern Territory and Commonwealth governments working with industry to encourage further research in developing fuels which are non-intoxicants. I have believed for a long time that we must involve industry. There is nothing wrong with going to see industry and saying: ‘We are not blaming you about your product. Your product is a perfectly legal product that keeps the world going. There are problems with that product, that is petrol, and is there any way that you can help as a good corporate citizen’. The member for Nightcliff, the Chair, has already spoken about how BP is already running programs and we did not know anything about them. That is fantastic and I hope the good work that BP is doing is eventually well and truly publicised because we did talk about big multinationals and big companies and probably say, oh yeah, making big profits.
Here is one company trying to do something for our community in this area. I hope some of the other petrol companies also help out because it would not be much good if one petrol company eventually comes up with a product that is its own product and the other companies are still selling their own brand of petrol which is still causing problems. Hopefully, petrol companies can all get together and work to achieve an outcome which would be good for all these communities.
I do not have much more to say as most of this was said earlier. I will make one other comment on the dissenting report, of which I made a note here. I actually agree with the four out of the five policy dot points that are in the report. I certainly believe police should have the power to dispose of petrol and other toxic substances similar to pouring alcohol. We need to develop state-of-the-art treatment programs because it is no good either arresting people or apprehending people if you have nowhere to take them. Dr d’Abbs mentioned that in his report. You have to have these places that the police can take them because we know there are some difficult issues with nabbing petrol sniffers and, as I mentioned previously, they can get a heart attack or cardiac arrest if chased. One has to be very careful and might have to be trained in dealing with these people.
The CLP has said to legislate to give courts the power to order sniffers to attend detoxification programs. That is exactly what I was saying before, but that you go from the apprehension to a judge who will make that decision, along with other people who will help the judge make the right decision we hope. Also, legislate so children who are sniffing can be taken into care for their own protection so they can undergo treatment. I do not have any problem with that either because we must protect children. Part of our debate today was about protecting children and that is important.
I do not wish to dwell on that any more. The report is self-explanatory. Anyone who wants to know what is in here just needs to go to the recommendations sections and see what evidence was put forward to back up those recommendations. I hope the government will make a long-term concerted effort, rather than a three-year program, to ensure that we have the will to take on the issue. It will not change overnight.
I also thank Liz, Pat and Kim for all the work they have done in some fairly difficult circumstances. They sat under a shady tree with wires all over the place and dust blowing and sometimes could not hear what people were saying. I remember once we had the women in one area and the men in another. They might have recorded the women’s meeting, but they did not record the men’s meeting and we had to take notes. They had some interesting places at which they had to record meetings.
I thank Marion Scrymgour and Chris Burns, the original chairs; they did a terrific job in the time they were on the committee. I thank present members, Sue Carter, Len Kiely, Elliot McAdam, Fay Miller and I should not forget that Richard Lim was on the committee for quite a while.
If nothing else, I have learnt much being on this committee. It gives you an opportunity to see the Northern Territory, where people live, the remoteness in which they live. I have been to Aboriginal communities but, generally speaking, after you have been to Lajamanu, Daly River looks like it is just down the road. There are some places that are a long way away and they have special conditions which must make it difficult for government to deal with.
I thank everyone involved in putting the report together, all the members of the committee. I hope people will read this, and I hope the government will do something practical and positive about the recommendations. Hopefully, we can come back in 12 months time and see how many of the recommendations we have acted on. There is no use having recommendations if there are no outcomes.
Mr ELFERINK (Macdonnell): Madam Speaker, it was not my intention to contribute to this debate, but, sadly, debate took a direction that forces me to make a few comments.
Even when there is a dissenting report, occasionally sides can agree to disagree. As the member for Nelson pointed out, the difference is certainly not enormous considering the policy approach. Nevertheless, while everyone is almost agreeing, I find myself, who has had nothing to do with this report whatsoever, under attack from the member for Sanderson. That is fine; that is his right. I have no major problem with that, but it does give me a right to respond to his criticism.
I did assist with drafting the policy for the Country Liberal Party in relation to petrol sniffing, and he said I should have acted on it more quickly. Perhaps he is right. When one launches into an attack - and this is the advice I give the member for Sanderson - I suggest that it is smarter to do it from a position of strength.
The member for Sanderson said it has never been his policy at all that petrol sniffing should be made illegal. That is him putting distance between the ALP’s position and the CLP’s position. That is fine. I do not have a major problem with that. However, I draw members’ attention to a speech that he made on 30 March this year. I will quote the appropriate paragraphs:
- The obstacles we face as a government in taking any meaningful action with respect to petrol sniffing is that the
act of petrol sniffing is not illegal in the Northern Territory. That means that the police and other appropriately
authorised persons have no legal basis for interfering with petrol sniffing of addicts, except possibly in the case
of parents disciplining their own children.
We need to bite the bullet on this by enacting legislation that will make petrol sniffing an offence, thereby arming
police and other appropriately authorised interveners with the legal authority to take action to stop the self-harming
activity rather than focussing only on offences committed in the course of obtaining petrol or in criminal behaviour
unleashed once the petrol sniffing high takes hold.
My advice to the member for Sanderson is simply this: if you are going to come out of the corner swinging, by all means do so; but do not do it with one hand tied behind your back. That is what he has done. Okay, he can attack me; I do not have a major problem with that. But he has done a position change which, in Olympic Games terms, would be a triple somersault, two-and-a-half backflip pike, of backflips. The attack is, quite simply, stupid because, if he has forgotten what he said a few months ago in this House, then he has a condition which must be parallel to early onset Alzheimer’s. Or he has simply come into this House and, by standing here and saying, ‘I have never held this position’, he has sought to misinform members, and people of the Northern Territory.
I wonder, in terms of the debate, what is the smarter approach? The smarter approach would have been simply to say: ‘I once had a position and I have changed my mind’. But to try to bluster and force your way through, and say that I never said that, and those sorts of things, when he quite clearly did – and he is on the Hansard record – just demonstrates a level of arrogance that will not be appreciated out there and is not appreciated in here.
My advice to the member for Sanderson is, if he wants to belt me, by all means go ahead. But for pity’s sake, do not do it so you end up walking away from this Chamber looking like a total goose.
Mr McADAM (Barkly): Madam Speaker, this evening, I too speak in respect to the Select Committee on Substance Abuse in the Community’s report on petrol sniffing in remote Northern Territory communities.
I, too, applaud the chair of the committee for a very comprehensive and professional response. I agree with all the other speakers. She has covered it very eloquently. Accordingly, I will not be dealing with all the issues in respect of the report. I will deal with some of them.
Much has been said and much has been written. There have been any number of research projects, and I suspect that there will be many more into the future. I do not mean that to be interpreted in a negative sense, but in the hope that we will change our mindset in how we deal with, and how we respond to, in the main, our young people in the bush, not only in respect to petrol sniffing, but to a whole host of social issues which impact upon them on a daily basis.
A closer examination of the body of the report, and I refer to page 20, where the very respected Jawoyn Association in Katherine gave evidence regarding substance abuse to the House of Representatives Standing Committee on Family and Community Affairs. I believe this is very much indicative of some of the conditions that apply in indigenous communities. I do not know exactly when this evidence was given, but I believe it is something which is still very familiar right across the Northern Territory. I will just highlight some of the issues and problems that impact on our people, and particularly our young people in the bush.
I refer, in part, to their submission, where they refer to overcrowded circumstances, where you have extended family groups of eight to nine people, ranging from babies and school kids, through to aged pensioners, living in a three-bedroom house. It goes on to describe some of the conditions in that house; how it is noisy most nights of the week. It describes how most adults are employed or under-employed on local CDEP projects. It describes how much of the money that comes into that household is spent on grog. The kids are mostly hungry, which makes it impossible to go to school the next day, and some of the older kids in the community drop out of school, either through truancy, or there is a lack of secondary education. Most of those kids that I have just described are too young to go into CDEP.
It describes the importance of the role of older people in that community, in that household, where there is pressure placed on grandma to get the dollars so that members of that extended family can go into town and get on the grog. It describes the domestic violence that occurs in that household. It is not a very pretty picture at all, and is something that I do not think we should be proud of. It is something that provides the impetus to us, as a government, to work towards dealing with some of these issues.
I heard some of the other speakers tonight talk about experiencing some of the traumas and emotions that go on in an indigenous community. I too lived in an indigenous community, probably in excess of some 20-odd years ago. That community was in South Australia. I will not identify it. I worked there for a period of three years and became very close to that community. There was no CDEP on that community at all and there were very few non-indigenous people. The community was very much in control of its own destiny in those days. Grog was minimal and, of course, there was not any ganga in those days. However, there was petrol sniffing.
I experienced the devastation that can occur to a very tight-knit family. There was a man who was married and had three children. That particular person was the hardest worker I have ever known - black or white. He would wake up at the crack of dawn and be out there pulling bores. He would be out there fixing yards and knocking off at evening - a very hard-working man, a family loving man; he loved his kids. The scourge of that community was petrol sniffing and, no matter how much he provided support, two of his boys took up petrol sniffing which brought him a great degree of sadness and concern. He tried everything possible he could do to address that particular issue, to the extent that he would flog his kids almost to an inch of their lives. It was all to no avail because both of those boys died because of petrol sniffing. A few years later, he died. I am not suggesting in any way that it was the reason but I know he took up drinking. He would often say to me he would despair of what petrol sniffing did to his two young boys.
I just relate that to this parliament because it is a very insidious social condition that impacts upon families. One of the things that concerned me at that time, was that we all knew it was going on - when I say ‘we’ I mean those people who had relationships with government agencies, not here in the Northern Territory but in South Australia - and the standard response at that time regarding all the issues that I have just described was that, ‘It is a council responsibility, you deal with it’. If it was not that, it was, ‘A community responsibility, you deal with it’.
It has become very clear over a long period of time that that mantra has continued to be espoused by certain government agencies right throughout Australia. It is very clear that the communities and councils do not have the capacity to deal with petrol sniffing. It is for this reason that I believe that some of the recommendations in this report go part of the way to addressing the issues of petrol sniffing.
I would just like to refer to some of the recommendations. I refer to recommendations 3, 4 and 5. To summarise them in part, it says that interventions be geared to the specific needs of individual communities and developed in consultation with those communities; that teams of trained workers respond quickly to support communities to implement intervention strategies as the outbreaks occur and not to sit back and talk about it and say how are we going to do it - not to throw a blanket across the responses in regards to how they deal with an issue, but to get in there and to actively work with that community almost on an immediate basis, as the problem arises – and that, of course, being petrol sniffing. Most importantly, this recommendation also suggests that the intervention strategies include training of and support for people within that community.
That is something that we have to look at very clearly: how we provide that on-going support. Much of the training that goes on in indigenous communities these days is sporadic. Many of them are based on the very short term and I do not think that on many occasions, they are hitting the target. We really need to re-think how we do that. Those three recommendations go part of the way to addressing the issue. I sincerely hope that it will be taken up and that there will be a specific coordinated response targeting immediate demands as required by the community.
The member for Nelson previously mentioned the CDEP program. I am a great supporter of the CDEP program. I believe it has some real potential and real opportunities. It is certainly limited in some of the communities where petrol sniffing exists because just by the very nature of those communities, there is not a strong economic base. They cannot link it to other economic drivers that perhaps places like Tennant Creek and Katherine can, where they do work well. Recommendation 11 talks about the Northern Territory government lobbying the federal government to review the CDEP program. It is very timely, particularly with what has happened to ATSIC and the fact that the federal government does not really know what they are doing about indigenous issues, particularly employment. It is very appropriate that we have a look at that.
Recommendation 12 is something that has been very dear to me and that is the sports and recreational programs out in the bush. Reference is made to it in the report. I am glad to say that some of the sports and recreational officers are now actually working different hours trying to respond more to the communities’ needs. I have raised it in this House, by way of a suggestion only, that sport and recreation has a great linkage with the education system, with schools in the community. Somehow, we have to ensure that that occurs. Tomorrow the Masters Games are starting in Alice Springs, which is a great event and is a tribute to all those who are involved in it. It is just a thought but why cannot we have youth games in the regional centres, say Alice Springs, Katherine, Tennant Creek and somewhere in Arnhem Land? Kids from those communities - maybe one of the conditions is that if you go to school you participate in these event - could come in for two or three days and participate. Obviously, leading up to that those kids would have to do training in a whole range of different sports. It is something that is worth looking at.
There are a couple of other recommendations that are worth pursuing on behalf of the committee, being that federal and Northern Territory government services be closely networked to ensure that their respective petrol sniffing programs and services are coordinated. Coordination is very important and it is important that the Commonwealth government provides those dollars.
In conclusion, Madam Speaker, I thank all members of the committee who worked very hard. I thank the chair for her leadership, and minister Scrymgour, who was previous chair of the committee.
I want to say a couple of things about the member for Macdonnell’s comments. He said he was part of developing the CLP policy, and that is good and he deserves credit for it. However, it is about seven years too late. It is something that he, as a member, had ample opportunity to address when he was first elected. He was part of the government, but for reasons unknown to us in the House and to indigenous people, the CLP chose not to act. I get a bit angry and frustrated when people talk for the sake of talking because they believe that they can justify themselves by their lack of action.
I say to the member for Macdonnell: if you suggest that the member for Sanderson had one had tied behind his back, I respectfully suggest that you had two.
In conclusion, Madam Speaker, the member for Katherine made reference that the Minister for Family and Community Services saw fit to go to Alice Springs and announce a $10m program for petrol sniffing. It is an action that should be applauded. It shows commitment not only by the minister but by the Martin Labor government in respect of being serious about addressing this issue. For the member for Katherine to consider it a slap in the face, I say that I would be happy to be slapped in the face by a $10m cheque any time.
Debate adjourned.
SPECIAL ADJOURNMENT
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Assembly at its rising adjourn until Tuesday, 30 November 2004, at 10 am or other such other time and/or date as may be set by Madam Speaker pursuant to Sessional Order.
Motion agreed to.
ADJOURNMENT
Mr VATSKALIS (Mines and Energy): Madam Speaker, I move that the Assembly do now adjourn.
Madam SPEAKER: Be very quick.
Mr VATSKALIS: I shall be very quick, Madam Speaker. I just want to make a comment about the mango industry in the Territory, a very important industry.
The Northern Territory mango harvest has started, with large volumes anticipated for the next three to four weeks, and volumes expected to sharply increase in late October, with peak volumes in early November and slowing in late November. Although Sunday night’s and yesterday’s storms had some effect on some crops, I do not think there will be any significant effect on the overall harvest.
With a significant increase in the number of young trees flowering intensely this year and, surprisingly, most of them at the same time, we are expecting a significant number of trays from our trees in Darwin and Katherine.
The current small quantities of early fruit are expected to continue for a week or two, with a sharp increase later in this month, which would be expected to place pressure on prices. Crop forecasts show that the bulk of the harvest will start later this month in Darwin and the first two weeks of November in Katherine.
DBIRD, my department, through the Mango Harvest Labour Strategy Group has been assisting the Northern Territory Mango Industry Association facilitate the implementation of strategies to address harvest label issues. In that context, I am aware that one of the strategies that has been examined is to put in place arrangements for guest workers to come in from overseas. Of course, that will require federal government support.
I would like to make several points. First, this is only one of a number of options that the Harvest Labour Strategy Group has considered as a concept. Unfortunately, even if it is okayed, it is not going to be an option for this season and, even if the industry decides that it wants to pursue the option in the longer term to bring guest workers from another country, there are a number of complex administrative and practical difficulties that will need to be addressed.
Let me stress again that this is one of many ideas being tossed around by the Labour Strategy Group. I am also aware that there is an increasing understanding amongst many growers that the best way to attract and retain good pickers is to offer good working conditions and wages.
There are, of course, other challenges that the industry is facing, not only the pickers, but also logistics and transport. Our mango harvest has to compete with the melon harvest in Katherine, which is going to last five months, while our harvesting of mangoes lasts only for a few weeks, and transport companies are not going to abandon the Katherine growers just to serve our mango harvest and mango processing in the Territory.
As part of the preparation for the season, the Northern Territory Mango Industry Association held a meeting in early September, and 50 mango growers, packers and stakeholders discussed issues associated with harvest, labour, transport and price. That is a very good sign that the industry is maturing. People are talking to each other to resolve their issues instead of fighting and bickering.
I wanted to make these comments because a lot of attention has been focussed on guest workers, or East Timorese workers coming to Darwin, and we have to say that it is only one of many ideas examined. There are technical difficulties and, at the end, it is going to be a decision of the federal government about guest workers in Australia.
Mr WOOD (Nelson): Madam Speaker, I was interested in the Minister for Primary Industry and Fisheries talking about the mangoes. I am fairly sure that I have to do the mango tango down Mitchell Street in about two weeks to help to encourage backpackers to become pickers in the mango industry. I hope the minister is there with lots of cold water. It is going to be a hot job dressed in a mango suit.
I would like to raise an issue that I came across recently. I have this statement which I will read out. It says:
- Parliaments in most democratic nations have established a system of parliamentary committees with the purpose
of assisting public scrutiny and of maximising accountability from the elected government of the day.
Parliamentary committees should be free to operate unhindered and to praise, criticise or call to account the
actions of the government.
Parliamentary committees in the Territory are established under standing orders. These can be changed virtually
overnight at the whim of government. Labor will enshrine the broad structure of the committee system in legislation
so that the status of committees is raised and they become part of an institutional framework of the parliament,
and not subject to the wishes of the party which holds the majority of numbers in the House.
Under this new regime, Labor will have legislatively prescribed areas of responsibility. This arrangement will
free the committees to investigate issues of public concern without the approval of the governing majority party.
Each committee will have power to consider issues, conduct hearings, report on them and make recommendations.
The committees will have enhanced powers to call for evidence. The make-up of committees will be changed to have
six members each, only three of whom will come from the party in government.
That is from the position paper of the Labor Party in 2001. I had to read it carefully so I understood what the government was saying. When I considered what happened earlier this sittings on General Business Day, I had the feeling that this policy did not match what happened on General Business Day. The government has said the arrangement will free the committee to investigate issues of public concern without the approval of the governing majority party.
On 5 October, there were approximately eight requests by the opposition and the Independents, asking that various committees look at different issues that we believe should be investigated. My first notice asked that the environment and sustainable development committee look at cotton and cropping in Australia and the Northern Territory. My second one, which was looking at explanatory memorandum and statements, was, out of all these, referred to the Standing Orders Committee, although I think the Leader of Government Business did have his heart on his sleeve, or tongue in cheek, when he said this is really important stuff and you should be proud of us supporting that. However, it has at least gone to the Standing Orders Committee.
I also asked that the Auditor-General investigate matters about Metis. Admittedly, that matter was referred to by the member for Macdonnell. The Opposition Leader asked for a select committee to look at the effects of poker machines and other related matters. I asked that the Public Accounts Committee look at the Owston Nominees and Warren Anderson issue. The opposition asked that the Northern Territory parks estate be referred to a select committee to investigate certain matters. The member for Macdonnell also asked that the pool fencing scheme be referred to the Public Accounts Committee, and the member for Port Darwin asked that issues regarding the disposal and storage of certain waste products be referred to the Sessional Committee on the Environment and Sustainable Development.
Whilst one of those might have been put aside for the time being and one very small was passed on the day, the rest did not. It seems as though the government’s intentions before they came into parliament - and I am quoting from the position paper - have not come fully into being. I give the government one thing: it has made up a committee of six members. In most cases, three come from the governing party, two from the opposition, and one from the Independents, and that is a good move.
I am not here to be totally negative; the government did introduce the Estimates Committee. The Estimates Committee is an excellent concept. I believe that the other committees should be freer to take on some of these issues that members on this side of parliament raise as matters of concern.
I would just like to say one other small thing. In the NT News on 5 October on the front page, there was ‘The best little country practice’. It was an article by Paul Jackson and I will just quote some of it:
- A small Territory doctor’s surgery is the best in Australia.
Fred’s Pass Medical Centre has won the title of National Practice of the Year.
The surgery is in the Humpty Doo Shopping Village.
‘We still can’t believe we won’, excited owner Pat Crompton said last night. ‘Who would ever believe a
small practice from little ol’ Humpty Doo in Darwin could win the title from hundreds of other practices
Australia-wide?’.
They flew to Melbourne and picked up a trophy and a $5000 cheque from the Royal Australian College of General Practitioners. The picture on the front page shows all the staff. The staff shown are Lionel and Pat Crompton, the owners of the business, with Dr Armando Accantara, Dr Agnes Ocampo, Shirley Doldissen, Helen Christensen, Jo Van Dam, Cheryl Mao and Dr Rene Penaloza.
This is one of the best places, I believe, in the Darwin region. We are lucky in the rural area; we have quite a few doctors. However, this is a great little place - four doctors. It has its own surgery and emergency area. People are welcome up to 10 pm when it closes during the week days. It is open on Sundays from 9 am to 12 noon. One of the special things about, is not only is it very friendly staff, but if there are 20 people waiting at 12 noon, no one is sent home. Doctors will attend everyone until all those patients are looked after. It is a terrific service by a terrific group of people. Pat and Lionel Crompton are just fantastic people - not only just from a medical point of view. They have certainly looked after me. People would know that I had a piece chopped out of my leg which was a skin cancer. The staff there helped bandage that regularly. I had to go every two days or three days.
I should also thank, while I have the opportunity, the nurses at Palmerston Care Centre who have been constantly bandaging and re-bandaging my leg. I thank those people because they are wonderful people. There have been some things said about that care centre and I can tell you now, the staff there are just great. I do not see any bad morale there; I know they are a great bunch of people and they certainly look after you.
Getting back to the Fred’s Pass Medical Centre; it is a great practice. They talk about have 120 patients per day. I do not have any problem believing that because there are always plenty of people there. They are not just there for medical reasons. A year-and-a-half ago, when I was in parliament here, I went to the opening of this practice. It was the day my father died and I was told about his death at the centre. If you wanted a shoulder to cry on, Pat Crompton was the shoulder to cry on. I have a lot of respect for that lady, and Lionel as well. They are more than just doctors. They are part of the community and that is what makes them so special.
I say congratulations, not only on behalf of myself, but all the people in the rural area. I gather many people from Palmerston attend as well because of the hours that it is open, the friendliness, the service, and the quality of the service they provide - it is just a great place. I say good on them, it is well deserved and I hope you are there for many, many years.
Ms MARTIN (Fannie Bay): Thank you, Madam Speaker, and I hope your leg is better, member for Nelson.
Mr Wood: Yes, it is ready for running on Sunday.
Ms MARTIN: All right. What time are you running?
Mr Wood: Three o’clock, six o’clock and the next day shot put at 7.30.
Ms MARTIN: I will be there for the morning. I will miss it. Otherwise, I would have come and watched you.
Mr Wood: Sunday morning.
Ms MARTIN: Sunday morning?
Mr Wood: Yes, I am driving down tomorrow.
Ms MARTIN: Madam Speaker, sorry about that, but I am looking forward to being in Alice Springs on Saturday evening to open the Masters Games. It is a lovely occasion and I love seeing the mix of all those Territorians and interstaters as well, and the age groups. People who you think should be home sitting down reading quietly, are up there doing extreme sports – it is fantastic.
I just want to talk about some Fannie Bay electorate issues and the Arafura Bowls site and its future was announced this week. Lacuna Design was announced as the winning expression of interest to develop the former Arafura Bowls site in Parap. Part of that arrangement was that $250 000 from the sale of the land will go to Bowls NT and I know that is very welcome. The bowls community faced difficult times when one of their facilities closed down, but our assessment was that having three in the Palmerston/Darwin area was more sustainable and more viable and that certainly is the case. So that is $250 000 from the sale of land at Arafura going to support bowls.
I would like to talk about the Lacuna proposal because it had the unanimous support of a qualified panel of industry and government members in the testing of those expressions of interest. The proposal comes within a framework of the Year of the Built Environment. The criteria for what we could do in the Year of the Built Environment with this site was developed in close consultation with local residents. What we did was to say that it is the Year of the Built Environment, we have a site here, let us see what we can get to show sustainable design, environmentally appropriate design - one in tune with climate - and do it in a way that actually recognised where it was - which is on Ross Smith Avenue - and how to link new design in an old suburb with those old houses that people do treasure.
I am pleased that the Parap residents and Parap Ludmilla Planning Forum were heavily involved in this and they are all very enthusiastic about the outcome. It is a medium density tropical design and there are many aspects of it that are innovative. It is a development comprised of 18 two-level, three-bedroom dwellings which are all in nine duplexes. I congratulate Gus Matarazzo and his team, including Troppo Architects, Greg McNamara and Lena Yali, because it certainly is an innovative and tropical design. The dwellings will feature principles of sustainable design and crime prevention through environmental design, and are designed to exclude the need for airconditioning, although airconditioning, of course, as we know, is one of those things we need to have available.
The history of the site, which is associated with aviation, and now as a former bowls club site, will be represented in public art and landscaping. Importantly, one third of the area, which is just over one hectare, is to be retained as public open space and Darwin City Council will look after that. I congratulate the Parap Residents Association, Wendy Macdonald, Christine Brownjohn, Monica van den Nieuwenhof, Ron Weepers, Betty Vogel, Claire George and the Department of Infrastructure, Planning and the Environment for their input into this project, and what is an innovative outcome. We all look forward to the start of the $6m development, which Gus tells me he will start as soon as the Wet is over.
One of the ongoing issues in Parap is traffic in Gregory Street. It has certainly been an issue for some time and I am working with our local aldermen, Rodger Dee, Helen Galton and Heather Sjoburg, and local residents, to address the issues of speeding, which is a constant one for the street and the use of Gregory Street for ‘rat running’, as it is called in technical traffic terms.
One of my constituents, Mark Hoult, who lives on Gregory Street, approached me about this matter and attended a meeting with our aldermen in my electorate office just a few weeks ago, along with other concerned residents including Ron Weepers, Don Hill, Michael and Robyn Henderson, Lila Notley, Shane and Glenda Thornton, Mal Parker, Bernie Davies and Debbie Wynch. Residents discussed the issues of speed and safety and I am looking forward to a follow-up meeting this Saturday with the Darwin City Council’s technical staff to see how we can resolve this matter.
Whilst this is an issue for Darwin City Council, I am very pleased to be able to facilitate the meeting with residents and the aldermen and make sure that we do get a resolution to an issue that we have dealt with a number of years. There have been certain trials of Gregory Street, including closing off one end. That did not work. There have been traffic calming devices put in. They did not work and they were taken out. It has been an experimental area and residents want to try again, so we are, and I thank Darwin City Council for their involvement.
Another Gregory Street issue is the prime piece of land in my electorate on Gregory Street owned by Telstra that has been earmarked for sale. Telstra has been proactive in approaching the local community via the residents group to find out - as they are putting this land, the old OTC site, up for sale - what residents would like to see happen on the site. I certainly thank Danny Honan and Libby Beath for approaching residents before acting on the issue. They simply could have said: ‘We are selling it’, but they have not. They have gone to residents and said: ‘A prime piece of real estate on Gregory Street. What would you like to see happen with it?’
A well attended community meeting endorsed the concept, after some discussion, of an over-55 retirement village, which would be a great development for the area. There are a large number of older people in large homes who do not want to leave the area, but no longer want the hassle of a large house, so this would be a great opportunity for this group of people. It would not be a formal village with a nursing component, but a group of homes that would be for over-55s.
Telstra have also started talking to residents about a mobile phone tower being erected on the site. Residents have expressed opposition to it, and Telstra has agreed to negotiate. I am looking forward to a positive outcome on the issue and will be working with Telstra to ensure that we get all parties to agree on what should happen. I congratulate all those residents involved, in particular Sharon Wilson, Michael and Robyn Henderson, Melita Inglis and Dave Clark, Monica van den Nieuwenhof, Eric and Kerry Braun, Helen Galton, Bobbie Thomson and Jean Vickery.
I am looking forward to seeing things moving ahead on this site that reflect the needs and interests of the community. An example of successful community involvement has been seen with the Arafura development and will certainly look forward to that occurring at OTC as well.
Finally, August this year saw another very successful Seniors Month. Setting aside this time each year ensures that, as a community, we celebrate and reflect on the contribution that older people have made to the Territory and to Australian society. It also serves as a reminder that senior Territorians, like other population groups, have needs that must be considered by government when setting funding and service delivery priorities. My government continues to support activities that promote positive ageing and which give seniors a chance to demonstrate how rich and full life can be in this stage of our lives.
Seniors Month has been celebrated in a modest way for several years, but the injection of funding by my government for the first time in 2003 by way of a small grants program has really put August firmly on the map for seniors.
This year’s grants were allocated to 41 community groups across the Territory, including two grants each to organisations in Nhulunbuy, Katherine and Tennant Creek; one grant each to organisations in Pine Creek and Adelaide River; seven to Alice Springs; and 25 to Darwin, Palmerston and the Darwin Rural area. Not all of the grant recipients were senior groups. The National Trust, Territory Craft, the Ballroom Dancing Association, Friends of Taminmin Library, the Happy Migrant Social Club, Katherine Freemasons, Alice Springs Lions Club, and East Point Aero Modellers Club all received financial support for activities for seniors during August this year. Local governments were also active in promoting Seniors Month, and computer classes at local libraries proved to be particularly popular.
Indigenous organisations were provided with grants to ensure that indigenous seniors in a number of communities were able to participate in activities. In Nhulunbuy, Miwatj Health Aboriginal Corporation received funding to ensure that seniors could participate in the Garma Festival. In Alice Springs, Congress provided activities throughout the month and there was a special celebration at Atitjere (Harts Range).
The frail aged and those living in residential care facilities were also included in the celebrations. In Alice Springs, Old Timers organised a Vintage Olympics, and the Red Cross organised well attended activities throughout the month for their home care clients. In Katherine and Tennant Creek, seniors who live in the residential care facilities joined in a morning tea and lunch organised by the Freemasons in Katherine, and by senior citizens and pensioner associations in Tennant Creek, while harbour cruises in Darwin, organised by COTA, were especially popular.
The program provided something for everyone, and senior Territorians turned up in their hundreds to some of the events. Dancing classes, fitness programs, craft classes, movies, bush poetry, cooking classes for diabetics, morning teas, lunches, barbecues, and the popular dinner dance in Alice Springs, were just some of the activities available for seniors to enjoy.
Seniors Month provides an opportunity for all Territorians to contribute. All activities which make up Seniors Month are only possible as a result of the significant contribution of volunteers and hard-working staff. The involvement, particularly of volunteers, is testimony to the vibrant and caring community we have here in the Territory. Here, seniors are valued for their continuing contribution to making this a great place to live, no matter what age you are.
I also congratulate the press in the Territory for their excellent reporting of Seniors Month. The positive stories and photos which featured in several newspapers do have a big impact on community attitudes and highlight the pride of place of older Territorians in our community.
My government is committed to reversing the trend of long-time Territorians leaving the Territory in retirement. There are benefits to retiring in a community where your roots are, but also where it is easy to make new friends. By supporting community groups through the Seniors Month grants, we hope to encourage seniors to discover a new interest, become involved in a new community group, or continue to keep up a fitness program in good company long after Seniors Month is over.
Madam Speaker, we are all proud that the Territory has a reputation for being a great place to be young, to raise a family, to have an affordable home and a lifestyle in this tropical climate that many Australians can only dream about. During Seniors Month, let us not forget that many of our older Territorians are the people who created the Territory, stamping it with their spirit of independence, fun and a taste for adventure. Others are newly arrived, starting out again and gaining a new lease on life, as they chase the sun or settle here to support children and grandchildren. Seniors Month celebrates those very people who provide the solid base of experience and wisdom that any balanced community needs. I congratulate all those involved in making Seniors Month such a great success.
Ms SCRYMGOUR (Arafura): Madam Speaker, on 11 September 2004, I attended the Mahbilil Festival in Jabiru. This festival, which used to be called the Wind Festival, has been a regular event in Jabiru since 1985. Over the years, it has largely focussed on showcasing local musical talent, as well as bringing in big name bands from outside the region.
This year marked a major turning point in the focus of the festival. It was renamed the Mahbilil Festival using the local Gundjehmi word for ‘afternoon breeze’. The festival, held by the Jabiru lake, featured an all Aboriginal line-up for the first time. There were indigenous cultural activities, and the active involvement of the traditional owners of Jabiru was quite evident. This year, the Mahbilil Festival was testimony to the growing trust in the new and productive relationship between the Mirarr traditional owners of Jabiluka and the mining company, Energy Resources of Australia.
A commitment by ERA not to develop the Jabiluka uranium mine without the consent of the Mirarr people is the foundation of this growing trust. A legal agreement between the Mirarr, ERA and the Northern Land Council, which gives effect to that pledge, is now awaiting the signature of whoever the new federal Minister for Indigenous Affairs is. Quarantining Jabiluka as an issue has enabled the Mirarr and ERA to address other pressing social and environmental issues. This festival was proof that, despite three decades of animosity and argument between miners and traditional owners, despite the testing times of late and the challenges ahead, resolution is achievable with imagination and goodwill.
I would like to make special mention of the Yawkyawk Yawurrinj Kakadu Youth Group which put in a lot of effort to make the festival visually spectacular. Through the guidance of Dwayne Baker, colourful lanterns were created and scattered throughout the park in the images of the local wildlife including the barramundi, jabiru bird and the gecko. A fire display of traditional images was also created by the youth group, and they assisted in the making of some great damper. I welcomed the enthusiasm and participation in the festival by so many young people for the first time in Jabiru.
There was also a presentation of appreciation by me for Yvonne Margarula, the senior traditional owner of the Mirrar people. I expressed to all the visitors and the participants at the festival, that no matter what your thoughts or political persuasions may be, the strong convictions and stance that Yvonne has maintained over the years was to be admired and recognised. On behalf of the Northern Territory government, I applauded the efforts of the Mirrar people and ERA in bringing about this great event.
I also acknowledge the other sponsors of the festival which included Gundjehmi Aboriginal Corporation, Rio Tinto Australia, the Jabiru Sports and Social Club, the Jabiru Town Council, Parks Australia North, Jabiru Area School, the Jabiru Market Stallholders Association, the Jabiluka Association and, of course, the Northern Territory government which also contributed funding to the festival.
Finally, a special thanks to all the volunteers young and old who made the first Mahbilil Festival a great success.
Motion agreed to; the Assembly adjourned.
Last updated: 04 Aug 2016