2003-02-27
- Madam Speaker Braham took the Chair at 10 am.
MESSAGE FROM ADMINISTRATOR
Madam SPEAKER: Honourable members, I have received from His Honour the Administrator Message No 11 notify assent to bills passed in the November 2002 sittings.
WARRANT
Deputy Chairmen of Committees
Deputy Chairmen of Committees
Madam SPEAKER: Honourable members, I table my warrant nominating further Deputy Chairmen of Committees of the Legislative Assembly. Pursuant to the provisions of Standing Order 12, I announce that I nominate Mr Len Kiely and Ms Marion Scrymgour to act as Deputy Chairmen of Committees when requested so to do by the Chairman of Committees.
LEAVE OF ABSENCE
Member for Arnhem
Member for Arnhem
Mr HENDERSON (Leader of Government Business): Madam Speaker I move that leave of absence be granted to Mr Ah Kit for Thursday 27 February 2003 to attend to family business.
Motion agreed to.
Mr HENDERSON (Leader of Government Business): Honourable members, I wish to advise that, for today, any questions on his ministerial portfolios be directed to me.
MINISTERIAL REPORTS
Chief Minister’s Study Award for Women
Chief Minister’s Study Award for Women
Ms MARTIN (Chief Minister): Madam Speaker, I am pleased to inform the House today of the recipients of the 2003 Chief Minister’s Study Award for Women.
When the study award was announced in October 2001, it was one of the first programs introduced under my government’s policy focus on education and training. The award is valued at $20 000 each year, of which $14 000 is made available to a Territory woman to undertake a tertiary study program, and $6000 is made available for a Territory woman to undertake a vocational study program.
Members will be aware that the study award first presented in March 2002 was initiated to assist women gain access to formal qualifications and enhance their employment opportunities. The 2003 award has been widely promoted throughout the Territory in regional newspapers and via women’s groups and associations, indigenous organisations, newsletters, electorate offices, and the Office of Women’s Policy web site.
By the closing date, which was 31 December last year, 78 applications had been received from across the Territory: 13 from the Alice Springs region, one from Hermannsburg, six from Katherine, nine from Palmerston, two each from Batchelor, Humpty Doo and Nhulunbuy, one each from Angurugu and Alyangula, and 41 from Darwin. Fourteen applications were received for the vocational award and 64 for the tertiary award. A selection panel was formed to assess the applications on my behalf comprising Professor Ken McKinnon, interim Vice Chancellor of the NTU, Eileen Shaw, the Director of the Institute for Aboriginal Development in Alice Springs, and Sylvia Langford from the Department of Community Development.
The applicants ranged from recent school leavers to mature women pursuing formal qualifications in the fields in which they have been working for a number of years. Panel members noted that a number of applicants were motivated by the opportunity to use their new qualifications for the good of their community. This year the field of candidates was exceptional. The panel had a difficult time ranking the applicants; so much so that they took the unusual step of recommending that runners-up in each category should be highly commended. This reflects the depth of talent and commitment among Territory women.
Ellen Johnson and Margaret Marla Lewin were highly commended by the panel for their applications for the Vocational Study Award. Ellen Johnson is an indigenous women from Katherine who has been employed as a case worker with Katherine Aboriginal Support Unit, and as a resource support worker with the Katherine Women’s Crisis Centre. She will be studying for a Diploma in Frontline Management at Centralian College. Ellen wants to further her skills to enable her to participate at a higher level in indigenous organisations.
Margaret Marla Lewin is a mature aged indigenous women who is currently studying for a Graduate Diploma in Management and Administration at the Batchelor Institute. Margaret has a background in broadcasting and is currently working part-time at Karama Primary School. She plans to apply her skills in addressing indigenous issues.
Highly commended by the panel in the tertiary education category is Edna Iles. Edna Iles is also an indigenous women who is the coordinator of the social and emotional wellbeing unit of Wurli Wurlinjang Health Service in Katherine. She is a church pastor in her local community. In her work, Edna counsels clients and is increasingly seeing clients with mental health issues. She will be studying for her Bachelor of Indigenous Health Studies (Mental Health) at Batchelor.
These women all had impressive applications and should be congratulated. I wish them all the best with their studies. Of course, there can only be one winner in each category.
Madam Speaker and honourable members, it is now my very pleasant duty to advise this House of the recipients of the 2003 Chief Minister’s Study Award for Women. Yvonne Odegaard is the recipient of the Vocational Study Award for 2003. Yvonne is an indigenous artist who has a background in business and the fashion industry. Yvonne will be undertaking a Certificate IV in Textile Design and Printing at the Alice Springs Campus of the Northern Territory University. She plans to develop her skills in the design and printing of textiles to create and produce indigenous designs for the fashion industry.
Frances Turner is the recipient of the Tertiary Study Award for 2003. Frances is an indigenous woman from Alice Springs who has been working in the health field for 30 years. Most recently, she has been working on a nutrition programs including the implementation of the Strong Women, Strong Babies, Strong Culture program in seven remote communities. Frances is planning to study for her Bachelor of Indigenous Health Studies (Food and Nutrition) at Batchelor. She is keen to expand her knowledge of nutrition because of its importance in reducing the prevalence of chronic disease among her people.
Congratulations and best wishes to Yvonne and Frances and to the highly commended runners-up. I look forward to seeing these women, their communities and the Territory reap the rewards of their endeavours for years to come.
Ms CARNEY (Araluen): Madam Speaker, in my capacity as shadow minister for women’s policy, I thank the Chief Minister for her report. With her, I congratulate the successful applicants and heartily encourage those who were not successful to apply next year and in future years.
The study award, if my memory serves me correctly, is a variation of the existing Women’s Fellowship that the former government had in place. Most members of this House concede that, in the area of women’s politics, party politics rarely should come into it. Having made that comment, I simply thank again the Chief Minister for her statement. I look forward to progress in the area of women’s issues and, once again, encourage those applicants who were not successful this year to apply future years.
Information Communications Technology Forum
Dr TOYNE (Communications): Madam Speaker, as part of my role as Minister for Communications and Minister for Corporate and Information Services, I am committed to supporting and growing the Territory’s ICT industry. A robust ICT industry in the Northern Territory contributes to our economic development and provides jobs for Territorians.
In September 2002, I was proud to co-sponsor an information communications technology forum for the industry and government participation with the Minister for Business, Industry and Resource Development. The forum was the first time the NT’s ICT business community had come together with government to plan the future of their industry and inform the long-term plans of our government. It was clear from the forum that the Territory’s ICT industry can further develop its export capacity. One of the priority outcomes of the forum was to seek global markets for the export of NT ICT products and services.
With this in mind, and at the invitation of the industry, I will be leading an NT ICT delegation to the CeBIT trade fair in Hanover in the middle of March to explore international business and export opportunities. CeBIT is the premier global trade exhibition for IT, telecommunications, software and services. Together with the NT ICT businesses, I will meet with ICT industry leaders to discuss development and export opportunities for the Northern Territory in areas such as remote telecommunications, telemedicine and distance learning.
This government is providing funding assistance, through its Export Marketing Assistance Scheme program, to the NT Australian Information Industry Association and other businesses to enable them to attend CeBIT. One those businesses is Asset Management Systems, a Northern Territory business which has been selected as one of only 12 exhibitors in the Technology Australian pavilion. I congratulate Mr Bruce Diggens of Asset Management Systems on this achievement, and on his earlier success in winning the 2002 Secrets of Australia IT Innovation Award in Adelaide.
Objectives of Territory businesses attending CeBIT 2003 include: collaboration amongst ICT businesses, one of the goals established by the ICT forum; exposure to leading edge and emerging trends in the technologies; marketing the NT ICT industry and the Territory as a place to do business; and sourcing new export markets and distributors.
I am looking forward to representing the NT government on this important trip and to reporting to parliament on the outcomes that the government and the IT businesses working together will achieve.
Dr LIM (Greatorex): Madam Speaker, I congratulate the minister on his mini-report on the ICT industry in the Northern Territory. I was pleased to be able to get to the ICT forum last year, held upstairs on the 4th floor. Of the sessions I attended, I found the information to be very well presented. Industry was most pleased to be able to see where government is coming from.
I understand that, next week, there will be a parallel ICT forum held in Alice Springs. I look forward to attending that and ensuring that the Alice Springs communications and ICT industry people also share in the information that they looked so longingly to when the conference was held here last year. I wish the minister well in his visit to the CeBIT conference in Europe. I hope he brings back to the Territory many marketing opportunities, because I believe what the industry has been doing in the Northern Territory is very worthwhile and should have many opportunities to sell overseas.
Dr TOYNE (Communications): Madam Speaker, I welcome the opposition support and I look forward to working with them in a bipartisan way in supporting this very important industry.
National Harmony Day
Mr VATSKALIS (Ethnic Affairs): Madam Speaker, I am very proud to say that the Territory leads the nation in our Harmony Day functions. No longer do we have Harmony Day; we have harmony month with celebrations being taken up by schools, councils, the government, community organisations and Aboriginal and ethnic organisations across the Territory.
I am very proud to announce that the national launch of the Harmony Day celebrations will occur here in the Territory. On Monday 10 March, the federal Parliament Secretary for Multiculturalism, Gary Hardgrave, and I will launch the nation’s celebrations at Casuarina Square. It is highly appropriate that the Territory should be the host of the launch of these celebrations. This government places a priority on celebrating and enjoying our unique Territory lifestyle. We are the most multicultural place in Australia, and we live in harmony in a way that is an example for all around the nation. It is also appropriate because it was a Territorian who developed the national theme for Harmony Day. The theme is: You + Me = Us.
The creation of the theme came about when Cambodian Territorian, Ms Thyra Ou proposed it during the police ethnic advisory group working party for Harmony Day. The theme was taken up by my Office of Ethnic Affairs with a focus on Territory harmony promotions. The federal government used the theme with an all Australian focus in 2002. The theme continues for 2003. The origins and the continued effectiveness of our Harmony Day theme is a great example of how the different parts of our Territory community work together for lasting benefit. Ms Ou is an active member of our community. She has participated in the executive of the Cambodian Australian Association of the Northern Territory, and works as an interpreter with the Northern Territory Interpreter Translator Service.
Harmony Day falls on 21 March this year, and coincides with the United Nations International Day for the Elimination of Racial Discrimination. Harmony Day is a time when we focus on what multiculturalism is, cultural diversity, living in harmony, what all of that means to us, and to encourage people to say no to racism, to reaffirm our shared values as a community, and to celebrate the Territory’s achievements as a multicultural society.
The government advertised a mini-sponsorship program to assist community organisations and schools with projects that promote and celebrate our cultural diversity across the Territory. The interest from the community was great. The government now provides financial assistance to 23 projects, in total $32 000. I will announce the successful applicants in the near future.
Harmony activities will be celebrated throughout the Territory with activities taking place in Alice Springs, Tennant Creek, Katherine, Pine Creek and Darwin. Some of the Harmony events that will be held across the Territory are: the Alice Springs Islamic Society open day, inviting the community to share and help understand each other’s culture; the Multicultural Council of the Northern Territory have organised a two-day seminar titled ‘Racism, Reconciliation and Multiculturalism’, presented by Chris Sidoti, the former Human Rights Commissioner, from 24 to 25 March in Darwin, and from 27-28 March in Alice Springs; the Pine Creek community is hosting a multicultural get together dinner on 15 March; the Katherine Filipino Australian Association will host a community get together to celebrate community harmony on 22 March; the Barkly Multicultural Society in Tennant Creek will host a Harmony Day celebration on 21 March; Ausdance NT will host an evening of multicultural dance on 14 March at the Italian Club; and the Filipino Australian Association of the NT will host a Harmony Youth Festival on 23 March 2003 at the Filipino Community Hall in Marrara.
I know that many of the Northern Territory schools are also planning activities to celebrate Harmony Day. Madam Speaker, I table a calendar of Harmony activities which will be held across the Territory.
Darwin Aquaculture Project
Dr BURNS (Primary Industry and Fisheries): Madam Speaker, I inform the House of the progress of the Marine Harvest Barramundi aquaculture project at Port Hurd on Bathurst Island.
The Marine Harvest project is supported by the government through the Darwin Aquaculture Centre, which contributes research and expertise, and provides the fingerlings for the farm. I am pleased to report that I went to the Darwin Aquaculture Centre before the New Year. It is a very interesting place, and they do a great job. There is a lot of science in what they do and I thoroughly enjoyed the time I spent there.
It has been a tough road for the project at Port Hurd. However, they have recently started to have some great successes; there have been some difficulties. This was a greenfield exercise. There were problems with disease, fish bloating, with the nets eroding, there were also problems with sharks and crocodiles, and there were also problems with the barramundi eating each other. At one stage, the whole viability of the project was in some jeopardy.
Barramundi production at Port Hurd is currently over 10 tonnes per week …
Members interjecting.
Dr BURNS: Madam Speaker, this is important and I know the member for Goyder is listening carefully to this.
Barramundi production at Port Hurd is currently about 10 tonnes per week, and will reach 20 tonnes per week by mid-year, which will be equivalent to about 1000 tonnes per annum. In the wild caught barramundi fisheries, it is approximately 900 tonnes per year. So, essentially by mid-year this aquaculture project will supersede the amount of the wild catch in the Northern Territory.
It is an astounding achievement for a project that only harvested its first fish a year ago. At present, there are about 14 full-time equivalents for the current farm size, so here is employment, and it will rise as production increases - more jobs for Territorians. Marine Harvest is investigating two new sites within the Northern Territory and they are looking to double their capacity in the foreseeable future. Once again, development of new farms will also increase regional employment for Territorians.
Producing fish is one thing, selling them is another, and sales have been very encouraging. These fish have been receiving a premium price above the wild catch, which is very interesting. Most of the sales are to southern markets, but there have also been trials into the USA. Some distributors visited Darwin last year to see the project.
Marine Harvest has entered into negotiations for a further contract to supply barramundi fingerlings, and it has indicated that it is considering increasing requirements from 780 000 to 1.8 million fingerlings per annum. Marine Harvest and the Darwin Aquaculture Centre are undertaking a range of collaborative research programs, including assessment of new feeds, disease management and improvement of growth through breed stock selection. Marine Harvest have also indicated an interest in investing a new infrastructure at the Darwin Aquaculture Centre to support fin fish research and development. I will be visiting the facility at Port Hurd next month and am looking forward to it. As I said previously, I went to the Darwin Aquaculture Centre around Christmas time. It is a great facility out there. I omitted to mention the great work that Colin Shelley, in particular, and his staff do out there.
This is a real case study of research leading to investment, to the creation of an industry, and for jobs for Territorians. It will be interesting to see what impact both the progress to date and the potential development of this industry will have on the wild caught industry. A long-term vision of developing a barramundi farming sector of over 10 000 tonnes per annum in the NT has been put forward by Marine Harvest. Given their record and development so far, that is very achievable, and I congratulate them on their vision. This Northern Territory government supports companies like Marine Harvest and these ventures which have a long-term vision. This is a government that has a long-term vision for the Territory and for Territorians, and for the economic development of the Northern Territory. It is exciting. I move that the Assembly take note of this report.
Mr MALEY (Goyder): Madam Speaker, the work done by Marine Harvest and the Darwin Aquaculture Centre is fantastic, and receives unconditional and absolute support from all members of this House, I suspect.
When I was in Namibia last year, I gave a paper on sustainable aquaculture and the development of the world-wide fishery. One of the interesting statistics that I discovered was that about 500 million people live on coastal areas and are primarily sustained by subsistence type fishing and from wild stocks. They say that, by the year 2013, the amount of aquaculture produced commercially by harvesting and farming will actually take over the wild catch. It is great to see that is happening today in the Territory, or soon will be happening - we have a farm produced product which will be exceeding the wild catch. It is certainly the way of the future.
Jobs for Territorians is what it translates to. It translates to a good quality product on the table, to a sustainable fishery and a sustainable wild catch in that the pressure on the wild catch is reduced. Ultimately, it gives the government absolutely no excuse to fulfil at least two of its election promises, namely to close the Adelaide River to commercial barramundi fishing, and also to close Bynoe Harbour to commercial barramundi fishing.
I am indebted to the minister for the statement, it is an important issue and one which I hope he takes seriously.
Mr WOOD (Nelson): Madam Speaker, I said in the adjournment debate the other night that sometimes, when I see both sides of parliament patting one another on the back, what you need is a devil’s advocate. I also congratulate the government on this involvement in the project and the private investors that are doing the same thing. It is very important.
What needs to come back, if we are really talking about sustainable development of aquaculture, is proof that it can stand on its own two legs. At the present time, it is certainly based on assistance from the government because there is a lot of research in this. The fingerlings come from a government organisation, the aquaculture farm, so presently it is not standing on its own two legs. It would be good to get, in perhaps 12 months, a regular report on how it is going.
One thing that does concern me is that if the price of fish is higher than we normally get from the wild catch and they close off some of the professional fishing areas for catching fish, what does the ordinary person in the street pay for their fish? That needs to be looked at. As I said before, we can look at all these things but, as a government, we owe it to people to look at these things scientifically, based on reality and not just the gloss.
Once again, I congratulate the government and the industry. It is a very important industry; it creates jobs. However, let us not let the gloss overtake reality. Come back in 12 months time, and give a report on how it is going. I would be very interested to see how it is going because there have been projects in the Territory take off before with a lot of gloss, a lot of hype, and they have not led anywhere. So, all the best.
Dr BURNS (Primary Industry and Fisheries): Madam Speaker, I thank the members for their contribution. Firstly, the member for Goyder. It is good to see that he has an active interest in sustainable aquaculture, and I welcome that. We have already spoken in this place during the last sittings about the processes that this government has in place to address the whole issue of river closures. That is what the aquatic user group forum is all about. I commend the work of that particular group.
In relation to the member for Nelson, certainly there are issues about sustainability of this industry. From the report that I have given here today, there has been tremendous development there, and there is scope for development of aquaculture for barramundi in the Northern Territory.
Picking up on what the member for Nelson said in the adjournment debate that there is probably there is too much focus on one section of amateur fishermen, I recognise as minister that there are many interests in fisheries. One of them is the amateur fisherman, another is the commercial fisherman and, of course aquaculture, and also all the Aboriginal interests. I will be going to Maningrida to find out more about some of those issues. Also, in terms of the commercial fishermen, I will be going fishing with them soon.
Madam SPEAKER: Minister, your time has expired.
Reports noted pursuant to Sessional Order.
PRIVATE SECURITY AMENDMENT BILL
(Serial 136)
(Serial 136)
Bill presented and read a first time.
Mr STIRLING (Racing, Gaming and Licensing): Madam Speaker, I move the bill be now read a second time.
The purpose of the bill is to amend the Private Security Act following the National Competition Policy Review of the private security legislation. The amendments ensure that the private security legislation is compliant with NCP principles. The amendments also provide for enhanced provision for public safety measures through ensuring that those undertaking security work are appropriately licensed and trained to appropriate competency standards.
The amendments will also establish improved administrative arrangements, many of which were requested by industry during the NCP review process. The amendments do not make changes in government policy. The need for amendments to the private security legislation has arisen from the government’s concern to improve standards in the private security industry. Many concerns were also raised during the NCP review. Through conduct of the NCP review and discussion with stakeholders, it has become apparent legislation could be improved by ensuring the persons undertaking private security work are appropriately licensed; making provision for an infringement notice system; ensuring licensees hold current first aid qualifications; providing the licensing authority greater flexibility in the time frame for licence renewal; and removing references to ‘transitional licences’ and the Private Security Industry Fund, which are now obsolete.
Before I outline the proposed amendments, it is important to acknowledge the contribution of key stakeholders engaged in the legislative review process through either making written submissions or attending meetings. I specifically wish to thank those who made written submissions to the National Competition Policy Review; private security firms, providers of private security training, police and others who attended the competition policy public consultation meetings concerning security licensee training standards; the Australian Hotels Association; the Australian Liquor, Hospitality and Miscellaneous Workers Union; the Business Retail and IT Training Advisory Council; and the Northern Territory Private Security Investigators Association, for their participation in the review process.
To the proposed amendments, the prime work role, the bill proposes to delete the exemption in respect of employees, to make it plain that employees undertaking the role of a security officer as their prime work duty are subject to the licensing requirements of the act. It has been observed that some shopping centres use staff to perform security industry type work; for example, monitoring customers to ensure all items collected in the store are presented for sale when leaving the store. At times, this involves questioning of customers and asking customers to wait until police arrive. Increases in this type of activity can coincide with school holidays. The purpose of the amendment is to make clear that, if staff are performing security type duties as their prime work role, they must be appropriately trained, qualified and licensed for this work.
Police are to inform the licensing authority when a licensee is charged. The bill proposes that the Commissioner of Police be able to inform the licensing authority whenever a licensee is charged with a disqualifying offence. Given recent changes concerning privacy legislation, permission will be sought from licensees when they apply or renew their licence so that police may advise the licensing authority as soon as the licensee is charged with an offence which is a disqualifying offence. This step will enable the licensing authority to take appropriate action to ensure that inappropriate persons do not continue to hold security licences. The rights of a licensee to a hearing with the licensing authority remains unchanged.
Consultation regarding training competencies: the bill proposes that before the minister approves a competency or training required for the attainment of competency standards, the Licensing Commission is required to consult with interested persons prior to advising the minister. Current legislation permits the minister, on the advice of the Licensing Commission, to approve competencies and training standards and to declare those standards by way of a notice in the Gazette. To ensure appropriate industry consultation, it is proposed the current consultation practice is formalised by requiring the Licensing Commission to consult with interested persons prior to advising the minister.
Infringement notice system: the bill proposes that an infringement notice system be introduced to deal with minor offences against the Private Security Act or regulations. Offences may include such matters as security personnel not wearing their work shift identification number, or breaches of the Security Officer Code of Practice. The infringement notice is a business and worker-friendly addition, as it will allow licensees to continue to work while providing a mechanism where minor breaches of the act or regulations are addressed. Details of the infringement notice system will be available when amendments to the Private Security Regulations are tabled later this year. However, before this occurs, further consultation will occur with a range of government, industry and community stakeholders to ensure the infringement system is fair and workable across the private security sector.
Licence renewal and current first aid certificate: the bill proposes that on licence renewal, applicants must produce documentation showing that a current first aid certificate is held. Some licensees are seeking licence renewal without production of a current first aid certificate. As licensees are required to be the holder of a current first aid certificate, the requirement that this be produced when seeking licence renewal is reasonable. It does not add any cost to licensees, ensures that licensees do have up-to-date first aid training. This amendment also reflects the government’s concern that security industry licensees are properly qualified for the duties they perform.
Non-compliance with licence requirements and regulatory offence: the bill proposes offences relating to the non-compliance with licence requirements are regulatory offences. Currently, it is an offence to employ unlicensed security persons for the purposes of undertaking security work. However, the penalties contained within the act do not specify whether offences committed are regulatory or criminal. Given the lack of specificity and that criminal intent is most unlikely to occur, it is appropriate to clarify that offences concerning unlicensed security persons are regulatory offences. The bill proposes that a licensee, as well as the Licensing Commission, may seek a variation to their licence conditions. From time to time, the licensee may wish to seek a variation to accord with changing commercial or other circumstances. It is appropriate that provisions be made enabling the licensee to do so.
Licence renewal time frame: the bill proposes that the licensing authority may renew a licence not earlier than three months before its expiry date, or within a period of time that is determined by the authority. While existing provision is adequate in terms of licence renewal not earlier than three months, there is the need to provide the licensing authority with greater flexibility where a renewal has not been completed by its expiry date.
Licence replacement: the bill proposes a prescribed fee be charged where a replacement licence is issued. Treasury’s Racing, Gaming and Licensing division have noticed a small number of security licensees regularly misplace their licence and, accordingly, seek to be provided with a replacement. Where lost licences have not incurred significant damage, such as going through the washing machine, there is the concern they may be used as part of an illegal licence provision process. Advice from other jurisdictions was that charging a replacement fee of $20, an amount which equates with the average fee in other Australian jurisdictions, would address the behaviour. Provision will be included so that if a licence is stolen and the licensee is able to produce a stolen property PROMIS Card number, the replacement fee would not be charged. This matter will be dealt with via the regulations.
Consumer Affairs officers as authorised officers: the bill proposes deleting the inclusion of officers as defined in the Consumer Affairs and Fair Trading Act as authorised officers for the purposes of the Private Security Act, and deleting references to the Consumer Affairs and Fair Trading Act and the Private Security Act. Members of the House may be aware that when the private security legislation was introduced, the Office of Consumer Affairs and Fair Trading was responsible for the Private Security Act. Accordingly, reference to staff in that agency having the role of inspectors was included. Due to changes in the responsible agency for the private security legislation, it is no longer appropriate to make reference to officers from the Office of Consumer Affairs and Fair Trading in the Private Security Act.
Licensing authority to prescribe format of Incident Register: the bill proposes the licensing authority may specify the format of the requirements to be met in completing Incident Registers. The act requires licensees keep an Incident Register, but there is no specifications as to the format of the register. Currently, licensees use loose sheets of paper, exercise books or a range of notepads. These means of recording are not satisfactory, as pages may be removed, thus not being a reliable means of documentation. Given recent instances where incidents involving public violence have been poorly recorded and possibly amended after the initial record was made, the use of a prescribed register with consecutively numbered pages is warranted.
Private Security Industry Fund and associated levies: the bill proposes to remove all references to the Private Security Industry Fund and levy, because the fund and levy have never been used. These provisions should be repealed as they are obsolete.
Complaint provisions: the bill proposes to establish a formal complaint provision in the act, to enable any person to complain to the licensing authority about a breach of the act, regulations or the code of conduct, by a licensee. Formal complaint provisions to enable a person to complain about a breach of the act, regulations or the code of conduct by a licensee is not an unusual provision. During the National Competition Policy consultation, industry supported the concept, expressing surprise it is not already allowed for.
The licensing authority has maintained an administrative practice which is guided by the rules of natural justice and laws of evidence that allows members of the public or other persons to lodge a complaint in writing to the authority. The authority, in turn, investigates the complaint, which may result in disciplinary action being taken. To ensure the efficient operation of this practice, the act will be amended to prescribe a complaint mechanism which allows the person to complain to the licensing authority about any matter arising out of the conduct of the security provider or the security provider’s business. A provision has been added, similar to those provisions in the Liquor Act, to enable the Licensing Commission to dismiss, without holding a hearing, any complaints deemed to be vexatious or frivolous.
Transitional licences: the bill proposes to repeal all references in the act and regulations to transitional licences. Transitional licences were introduced when the Private Security Act was enacted to ensure that the Territory would have access to licensed crowd controllers and security officers, because on the day when the act came into force, there were no qualified licensees. As the change from the old unlicensed system to the new system has passed and there are sufficient licensed crowd controllers in the industry, this provision is now obsolete and should be removed. It should be noted that no transitional licences have been issued since 1999-2000.
In presenting these amendments to the Private Security Act today, I also to advise the House that there will be amendments to the Private Security Crowd Controller, Security Officer and Security Firm Regulations, arising from the National Competition Policy review of the private security legislation. These amendments will be presented to the House through the normal regulation amendment process at a later date.
The amendments proposed today will amend the Private Security Act, so that it conforms with competition policy principles. The amendments further this government’s commitment to public safety and the integrity of the Northern Territory private security industry, through ensuring appropriate licensing, the use of current training standards, and more efficient administrative requirements for the licensing process.
I thank the staff for a very comprehensive second reading speech, and commend the Private Security Amendment Bill 2003 to honourable members.
Debate adjourned.
VISITORS
Madam SPEAKER: Honourable members, I advise of the presence in the gallery of English as a Second Language students from Darwin High School, accompanied by their teacher, Jennifer Marshall.
Do we also have the group from the Northern Territory University? Yes, we do. We have some international students from Japan, East Timor, Indonesia and Thailand accompanied by their teacher, Raphael van Wessem.
On behalf of all members, I extend to you a warm welcome.
Members: Hear, hear!
PERSONAL INJURIES (CIVIL CLAIMS) BILL
(Serial 137)
(Serial 137)
Bill presented and read a first time.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.
As the Assembly is aware, the Northern Territory government, along with the Commonwealth, state and ACT governments, is engaged in a comprehensive reform program designed to deal with the increasing costs and reduced availability of public indemnity insurance across Australia.
Members will recall that, on 13 August 2002, the Chief Minister reported to the House concerning the government’s response to the national crisis concerning public liability and medical indemnity insurance. The Chief Minister announced a package of legislative reform.
This package comprised:
legislation relating to self-assumption of risk by persons who are clients of providers of recreational
services. This bill, in the form of a Consumer Affairs and Fair Trading Amendment Bill (No 2) 2002
was introduced into parliament on 20 August 2002, and it will be debated later today.;
on non-economic losses, caps on economic loss, and for limits on gratuitous attended care. Consequently, the Personal Injuries Liabilities and Damages Bill 2002 was introduced into parliament on 17 October 2002. Again,
this bill is to be debated later today;
bill that I am currently introducing; and
The proposals contained in these bills have been subject to considerable debate within the various professions affected by them. This has led to the government holding over passage of the first two bills until today, and a delay from October 2002 in the introduction of the two new bills following the release of discussion drafts in October 2002.
In October 2002, the government accepted advice to the effect that further consultation was required regarding this bill and the Legal Practitioner Amendment (Costs and Advertising) Bill. Accordingly, I established the Tort Law Reform Legal Process Group and asked that it report to me by no later than the end of 2002 on discussion drafts of the Personal Injuries (Civil Claims) Bill 2002 and the Legal Practitioners Amendment (Costs and Advertising) Bill 2002.
The working group was chaired by a senior Northern Territory litigation lawyer, Dr David Farquhar, and including Hon Sally Thomas, Northern Territory Supreme Court judge; Mr Rod Smith of the Department of Health and Community Services; Ms Jenni Daniel-Yee of the Department of Justice; Mr Ian Morris, President of the Law Society of the Northern Territory; and Mr Paul Emery formerly of the Northern Territory Treasury. Additionally, Mr Michael Grove of the Australian Plaintiff Lawyers Association played a significant role as the alternate law society member to Mr Morris. The working group duly reported on the 24 December 2002.
I place on the record my appreciation of the work of the group. Within a limited time, its members have produced a thoughtful analysis of the two discussion bills, while having due regard to what the government was trying to achieve with the bills. The report of the working group has now been released and can be found on the Department of Justice’s web site.
The major recommendations of the working group regarding the Legal Practitioners (Costs and Advertising) Bill will be set out in my speech introducing that bill.
I now turn to the Personal Injuries (Civil Claims) Bill 2003. The discussion draft of the Personal Injuries (Civil Claims) Bill 2003 was modelled on the Queensland Personal Injuries Proceedings Act 2002. As such, it provided for a comprehensive set of processes to be followed before proceedings could be commenced in any court in respect of personal injuries that were within the scope of the legislation. The main findings of the working group in respect of the Personal Injuries (Civil Claims) Bill 2002 were as follows:
support for the general proposal that legislation or rules of court provide for pre-litigation notices of
claim, exchange of evidence, compulsory conferencing, mandatory exchange of offers and legal cost
incentives;
about a common set of changes applicable to all courts. The working group suggested that the executive
approach the judiciary about making the rules;
acceptance of the policy objectives for the provisions in the discussion draft clause 55 regarding legal costs.
The government has accepted the broad thrust of the recommendations of the working group’s report, though implementation may vary from that contemplated by the members of the working group. Additionally, there are some recommendations that have not been accepted.
I will now outline the main provisions of the bill and provide some explanation of the discussion draft of the bill and the recommendations of the working group. The bill as introduced today, is significantly different. Instead of the detailed provisions of the kind contained in some 60 substantive clauses, it provides for four key principles, namely:
in clauses 7 and 8, an obligation of a potential claimant to notify the potential defendant within
12 months of either the injury, or the time when the claimant became aware of the injury;
the claim; and
These clauses set out the general principles. The detailed requirements will be set out in rules made under the act. For example, the rules will set out what information a claimant must provide when lodging a claim. Clauses 13 and 14 provide the Supreme Court with the power to make rules binding on itself, the Local Court and any other Northern Territory court or tribunal having jurisdiction in respect of claims that are subject to the act. Clause 22 also permits the Administrator to make rules for the purpose of the act. Such rules cannot be made by the Administrator until at least six months after the commencement of clause 13.
Effectively, these key principles will have no operational impact until the rules are made. The aim of these broad principles is to ensure that the parties may resolve as many issues as is practicable prior to the commencement of formal legal proceedings. They should be able to do this between themselves, and without the need for costly judicial supervision. The intention is that the same rules apply regardless of the court in which the proceedings may eventually take place. The aim, of course, is to achieve settlement without the need for litigation in the courts.
The bill also makes a number of other changes concerning practises related to claims arising from personal injuries. I now list these.
Clause 12 provides the court with the power to make a structured settlement regardless of whether formal proceedings have commenced in a court. This provision needs to be read with the provisions dealing with structured settlements as contained in the Personal Injuries (Liabilities and Damages) Act 2003, as proposed to be enacted later today.
Clause 18 limits costs payable by the claimant in circumstances where a claim is resolved prior to the commencement of proceedings in a court. It does this in two ways. First, if the damages are less than the amount to be prescribed by regulation, no such costs will be payable. Second, if costs are more than the prescribed minimum, the costs payable will not be amounts greater than those set out in the regulations.
Clause 20 regulates costs recoverable by a plaintiff from a claimant after a claim has proceeded to court. Clause 20(2) deals with the situation where the damages awarded are less than the minimum amount prescribed by regulation. In that situation, no such costs are payable by either party if the damages are less than the claimant’s offer and more than the respondent’s final offer. However, if the damages awarded are less than the claimant’s final offer and also equal to or less than the respondent’s final offer, the claimant must pay 25% of the respondent’s scale costs for a period of time after the date of the respondent’s final offer.
Clause 20(3) deals with the situation where the award of damages is equal to or greater than the minimum amount prescribed by regulation, and less than the maximum amount prescribed by regulation. In this situation, depending on the relationship between the amount awarded and the various final offers of the parties, the costs vary from the respondent paying the claimant costs fixed at 25% or 50% of the scale costs, to the claimant paying up to 25% of the respondent’s costs.
There are similar rules for awards of damages greater than the maximum amount prescribed by regulation. The respondent is only required to pay 100% of the scale costs if the damages are equal or greater than both final offers, and if the amount awarded is over the prescribed maximum.
These provisions appear prescriptive. However, clause 20(5) through to 20(7) provide various grounds in which the court can make decisions which moderate the rigorous application of these provisions. Additionally, I note that these provisions are different from those contained in the discussion draft of the bill. In fact, these are substantially the provisions recommended by the working group.
In line with the view expressed by the working group, clauses 16 and 17 give the courts power to make various orders appropriate to the enforcement of the act. Most of the offence provisions in the discussion draft of the bill have been removed. The exception is that the bill provides that it will be an offence to take statements or provide documents in the course of proceedings under the act, that are false or misleading.
Before I close, I wish to mention two final matters concerning the application of the legislation. First, the legislation will have no retrospective operation in respect of proceedings that commenced prior to the commencement of section 8 of the act. In relation to injuries that occurred prior to the commencement of the act, the act applies so that the 12-month period during which notice must be given is to commence on the date of the commencement of section 8. Second, the act does not apply to claims excluded by clause 5(4) or which are excluded by regulation. These excluded claims include various claims covered by statutory schemes such as accidents in the workplace or traffic accidents. It also excludes some kinds of specialist legislation, such as that related to dust diseases.
As an interim measure, clause 5(4)(c) provides that persons who suffer an injury as a child are not required to give notice of claim until they reach 18 years of age. Issues regarding the interaction of the notice requirements and limitation periods under the Limitation Act are to be examined in the next stage of reforms regarding the law of negligence as it applies to personal injuries.
The discussion draft of this bill provided a set of prescriptive rules to govern pre-litigation proceedings. However, the bill, as introduced, takes a different approach. It sets out a policy framework for the making of rules regarding such proceedings. Executive government will seek to provide all necessary support for the judiciary and the legal profession in the development of detailed rules necessary to give effect to the policy principles. I look forward to these developments. I fully realise that the reform of litigation processes is dependant on effective commitment from the legal profession and the courts.
There are a number of broad issues that have yet to be dealt with concerning the operation of the law of negligence. These include matters such as professional negligence, particularly for medical practitioners; proportionate liability; and limitation periods. The government, together with other jurisdictions, is currently considering its response to the recently released report of the National Review of Law of Negligence.
In line with the outcomes of the ministerial meeting of 30 May 2002, the bill, along with Legal Practitioners Amendment (Costs and Advertising) Bill 2003, is intended to reduce the cost of personal injury claims by simplifying the processing for making such claims, and by discouraging costly mechanisms for the resolution of small claims.
I expect comment from the community concerning all the matters covered by this bill. However, I mention that some of the provisions in this bill arise from the recommendation of the working group, rather than from the provisions of the discussion draft of the bill. For example, those excluding the operation of section 12(2) of the Evidence Act, and detailed rules dealing with legal costs. In respect of these matters, I especially seek feedback from the community.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
LEGAL PRACTITIONERS AMENDMENT
(COSTS AND ADVERTISING) BILL
(Serial 138)
(COSTS AND ADVERTISING) BILL
(Serial 138)
Bill presented and read a first time.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I move that the bill be now read a second time.
This bill is the second bill being introduced today as part of the government’s response to the crisis within the insurance industry. This crisis causes problems in the community in respect of the liabilities of members of the public to one another, and to liabilities between the members of the medical profession and their patients.
In my second reading speech earlier today for Personal Injuries (Civil Claims) Bill 2003, I set out much of the background leading up to the establishment of the working group that reported to me on both that bill and the bill I am currently introducing.
The main proposals in the discussion draft of this bill were as follows:
advertising of legal services in respect of personal injuries should be restricted to limited
factual matters and media;
above a fee that a legal practitioner would ordinarily charge for providing professional service.
They are fees that legal practitioners may, by agreement, charge when they provide legal services
on the basis of limited or no fees, unless the client achieves an agreed level of success;
These proposals have been developed as matters incidental to tort law reform. They arise from policy positions developed in New South Wales in early 2002 concerning the advertising practices of some legal practitioners, and as a result of some suggestions made by Trowbrige when providing advice to Australia’s insurance ministers concerning the factors that were adversely affecting personal injuries litigation and insurance in relation to liabilities under tort law.
Additionally, the Northern Territory Legal Practitioners Act is relatively unclear as to the extent to which conditional costs agreements are lawful. The discussion bill sought to lay out a regime for such agreements.
The working group reached the conclusion that there are no present problems with advertising and touting by legal practitioners in the Northern Territory. Accordingly, the group considered that there was no need for legislative action, other than for the purpose of ensuring that the Law Society Northern Territory has the power to make professional rules of conduct governing advertising.
The working group concluded that there is a need for conditional costs agreements, and that the Law Society Northern Territory should be given the power to deal with complaints about all costs agreements. The working group went on to set out a comprehensive scheme concerning written statements about costs, costs agreements and dispute resolutions. The working group did not recommend any way of limiting the imposition of an uplift fee or premium concerning conditional costs agreements.
The government has accepted the broad thrust of the views of the working group’s report in respect of the legal costs and advertising. However, the implementation varies from that contemplated by the members of the working group.
The main provisions of the bill are as follows. The Legal Practitioners Act currently provides that costs are charged on a professional basis. There is no requirement for a written agreement about costs; however, the act does control costs. Firstly, there is a principle of professional conduct as set out in section 44(1)(d), that is legal practitioners must not charge excessive legal costs. Secondly, clients may apply to the Master of the Supreme Court for a review of costs. Under section 123 of the act, the Master can reduce the costs having regard to court approved cost scales and the circumstances of the case. If, however, a legal practitioner enters into costs agreements with a client, the Master has no jurisdiction. In such a situation, the client may seek a review, under section 130, by the Supreme Court, on the basis that the agreement is not fair or reasonable. The bill changes this. Most significantly, it sets out an obligation on legal practitioners to provide to clients a statement of proposed costs. Such statements may or may not be incorporated into formal agreements.
This proposal was not part of the discussion draft of the bill, and appears to have become part of the working group report following a submission from the Law Society Northern Territory. However, it seems reasonable that, as part of the structure for regulating conditional costs agreements, there should be basic rules covering all legal services. Accordingly, the bill takes up on this proposal.
Currently, as set out earlier, the Legal Practitioners Act permits legal practitioners to enter into formal costs agreements, but there is some uncertainty about the extent of such agreements. This bill removes the uncertainty by generally permitting such agreements, and by specifying the kinds of conditional costs agreements that are not permitted. The prohibited costs agreements are those related to criminal law matters, family law matters, those that are prescribed in regulation, and those that relate to sharing the proceeds of litigation.
The working group made the point that it is not practically possible to prescribe an uplift fee at present, because practices vary considerably within the Northern Territory legal profession concerning the base figure from which uplifts or premiums are calculated. The government also understands that the Law Society Northern Territory is opposed to any prescriptive regulation of uplift fees on the basis that there are other provisions in the Legal Practitioners Act, or the general law of the land, that prevent unconscionable behaviour regarding fees.
The government accepts that this argument has a great deal of validity. Why should legal fees and fee options be even more heavily regulated than is currently the case, especially when such regulation is not the case for other providers of goods and services? However, the government also notes that the profession supports the need to prohibit conditional costs agreements for certain types of legal proceedings and for certain types of payments, as mentioned previously.
On balance, the government takes the view that there should be a possibility of limiting uplifts or premiums. Accordingly, the bill provides that regulation can be made concerning the premium or uplift that legal practitioners and their clients may pay. Such limitations can only be imposed when the conditional costs agreement provides that no costs, or only limited costs, are payable if the claimant’s action does not reach an agreed level of success. The government expects to be able to implement in the Northern Territory the outcomes of the national reforms in this area of the regulation of legal practitioners. The Department of Justice is required to work through this issue with the profession and to report to government by the end of August 2003 on this matter.
In accordance with the recommendation of the working group, the bill greatly increased access to review of legal costs. It does this by providing that the Law Society Northern Territory shares with the Supreme Court the jurisdiction to review costs agreements. Thus, such agreements can be set aside if the agreement is not fair and reasonable. Decisions of the Law Society Northern Territory may be appealed to the Supreme Court. Again, the provision is included in the bill following a recommendation by the working group and with apparent support of the profession.
The bill provides for restrictions on advertising by legal practitioners in respect of personal injury matters. Under the bill, the advertising of personal injury legal services will be confined to limited factual matters and selected media. A legal practitioner may not publish a statement that is likely to encourage a person to make a claim for damages for personal injury. Subject to professional conduct rules, there will be a complete ban on television and radio advertising of these services, and print and Internet publications will be subject to tight standards. The object of these provisions is to prevent advertising that encourages unnecessary litigation.
However, the bill provides that the Law Society Northern Territory may make rules of professional conduct that, in effect, set the boundaries for such advertising. There are similar prohibitions on touting. As mentioned before, the working group made the perfectly valid point that there is no evidence that legal practitioners in the Northern Territory do, in fact, engage in advertising or touting that is elsewhere known as ‘ambulance chasing’. The government accepts the analysis of the factual situation. However, legislation must be designed to serve the future as well as the present day. Elsewhere in Australia and in the United States, there is evidence that some lawyers take an excessively entrepreneurial approach to drumming up business. Through this bill, the government hopes to set the parameters while giving the Law Society Northern Territory ample power to put in place rules that clarify what are appropriate boundaries.
This bill has been developed within the context of tort law and insurance law reform. In respect of the restrictions it places on legal practitioners, it does not go as far as laws enacted in Queensland and New South Wales. However, it does attempt to deal with the problems that may arise in the Northern Territory over the next few years or decades.
Additionally, I mention that some of the provisions in this bill arise from recommendations of the working group rather than from the provisions of the discussion draft of the bill. For example, those dealing with the generality of providing for costs statements, costs agreements, and the role of the Law Society in resolving about costs agreements. In respect of these matters, I especially seek feedback from the legal profession and other interested parties in the community.
In the time between the present and the time of the debate of the bill, I look forward to discussions with the legal profession and the community concerning the provisions of the bill.
Madam Speaker, I commend the bill to honourable members.
Debate adjourned.
SPECIAL ADJOURNMENT
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Assembly at its rising on Thursday, 27 February 2003 adjourn until Tuesday, 29 April 2003 at 10 am at the Alice Springs Convention Centre, or such other time and/or date and/or place as may be set by Madam Speaker pursuant to sessional order.
Motion agreed to.
MOTION
Alice Springs Regional Sittings
Alice Springs Regional Sittings
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that unless otherwise ordered, the days and times of meeting and routine of business in respect of the regional sittings of the Assembly in Alice Springs be as circulated last night.
Motion agreed to.
MOTION
Standing Orders Committee – Extension of Time to Report on Code of
Conduct and Ethical Standards
Standing Orders Committee – Extension of Time to Report on Code of
Conduct and Ethical Standards
Mr HENDERSON (Leader of Government Business): Madam Speaker, I move that the Standing Orders Committee be given an extension of time until June 2003 to report to the Assembly on the Code of Conduct and Ethical Standards reference provided to the committee on 20 June 2002.
Motion agreed to.
PERSONAL INJURIES (LIABILITIES AND DAMAGES) BILL
(Serial 108)
PERSONAL INJURIES (LIABILITIES AND DAMAGES) (CONSEQUENTIAL AMENDMENTS) BILL
(Serial 109)
(Serial 108)
PERSONAL INJURIES (LIABILITIES AND DAMAGES) (CONSEQUENTIAL AMENDMENTS) BILL
(Serial 109)
Continued from 17 October 2002.
Mr MALEY (Goyder): Madam Speaker, I indicate that, after considering the general thrust of both of these bills and examining them fairly closely, the opposition will not be opposing the passage of these two bills. There will be some matters I am going to raise. Probably most of my inquiries will be best undertaken during the course of the committee stage. There are some amendments that have been foreshadowed to me.
I am also indebted to some of the private practitioners in town who were kind enough to explain the real purport of the act and, using their experience, explained what effect, if any, the proposed amendments would have on the current regime. I am also indebted for the very comprehensive briefing I received from the representatives from the Department of Justice and the Attorney-General’s Office just a day or so ago, mainly in relation to the amendments.
I will keep this brief, because most of my concerns and questions can be addressed during the course of the committee stage. However, the issue of public liability, the issue of personal injuries and liabilities and damages and capping it, has been something which has attracted a great deal of attention after a year or so. There has been an enormous amount of lobbying from various peak groups, including the Insurance Council and the Law Council of Australia, as well as the various law societies around Australia. Whilst it has not been a powerful lobby group in the Territory, there are some groups, certainly in New South Wales, that have been lobbying on behalf of people who are probably in that category of most likely to have to rely upon suing somebody - not victims, it is a plaintiff association.
There are a number of issues and they have been fairly well summarised in the November 2002 magazine Australian Lawyer, the newsletter of the Law Council of Australia. One of the articles deals with the number of submissions that were made to the third ministerial meeting on public liability, which was held, I think, in October 2002 and which I understand our Attorney-General attended.
The Law Council wrote to all of the attending ministers, as well as the representatives from the Commonwealth, and provided a comprehensive analysis of the recommendations in the first report of Negligent Review Panel and the Legal Process Reform Group. The Law Council probably flagged four or five core issues which they felt were of real concern and should have been given more weight in the original report. Looking closely at the November 2002 Law Council of Australia newsletter at page 3 or 4, the Law Council says:
- Reform should be directed at both the insurance market and tort reform sides of the public liability
insurance issue.
In fairness to the Attorney-General, the amendments are in a piecemeal fashion. There are some amendments before the House today, and there are other pieces of legislation which will be considered later on. So, it is an evolving process. However, at this stage, there is no real attempt, or no real focus, on the insurance market and what can be done to reform that area.
There are, of course, general principles that tort law reform - that is the duty of care and the basis upon which most civil actions rely - should not contradict the principle objectives of personal injury law; namely, the whole basis of the common law of negligence and torts is a fair and just recompense for injured persons. I suppose the corollary of that is that, by having these obligations upon people to look after their neighbours by way of duty of care, it encourages a high standard of safety in risk management. There has to be, of course, a just allocation of wrongdoers in responsibility for compensation.
There also should be extreme caution taken in any move to restrict access to common law remedies for public liability injuries without a thorough study of the assertions and the assumptions that underlie cause for this action. There are quite compelling reasons why we, as legislators, should defend established common law positions, including the access to general damages and damages for economic loss.
It is a trap all too easily fallen into when we have parliaments - not just this parliament, but parliaments all around the Commonwealth - at the end of the day trying to grapple with the problem but what they do is they actually prevent, or make it more difficult for people who should be properly compensated in making a claim.
The key test is, of course, what is reasonably foreseeable. There are some quite compelling arguments for, rather than making it more difficult for people to sue someone if something has happened, grabbing the bull by the horns and codifying exactly what is meant by the term ‘reasonably foreseeable’. So, we are not going to restrict access to justice, but make it clear as to what return you are going to get, as opposed to saying: ‘Here is the carrot but, by the way, because you are poor, because you cannot speak English, and because your claim is less than $15 000, you are not going to have access to justice’. That seems to be the unfortunate consequence of the number of these piecemeal reforms across Australia.
The Law Council and the access to justice user groups have been of the view that a positive step would be to improve certainty for all community groups, rather than special arrangements for groups possessing a special legal need, or a particular lobby group getting the ear of a government - which was eager to maintain government - and the government bowing to that pressure by putting them in the special category and then govern them by a slightly different regime.
I am very proud to be a Territorian. I like the idea of being completely different from those on the other side from down south. However, in maintaining our unique lifestyle and all that, we are the least regulated than any other jurisdiction. That is quickly changing, of course, with the flood gates of legislation that the national Labor government would have up here, introducing these types of legislation – not this particular piece, but generally - which is really unheard of in the Northern Territory.
This is one area where there is a need for at least some national consistency. That is the concession I am willing to make, that there has to be a national - not just state and territory, but also the Commonwealth - approach to this problem. For limitation periods and the time in which claims can be brought, there should be a clear set of parameters so people understand, no matter where they live, these are the rules which govern us and this is the time frame in which we have to launch an action if that person has legal justification to do so.
There is also a strong and compelling argument - and one which has received support from the access to justice groups and a number of the law societies around Australia - making it easier for adults to assume risk. There are the classic exclusion clauses on the back of tickets and the like. There are quite compelling reasons to create a little more certainly. As it stands now, if an exclusion clause included is broad then, in certain circumstances, even though you have signed your life away or the exclusion clause says that you bear all the risk and responsibility for what occurred to you, it is so outrageous. Of course, the exclusion clause is not an indemnity for the person or the organisation which inflicted the harm or personal injury upon you.
However, that is not to say that, in certain situations, such as high risk recreational activities, there should not be appropriate codes of conduct. There should be a way for a person who provides or supervises that recreational activity to feel a little more protected by an adult consenting to hang gliding. I understand that, in New Zealand, they have these luges down hills. It is on concrete, so when people come off, they usually suffer gravel rash, but it is not uncommon to break an arm or leg. You have to sign a form, and New Zealand have a very clear set of parameters as to what an adult can consent to doing. It makes it easier for an adult to assume risk.
The very fact that the Attorney-General, through his office, had foreshadowed a number of amendments, peppering most of the Personal Injuries (Liabilities and Damages) Bill with a replacement of an entire division regarding non-pecuniary loss, confirms it is a complicated matter. It is one where government cannot say this is set in concrete; there will be an ongoing process. It is not an easy area.
However, I can say that the opposition will not be opposing the passage of this and the Personal Injuries (Liabilities and Damages) (Consequential Amendments) Bill 2002 (Serial 109). As I said, at the committee stage I would like to take it step by step. In fairness to the Attorney-General, I actually flagged a couple of the queries that I was going to raise, so you are not ambushed there.
Dr Toyne: Yes, we will deal with them.
Mr STIRLING (Treasurer): Madam Speaker, I support the Personal Injuries, (Liabilities and Damages) Bill and the Personal Injuries (Liabilities and Damages) (Consequential Amendments) Bill. I will also be speaking in support of the Consumer Affairs and Fair Trading Amendment Bill, but I understand that is not part of the debate before the House just at the moment.
I listened closely to the shadow Attorney-General outlining where the opposition stood in relation to these bills and he expressed a clear understanding that it would not be the Territory’s first wish and want to get into this restricting type of legislation. However, the facts have been made very clear at the national councils - and he also showed an understanding of this – that, unless there is at least consistency across the board in every jurisdiction, the jurisdiction which did not join the table in bringing together the raft of measures across Australia, would be wide open for litigation in this area. It is also necessary that, if these measures are going to have an effect on premiums and payouts over the longer term, then clearly, every jurisdiction has to be at the table. If not with a blueprint across the board, then at least a strong measure of consistency in the measures being taken. That does not mean they have to mirror precisely what New South Wales or Victoria is doing, but the same approach and strategy has to be adopted. As I said, the shadow Attorney-General showed a very clear understanding of that, and that is where the Northern Territory has been.
The difficulty in this area has primarily been in New South Wales, the largest jurisdiction in Australia and that jurisdiction which, I guess, seems to most closely follow United States patterns of law and litigation. We have seen it again in this area, where New South Wales has been opened up with some quite absurd, bizarre-type payouts which, of course, belts the premiums. To us, as a small jurisdiction, the insurance companies do not stand back and say: ‘The Northern Territory has not had any claims in this area’. They take the global view. They take the international view in the sense of not only is the Northern Territory not considered as a separate jurisdiction in the way they frame their premiums across the board, Australia itself is about 1% of the whole international global market. Therefore, regarding the Northern Territory picture, we do not get a look in. However, the principle applies that we have to join that consistency of approach across the board.
Both of these bills represent this government’s second stage in the package of legislative reforms in response to that increase in cost and reduced availability of public liability and medical indemnity insurance. This is an important national issue. Members would be aware of problems in their own electorates and current difficulties impacting on the Territory community. In my case, it was the local speedway. Other areas of the Territory have had horse riding, adventure tourism, everyday community events, to local businesses and home owners, and the cost of public liability insurance adversely affecting our way of life in the Territory. Worse still, is the case of some organisations which cannot get cover at all.
While I only took responsibility for insurance as Treasurer towards the end of last year, I have been involved with these issues for some time. I attended three of the four national ministerial meetings held to date; one of those prior to being Treasurer. I want to reinforce to the Assembly the enormous sense of a great deal of goodwill and motivation amongst the Commonwealth, the states and the territories to deliver effective reform across this area.
I congratulate Senator Coonan, because it would not be the easiest environment for her to operate in as Chair of this ministerial council. She is the one conservative minister amongst all the state and territory ministers and is the only woman. However, you have to hand it to her; she has done a wonderful job of chairing these councils on this cooperative basis of ensuring everyone stays in the tent and keeps their eyes focussed on the main game. I have to say the same for all of the state and territory ministers; there has been enormous cooperation. The manner in which solutions have been bought forward and progressed through the states is remarkable.
Some people have a view that ministerial councils are, largely, a waste of time. In this case, I have to say it has been an outstanding example of a very strong consensus emerging from all ministers to try to get it right. We had, at one stage, Justice Ipp deliver a quite lengthy explanation of the Ipp Report into that area of negligence. With his experience from the bench, and the trends of law over time, it was very enlightening for everyone to understand - from the other side, from where the judges sit and how they see it, and how many of these cases came about and the effects they have had on the insurance world. We have had, at different times at ministerial councils, the Insurance Council of Australia come into that council, put their case and be questioned by the ministers. It has been an educative process from the point of view of ministers having to understand how it has all got to where it is, and that involves cycles of insurance costs on a global scale, as well.
Small jurisdiction we may be, unable to affect the national insurance market, but we are, of course, heavily influenced by national developments ourselves. We do have - and I reiterate - that part to play and we have to continue to play our part in the overall process. These two bills represent a major step in addressing the problems.
The national advisors, Trowbrige Consulting, pointed out at the first national meeting that a large part of the problem stems from a long-term increase in the cost of personal injuries claims. In the Territory, Trowbrige tells us that the cost of personal injuries claims has increased at a rate of 18% per year over the past five years. The current bills seek to address this by limited damages claims for personal injuries but, again, in line and consistent with those reforms being pursued across Australia.
A number of the Territory’s reforms, related to the determination of damages awards, are further supported by the National Review of the Law of Negligence, the Ipp review. As agreed at the last national meeting on 15 November 2002, further legislation will be required to implement those recommendations of the Ipp review that relate to the determination of liability for negligent behaviour - again in line with those reforms already enacted by New South Wales.
The Territory is committed to this nationally consistent approach to legislative reform in this area. We will soon put forward a draft discussion bill outlining the Territory’s response to the core Ipp review recommendations relating to negligence. In developing these bills, the Territory government has consulted with insurers, the legal and medical professions, business, and other members of the community. Some members of the legal profession, particularly the plaintiff lawyers, do not agree with placing limits on damages awards or some of the other measures in the bill. However, the Territory has already done that in the past in similar areas, particularly workers’ compensation and the MACA scheme, with the support of the community, and public liability cannot be seen to be different.
In many areas, the measures in the bill simply reflect community attitudes; things like prohibiting the recovery of damages if the injured person was committing a crime; requiring drug and alcohol use to be taken into account as contributory negligence; protecting volunteers or good Samaritans who are doing a good turn for others in the community; and insuring that doctors and other people can express regret without it being construed as an admission of liability.
Another major focus of the Personal Injuries (Liabilities and Damages) Bill is on placing reasonable limits on certain elements of damages awards. In particular, the bill limits the amount of compensation awarded for general damages for pain and suffering and economic loss, but does not limit compensation for hospital, medical and nursing costs. The Territory’s limits on gratuitous attendant care are consistent with the recommendations of the Ipp review, and the Territory’s cap on economic loss of three times average weekly earnings is in line with the limit adopted in most jurisdictions. Less than 2% of employees earn more than this amount, so only very high income earners would be affected under that provision.
The bill, as introduced in October, included a threshold on general damages of $15 000. The idea behind the threshold is that it would help reduce the number and cost of those lesser claims - the minor slips and falls - because those tend to involve a high proportion of legal costs relative to the level of compensation being sought. However, the $15 000 threshold was subject to criticism by insurers on the basis that it could be subject to ‘creep’, and the perception that inflated claims for minor injuries may be pressed by lawyers and accepted by the courts to ensure that the claimant did, in fact, receive some compensation for pain and suffering.
Therefore, on the basis of further stakeholder consultation and analysis by the government, the Attorney-General today will move a committee stage amendment to the Personal Injuries (Liabilities and Damages) Bill to replace the $15 000 threshold with a medical impairment model for assessing awards of general damages. This model will have a 5% threshold and a scaling of awards up to an index cap of $350 000. That is not an easy decision for the government to make, as the medical impairment threshold may act to actually limit lower levels of awards for general damages to a greater extent than the imposition of a $15 000 monetary threshold. However, that is not the reason the government opted for this approach. The government went this way because one of the major benefits of this type of threshold model is that it uses objective criteria in determining general damages. It provides a much higher degree of certainty for the insurer, the insured and the injured person regarding the likely level of damages.
Another advantage is that the system operates along these lines in the Territory’s workers’ compensation and MACA schemes, has for a long time, and is well known throughout the Northern Territory. Furthermore, TIO has advised that, with the adoption of the impairment model, the availability and affordability of public liability insurance would improve more than with any other threshold model. As actuarial advisors, Trowbrige, have indicated the key to reducing claims costs is to have an effective threshold on general damages for pain and suffering. This is backed up nationally by further work done by PricewaterhouseCoopers, which was considered at the national meeting in mid-November.
In introducing the bills, the Attorney-General flagged that there is no precise science for setting caps and thresholds, and the government remains committed to a further review of the threshold and cap by the end of 2005. The Attorney-General will provide further details on that committee stage amendment shortly.
Other provisions of the bill that impact on the determination of damages awards, and which virtually all states are adopting, include: abolishing punitive and exemplary damages; setting prejudgment interest on damages awards at the 10 year Commonwealth bond rate; setting the discount rate for calculating future losses at 5%; and permitting courts in the Territory to approve or consent to structured settlements as an alternative to lump sum payments.
Some of those measures may not have a significant immediate impact, but they are another step in increasing certainty for insurers and improving the availability and affordability of insurers. Given TIO’s role in the Territory market, I am confident the long-term impact should be lower premiums and more widely available insurance than would otherwise have occurred without these reforms. I am confident the reforms contained in the Personal Injuries (Liabilities and Damages) Bill will reduce the cost of claims for personal injuries and curb the future rate of growth of claims costs in the Territory.
The Personal Injuries (Liabilities and Damages) Bill represents an important component of our law reform package which will provide an effective response to the current problems. As I said, the Attorney-General will provide further detail.
The Attorney-General has also introduced in these sittings two new bills relating to court processes and legal advertising. The Personal Injuries (Civil Claims) Bill and the Legal Practitioner Amendment (Costs and Advertising) Bill contain reforms that will benefit both claimants and defendants by providing for the more timely resolution of claims. This will provide a greater level of certainty for all parties and help reduce the cost of personal injuries claims.
Further legislation will have to follow on the remaining recommendations of the Ipp review. Justice Ipp himself argued very strongly that, out of all the recommendations that he provided, there were a number that had to be implemented nationally, and on a consistent basis if his recommendations were going to have any affect at all. We are certainly of that view, as are other jurisdictions, so there is more work to be done and further legislation to come forward.
In combination, the measures should improve the affordability and availability of insurance for the many not-for-profit organisations, businesses, medical practitioners and others in our community which have had a tough time because of the insurance crisis. Madam Speaker, I urge support of these bills.
Ms CARNEY (Araluen): Madam Speaker, I make a couple comments. Before being elected to parliament, I was what they call a personal injuries lawyer, so this was the stuff I spent most of my time dealing with. I have acted for plaintiffs, as well as defendants, in very significant personal injuries claims, as well as for some insignificant - in terms of monetary compensation - claims.
I understand, probably like most other Australians, why it is that the jurisdictions and the Commonwealth have sought to act in relation to the difficulties that are being experienced as a result of increased insurance premiums. I understand the arguments that have been put, not just in this parliament but in others. My concern is twofold, one in relation to this particular bill lowering the threshold or, should I say, making it more difficult for people with very small claims to pursue their claims in a court. In a real sense, we are dealing probably with people who get a fractured wrist or leg as a result of someone else’s negligence. Unless, as I understand it, their injuries amount to 5% overall bodily impairment, those people will not be eligible for compensation.
I am not particularly fussed about what lawyers think about these changes, but I am particularly interested in some of the clients I have acted for over the years, and some people who might ordinarily be clients in the future. When they spend their $250 for an hour’s worth of advice at their lawyer’s office, in relation to an injury not caused by them but caused by someone else’s negligence, and that lawyer tells them: ‘I am sorry, your injury is not significant enough, you have no claim’, that is an area of great concern.
I am also concerned about where this national push is taking us. Let there be no misunderstanding. My colleague, the member for Goyder, has expressed with his usual eloquence, the opposition’s position in relation to this bill. I simply note this caution: that there is nothing in this bill, or any others - and I understand why there is not - prescribed on insurance companies in this country providing a guarantee that, as a result of all this pile of legislation, insurance premiums will go down.
The carrot and stick approach ought to be applied. I will bet London to a brick, that the insurance premiums will not be reduced in response to this and other legislation. For all of us, as legislators, that is a bad outcome, a very bad policy. I know the position that insurance companies have taken. The banter about how lawyers have caused all of this and been mostly responsible for increasing claims is an absolute nonsense. The lawyers, it seems to me, have little room to move, because the media and others are very happy to say: ‘Oh well, they are just the lawyers, they have a vested interest’.
However, it goes much deeper than that. Apart from small claims not being able to be pursued, the fact is that there is no obligation on insurance companies in this country to respond in a positive way to this and other legislation. I would have liked to have seen insurance companies provide, if not a guarantee, an indication that, as a result of all these changes, the premiums will go down. As I said, I do not think they will and I urge this government and all others to keep an eye on that. For all of us, from a social policy point of view, it would be a crying shame if all these changes were made to personal injuries law and nothing actually happened, except that small claims could not be pursued and that there is a cap on damages and the insurance companies continue to make …
Mr Stirling: ACCC is watching them.
Ms CARNEY: Oh, shut up!
Madam SPEAKER: Order, member for Araluen.
Ms CARNEY: The insurance companies continue their push and the claims will continue to rise. I have spoken informally to the Attorney-General about this and I know that he shares my concerns. Prior to debate of this bill in the committee stage, it is appropriate for me - not just as a member of parliament, but for a lawyer who worked in personal injuries litigation - to express those concerns.
Mr WOOD (Nelson): Madam Speaker, I also support the member for Araluen’s comments. It is one of the reasons I was going to say a few things. I am certainly not going to comment on some of the more intricate matters of the bill. However, in the second reading of this bill, what comes through, time and time again, is an indication that these changes will either slow down or reduce premiums. The minister said:
- The overriding aim has been to improve the availability and affordability of personal injuries insurance for
all sections of the community. As most of the reforms relate to liability for personal injuries, more generally,
they are expected to have benefits for both public liability and medical indemnity insurance.
Later on, the minister said:
- Some sectors of the community have expressed concerns that these savings in claims cost may end up lining the
pockets of insurers rather than benefiting policy holders. In the Territory, the Territory Insurance Office has
a significant market share in public liability insurance. Competition between TIO and other insurers should
result in savings in claims costs being passed on in insurance premiums.
Further, he said:
- The government acknowledges that if current insurance premiums are still too low, the effect of the reforms may
be to contain future increases rather than to reduce premiums. Nevertheless, the nett long-term impact of the
reform should be lower premiums and a more widely available insurance cover than would otherwise occur
without these reforms.
Just finally, in the last stage of the second reading speech, the minister said:
The measures in the bills are expected to help contain future growth in claims costs. In turn, this should improve
the availability and affordability of insurance to small businesses, not-for-profit organisations, medical practitioners and other sections of the community hardest hit by the current problems.
The general thrust of these changes has been to try to lower, slow down, or reduce premiums. I take up the point of the member for Araluen, I do not believe, unless there is some way that you can make the insurance companies change premiums, that that is actually going to happen.
I should, perhaps, read a couple of things about the profits that certain insurance companies are making. This is a market announcement from QBE: ‘QBE increases 2002 profit expectations’. That is the heading.
- Following a regular meeting of directors this afternoon which reviewed the group’s unaudited preliminary
results, QBE advised that it expects to exceed insurance sector analysts’ median projected 2002 operating
profit, after tax, of approximately $238m by around 15%.
The increase in profit expectations is primarily due to underwriting margins being better than expected,
resulting in insurance profit to nett earned premium at slightly in excess of 7%, compared to the 6%
to 6.5% previously advised to the market. QBE’s provisions for outstanding claims remains strong,
including prudential margins consistent with prior periods after allowing for the impact of lower interest rates.
There is also another insurance company that released some details, Suncorp Metway. Suncorp Metway Chairman, John Lambell, announced that they have made a $311m nett profit for the 12 months to June 2000. These are fairly substantial profits in times when we are told the world is coming to an end. All right, one might talk about AMP and their big losses, but I am not sure that has to do with insurance; that is someone investing money where perhaps they should not. But here are two insurance companies making quite substantial profits.
Governments need to be, on one hand, certainly trying to legislate to reduce, you might say, frivolous claims, but also, on the other hand, to balance that with looking at the profits insurance companies are now making, and start asking questions as to why premiums are not being reduced.
I put that forward because it is an important part of the debate. I certainly thank the member for Araluen for raising it as well because, without that side of the debate, the debate will not be balanced.
Mr KIELY (Sanderson): Madam Speaker, I support the second instalment in the Territory government’s package of legislative reforms. My colleagues have been reminded that, in October 2002, Commonwealth, state and territory ministers agreed in principle to consider nationally consistent legislation covering liability for personal injury or death resulting from negligence. The Territory government is now at a point where it is able to introduce legislation that will reduce the cost of personal injury claims and the rate of growth of future claims.
It is good that the opposition supports this bill. However, I was quite surprised by the member for Goyder’s denial of the issues that stimulated the introduction of this bill. Yet again, we see that the CLP has not learnt, has not changed, has no new ideas, and are about the past, not the future.
Global and national events have directed the Territory government to act in the best interests of the community in bringing about these reforms. These reforms are required due to the increased cost and reduced availability of public liability insurance. This circumstance appears to be the consequence of a long-term trend of increasing claims costs, particularly for personal injuries and, in short term, a difficult insurance market characterised by correction in pricing following a period of under-pricing during the second half of the 1990s.
For this, we must look firmly at companies such as HIH, and the withdrawal of insurers from some high risk segments of the market. I do not have to remind my colleagues of the concerns voiced strongly by organisations such as show societies, councils and a host of other voluntary organisations, about the costs or, indeed, their inability to obtain public liability cover. This was a terrible position for those groups to find themselves in, particularly given the value and regard that we in the Territory hold for our community events.
The Martin Labor government is about building our future and protecting the Territory lifestyle. Territory lifestyle is something that the Martin Labor government holds and cherishes dearly. It is with great concern that we listen to the dilemmas facing our civic-minded organisations, and it is with great thought that we now act upon these concerns so that we can maintain and provide an even more fertile environment for our established and future public events to be staged.
We are able to do this through a number of mechanisms in this legislation. A particularly strong tool to keep downward pressure on premiums is the introduction of a cap of $350 000, and a minimum medical impairment threshold of 5% of whole of person on awards for general damages, or for non-economic loss such as pain and suffering. It is important to note that there is no cap on hospital, medical, nursing or rehabilitation costs.
Some listeners to my speech, such as the member for Araluen, may well pose the question: why is a threshold 5% of whole of person necessary? Quite simply, the objective of a threshold is to discourage unmeritorious claims for non-pecuniary damages, and uneconomic small claims, and thus, better allocate limited community resources.
The facts are that some claims are try-ons. Respondents, usually through their insurance companies, often pay compensation despite the lack of legal merit of a claim because it is cheaper to pay out rather than to contest the claim, while some claims, although having legal and factual merit, cost society as a whole too much. The relatively small quantum of damages claims does not proportionately reduce the insurer’s investigation management costs, including legal and medical expenses. This makes claims for non-pecuniary loss under the threshold an inefficient means of delivering compensation, since the cost to the community through higher insurance premiums is not appropriately reflected in the compensation received. That is, the outcome in compensation to the victim of the negligence is not justified in terms of the overall cost to the community. The community, historically, pays directly through the costs of maintaining the medical legal system and, also, through insurance premiums that must cover both compensation claims and the processes leading up to payment of claims.
Some of the advantages of a permanent impairment threshold are that it provides a standardised, objective approach to evaluating medical impairment. Because of this, awards will not creep high to overcome perceived inequities in the application of the threshold. It is for these reasons that the Ipp review prefers the medical assessment impairment model, as it is based on a system of independent assessment using objective criteria and is, therefore, likely to produce the most reliable and consistent results. The system is a transparent, objective and rational basis for providing greater certainty for insurers and claimants.
Medically assessed non-pecuniary compensation, based on published guidelines, would result in more consistent awards of compensation regardless of the age, gender, racial, cultural or socioeconomic background of the claimant. Indeed, the medical impairment model will make public liability compensation more equitable in that it will be the medical condition of the victim, rather than the glib expertise of the lawyer, which will be the determining fact in the level of compensation paid.
This is another example of the Martin government delivering for the many, not the few. It is a relatively cheap process. The Territory Insurance Office has noted that permanent impairment assessments carried out are usually quite straightforward and result in few disagreements. As the minister has previously noted, by providing a ceiling of pecuniary and non-pecuniary loss, there will be a greater degree of certainty and predictability for insurers, and that will bring about improvements in availability of insurance.
We have all heard stories about people taking large sums in compensation for what it seems are accidents that have occurred largely due to the individual’s own negligence. I will not go into them here, but there are recent cases in New South Wales and, arguably, there are likely to be some here in the Territory as well. What really stands out about such cases is the unpredictability of the sums of compensation paid out for pain and suffering. This volatility makes it an actuary’s nightmare and, in the end, translates into higher premiums for all. The cap of $350 000 proposed in this legislation will inject a strong level of certainty into an actuary’s assessment of risk to the insurer which, in turn, will bring about a lessening of the volatility of premium price rises over the coming years.
There is a lot more to this reforming legislation than just bringing certainty into the fee and compensation aspects of the public liability. These reforms also address the issue of liabilities for personal injuries of volunteers in community organisations. It also addresses the situation where a person offers assistance or aid to a person who is apparently in need of emergency assistance; in other words, a good Samaritan. This component of the legislation should be welcomed by the members for Port Darwin and Greatorex. I am sure we all remember how they came to the aid of our current Lord Mayor when he was involved in a head-on car accident while returning to Darwin from a CLP party meeting. As I recall, both the members for Greatorex and Port Darwin rendered assistance to the Lord Mayor and his partner. This legislation takes into account the situation where people with medical qualifications act in a manner of a good Samaritan. A good Samaritan with medical qualifications does not incur personal civil liability for advice, given in good faith and without recklessness, about the treatment of the person being given emergency medical assistance.
In the case of community organisations, a volunteer does not incur personal civil liability for a personal injury caused by an act done in good faith and without recklessness while doing community work for a community organisation. This means that our government is ensuring Territorians will continue celebrating and enjoying our unique lifestyle.
This legislation, which a community could be rightly happy with, is a means by which individuals are empowered to make expressions of regret without that statement being used at a later date as an acknowledgement of fault. Thanks to this legislation, a person may make an oral or written statement expressing regret for an incident that is alleged to have caused the personal injury. Such a statement does not contain an acknowledgement of fault by that person, and is not admissible in future proceedings. I do not know how many times each of us here have heard stories where people wanted to say sorry but were constrained by fear that saying sorry might mean some liability. The same goes for all the times people have stated all they wanted to hear was the person who caused the accident to say sorry so that closure could be effected. I believe this clause alone will have a significant affect on the frequency of claims.
We hear, all too often, from the uninformed or those who wish to trade in mischief, of how people engaged in crime can sue the victim if the criminal sustains a personal injury on the victim’s property. Well, that urban myth is totally debunked by this legislation. If a court is satisfied, on the balance of probabilities, that the injury occurred while the injured person was engaged in conduct constituting an offence, and that injured person’s conduct contributed materially to the risk of that injury, liability will not be incurred. This position is moved from the Law Reform (Miscellaneous Provisions) Act to this bill so the relevant provisions impacting liability and damages can be accessed in one piece of legislation, so far as practicable.
The community has been hard hit over the last year or so in regard to public liability. The situation that arose is beyond the control of government, and was due to a range of factors, including escalating claims costs and uncertainty of awards made by the courts. It was also, at least in part, due to poor market practices by a now disgraced insurer. The Martin Labor government, like its other Labor counterparts throughout the Commonwealth, has consulted widely and taken into account both the Ipp review and the Neeve report. Our government has consulted widely with stakeholders across the full community spectrum, and has developed comprehensive reforming legislation that should help contain future growth and claims costs, in turn improving the availability and affordability of insurance.
I thank all those community groups which provided the submissions and, once more, thank the officers of the Department of Justice and the minister and his staff, for legislation that will be of benefit to all members of our community. Madam Speaker, I commend the bills to the Assembly.
PERSONAL INJURIES (LIABILITIES AND DAMAGES) BILL
(Serial 108)
PERSONAL INJURIES (LIABILITIES AND DAMAGES) (CONSEQUENTIAL AMENDMENTS) BILL
(Serial 109)
(Serial 108)
PERSONAL INJURIES (LIABILITIES AND DAMAGES) (CONSEQUENTIAL AMENDMENTS) BILL
(Serial 109)
Continued from earlier this day.
Mr ELFERINK (Macdonnell): Madam Speaker, I make a few observations in relation to this, rather than make a direct comment on the bill itself. The comments that I make deal with the role of the insurance industry in all of this.
The problem with the insurance industry is how they have approached this issue. I have always been under the impression, quite naively, that when you pay an insurance premium the money then goes into an account or some sort of trust account, or it is invested in some nice, safe property somewhere and, as a consequence, when an insurance claim is made, the insurance industry then removes that money from the trust account that it holds the insurance in and pays out the claim.
My misapprehension, which is a very common one, could not have been further for the truth. This is one of the problems, where the insurance industry has clearly demonstrated their corporate approach, which is more inclined to worry about shareholders than the people who are insured under them. As a consequence, we then find governments, of both flavours, who are forced to bring legislation like this into the House.
What actually happens to an insurance premium when you pay it, is that the premium is taken by the insurance company and it is invested in very safe types of investments like the stock market and foreign investments. Those areas of investment are legitimate, to a degree. The stock market, foreign investments, trading in currency and all those things can be very rewarding in terms of their returns. However, the higher the return - you can almost guarantee the inverse rule - the greater the risk.
What has occurred is that we see insurance companies making investments which are not healthy investments. We heard the member for Sanderson refer to HIH, and that is a point in case. AMP’s foreign investment into England, which has been in the news recently, clearly demonstrates that they have not been all wise at all in their investments. In fact, the AMP share price has fallen from its original float price - or just after float price - of $45 to a little over $7 today. That $45 spike was brief - very brief indeed. It quickly fell to $22 and then stabilised for a very long time. Since the downturn in world markets, AMP prices have started falling through the floor.
How does this relate to public liability? The fact is that, in competition with each other, insurance companies have been maintaining premiums at a low rate. They have not been keeping up for many years with CPI because, in a bull market their investments, which were the premiums paid, were placed into high risk/high return type investments and everything was sweetness and light. However, now we are starting to see those investment decisions coming home to roost. The investment decisions that they have made have been poor and are now returning losses. We hear profit downgrades coming all the time through the insurance industry and losses being announced. All of a sudden, that money which was once there to pay claims is no longer available.
The insurance industry takes an almost myopic view of their own performance in relation to all of this. What they have said is: ‘Oh well, it is all these dreadful, horrible claims which are forcing us to drive up the price of our premiums, and it is all of those horrible, dreadful lawyers who are pursuing these claims, and these dreadfully weak courts which are making these outrageous pay costs, which are driving all of this’. There is an element in that, but to look at it in those terms, it is a little like trying to describe a car by only concentrating on the front right tyre. The performance of these insurance companies, in many instances, has been poor. Where there have been warning signs, they appear to have ignored those warning signs. Where there has been a certain element of speculation on their part, they have ignored the threats and risks that comes with that form of speculation. Therefore, what we have here before us today, unfortunately - and this is no reflection on the government - is a bill which really reflects a poor performance of corporate governance by insurance companies.
Where this occurs, the insurance companies should be looking inwards and saying: ‘What did we do wrong?’ Instead, what they are trying to do is blame other people, and this is the most worrying part of this whole trend. Rather than them saying: ‘Oh, we have made a mistake. Oh, we may have done something wrong. Oh, we have not really been smart about what we are doing’, they are immediately shifting the blame and not asking themselves the question. Even when the international markets improve, you are going to find that they are going to engage in exactly the same speculative behaviour as they did in the past. Why? Because they have a competing insurance company over here to deal with, and a competing insurance company over there to deal with and, unfortunately, at the end of the day, who ends up paying? The poor punter who has a premium or the poor old taxpayer. Who ends up paying in this instance? The poor old punter who slips over due to a negligent condition on somebody else’s premises.
Although, on a case by case basis, these issues have to be established by the court, the government is now forced to try to limit the payments that are made to these people. It is not because the insurance company ran out of money because the courts have been issuing payments that are too high, it is because insurance company speculation has not paid off and they now have to shift the costs, of course, onto the poor punter in the street.
Therefore, Madam Speaker, we have to be supportive of the legislation that the government has bought forward. It requires some investigation but, at the end of the day, the corporate governance of insurance companies and the way that they have treated their clients over the years, seriously needs to be investigated.
Dr TOYNE (Justice and Attorney General): Madam Speaker, first of all I welcome the indication of at least general support for the bills, as indicated by the opposition. I certainly welcome that, because we have to finalise this matter. I will be very happy to deal with the individual concerns that you might have during the committee stage. Given that approach to it, I will not use this particular part of the debate to go over the intended amendments in detail. We can deal with those as they come up in the committee stage. I will respond, in broader terms, to the issues that were brought up by members during the second reading speech debate.
I indicate to members that I share your concerns about the potential reaction, or lack of reaction, of the insurance industry to these national reforms. As the member for Nhulunbuy pointed out, Australia as a whole, let alone the Northern Territory, is a very small player in what is a globally-based industry, particularly with the practice of insurance companies going to reinsurers to hedge their bets to have more weight in the global financial market. We are dealing with refinanciers who have budgets the same size as medium-size countries. It is impossible to give any really absolute guarantee that the insurance industry will react appropriately to these reforms.
Two things I can offer some assurance on are that the federal government has instructed the ACCC to pay particular attention to the movement of premiums and coverage being offered by the insurance industry and, to the degree that they can influence things, that will be done. The second, and probably more important point that I want to make, is that, embodied in these bills is reform which is good to do in its own right; it is not simply because of the particular situation with the insurance industry.
When COAG proposed the broad outlines of a reform package in these areas of law and the operation of our legal system and courts, we have, wherever possible, tried to frame them in the context of the Northern Territory to things that you would want to do anyway. The key example of that is probably one of the major parts of the amendments we will be talking about later, is the introduction of an objective system of assessment in the form of the medical impairment model, replacing the general damages area of claims as they are at the moment. We genuinely believe that this will be a more equitable and accessible process than what currently exists in the Northern Territory. We believe that, for example, it would give indigenous people more likelihood that they will be able to take advantage of a claim in the event that they do suffer damage or injury due to negligence.
I would be very happy to bring those reforms in here, even in the absence of a crisis in the insurance industry. In fact, I have tried wherever possible, in my carriage of legislation, to be able to stand up with a clear heart and say: ‘I have done my best for the Northern Territory; I have tried to deliver helpful reform to our body of law’. I can say with absolute certainty today that I am committed to the reforms that I am proposing, and they will be of benefit to people.
As to what the insurance industry does, we all have to hope. I am afraid there is absolutely no guarantee out there that I have been able to pick up at any level in this national debate. We have to trust one factor or another - whether it is the reforms that we have brought forward in legislation or whether it is the financial cycle that the insurance runs to anyway - will alleviate the situation over time into the future. I certainly do not need any reminding of the difficulties that this insurance situation is creating in our community.
I met, only two weeks ago, with a member of the Kiwanis in Alice Springs who said that in the last 12 months, they had raised $3500 and $1500 of that went to insurance cover. That is absolutely ridiculous. We have to keep working to whatever degree we can to influence that situation. I believe, in the four bills that we are bringing through parliament at the moment, we have done what government can do to influence the situation. Outside our influence is financial matters of a global nature that we have absolutely no control over, and it would be dishonest to pretend that we have. To take that point which was brought up by pretty well by all speakers in the debate, I am bringing this forward, as I said, as a logical reform, and as a reform package that I have some confidence in.
Regarding the other point of national conformity, we are on the line here, as being a member of national forums - whether it is the national council attended by Treasurers, or whether it is the Standing Committee on Attorneys-General. We are all working on this together and, even if it was a matter of symbolism of not breaking ranks with the other jurisdictions which are trying to collectively deal with this, we need to be committed to uniform national reform to the degree that it does not actively harm the interests of the Northern Territory. In the reform package we have brought forward, there are no elements that, in my judgment and the judgment of those who advised me, would actively disadvantage people or organisations here in the Northern Territory.
We may not contribute much to the weight of the national reform because of the very small size of our population and our insurance industry. However, collectively, we have held rank with the other jurisdictions in Australia. We have done that without having to compromise our local interests, and I believe that we can all at least say that, to the degree that government influence can be brought to bear on this situation, we have all done our part.
As to what the member for Araluen had to say, I want to make one very important point: that the reforms that we will be talking about today, on general damages, pain and suffering, do not apply to the other major domains of compensation in these types of cases. Economic loss, medical expenses are separate and freestanding domains. This will not affect those in any way. This is dealing with the general damages of this area of law. When we get to the medical impairment, I could give an early example of the classic one of a concert pianist who loses a finger. Certainly, that person’s finger will not be worth any more than an unemployed person’s finger that gets lopped off as a result of some negligent action. However, in the economic loss area, there would be a very considerable claim, I would imagine, for someone in that type of vocation. So, there are checks and balances between the three areas that constitute these types of actions.
The caps on damages, while it could be seen as an arbitrary judgment on our part as to where to place that cap and what quantum to give it, we have been guided by two different considerations. One is that we looked at the history of claims in the Northern Territory and found that there were no claims, that we were aware of, over that particular cap. Therefore, it is not going to have very much impact on the amount of money paid out on very large claims. Trowbrige, in their estimate of the impact of these various reform proposals, when they looked at the issue of a cap, judged only 0.1% difference in the claim levels with the introduction of a cap. So, it has no real impact on the overall amount of claims that would be coming through the Northern Territory and, obviously, impacting on the insurance industry. Where it is critical is that, given that we have introduced a system based on a medical impairment model, the cap actually determines the whole scale of payments according to the degree of impairment; so it is a very critical number. We have chosen a cap which lands the payments certainly more generous than MACA. However, at the lower end of the scale less generous than common law; at the higher end of the scale probably a bit more generous. We tried to come in at a level that does not disadvantage those people who have suffered the most from a particular disaster.
I take the point that lawyers should not be solely blamed in this situation. I am not silly enough to get up here and say every lawyer ever born and trained is an absolute virtue of good behaviour and public morality. Unscrupulous behaviour is a minority in the profession; the vast majority of lawyers do a decent and honest job in their profession. I have done my best, as Attorney-General, to defend the profession from unwarranted attack. It is fair to say that, nationally, we have had two great polarities - like trying to find a balance point. One has come from the Treasury sector and it has been based on economic and financial arguments; the other has come from the Attorneys-General and the legal profession, who are worried about fundamentals of law and the impact on people’s rights and the reputation of their profession - quite rightly so.
I would like to think that we have embodied in this reform package the correct balance between the economic considerations that have to be in there because, if we are going to make reforms, there has to be some predictable impact on the level of claims, even if that does not necessarily guarantee a particular response from the insurance industry. There is no logic in taking on reforms which have no discernible impact on what the insurance companies are reacting to. I guess we will be judged by history and by quite a few of the stakeholder groups in the Northern Territory and beyond, as to whether we have that balance right. However, we certainly have been attempting to get that balance into what we do.
Madam Speaker, that is probably all I would want to say at this stage of the debate, and we will move along to the committee stage.
Motion agreed to; bills read a second time.
In committee:
Personal Injuries (Liabilities and Damages) Bill 2002 (Serial 108):
Clauses 1 to 3, by leave, taken together and agreed to.
Clause 4:
Dr TOYNE: Mr Chairman I move amendment 31.1. Clause 4(2) provides that the act only applies to personal injuries that occurred prior to the commencement of the act. This amendment provides that the provisions of the act dealing with structured settlements apply regardless of when the injury occurred. Under the structured settlements provisions the parties can, with the approval of the court, agree that payments be made in stages rather than as a lump sum.
Amendment agreed to.
Dr TOYNE: Mr Chairman, I move amendment 31.2. Clause 4(3) of the bill provides that the regulations may prescribe a claim or class of claims that are excluded from the whole or part of the scope of the operation of the act. The main effects of any such exclusion will be that such claims will not be affected by the threshold, the cap, or the requirement that damages or non-pecuniary loss be assessed on the basis of permanent impairment.
Mr MALEY: Minister, I understand what you are doing by particularising some of the particular causes of action in statutes which will be excluded from the application of this act. However, it still does not deal with my fundamental concern; that is, there is a provision in section 4(3), which enables the regulations to exclude a claim or class of claims from the operation of the act. Does that not really fly in the face of the basic principle that major changes - and it would be a major change to exclude a cause of action pursuant to some statute from the operation of this act? Do you not think that would be more appropriately done by way of an amendment through this parliament where it could be properly tested and, at the end of the day, make it more easily accessible to those people who have to work with this act every single day?
Dr TOYNE: Mr Chairman, perhaps if I give more detail on what these exclusions would involve. Clause 4 is proposed to be amended so it sets out the following claims to be excluded from the operation of the act: claims arising from accidents within the meaning of the MACA, the Motor Accidents Compensation Act; claims arising out of injuries covered by the Work Health Act; claims for damages arising from personal injury arising from dust-related conditions such as asbestosis; claims covered in the Crimes (Victims Assistance) Act; and claims arising in respect of the supply of dangerous goods, being goods that, in one way or another, have been the subject of legislative prohibition in the Northern Territory or elsewhere in Australia.
The exclusions covered have been made because they are all covered by other legislative schemes which, to take your point, have been subjected to parliamentary scrutiny in their own right. The product liability exclusion has been made following submissions from the Law Society Northern Territory, because breaches of these kinds have legislative provisions which should carry with them a stricter level of responsibility than occurs as a consequence of mere negligence.
However, it should be noted that regulations will be developed. These may deal with the consequence of certain intentional torts and claims under legislation such as the Commonwealth’s Civil Aviation Carriers Liability Act 1961. In developing these regulations, the government will attempt to maintain reasonable uniformity with coverage provisions in state and territory legislation that is similar in the purpose of the bill. I have read that out to get some rigour into the answer. However, the commonsense thing is that we do not want two bodies of legislation that are co-located within the one area of court action. So, we are trying to separate them into what domain each one is dealing with. That is the commonsense of what we are tying to do.
Mr MALEY: Mr Chairman, my question was not to get the minister to explain why these particular pieces of legislation have been excluded. I see that, indeed, as good rationale as to why they are excluded from the operation of the act. The question is very specific. It would be better and, certainly, afford any proposed exclusion of the usual parliamentary safeguards, if you were to exclude another cause of action - using the Commonwealth legislation example or the Industrial Relations Act. That exclusion should come into parliament and form part of the one of the subcategories in 2A as opposed to merely done by regulation, which is legislation by subterfuge, I suppose.
I have just put on the record my concern about the fact you are giving someone the power by regulation - which is not scrutinised anywhere near as much as an act of parliament – to exclude a certain class of persons from the operation of the act. My query is not in relation to the ones you have specifically excluded – you are to be commended for that. In fact, that was one of the real concerns I had, but you have heard that from the Law Society, obviously, and that is why you have made the amendment. They told me the same. I do not want to speak on behalf of the Law Society, but certainly some members of it. They are still not happy with the fact that you have given yourself the power to exclude claims by regulation.
Dr TOYNE: Mr Chairman, I claim that there is a loop back to parliament, if you are concerned about someone in the back room shoving regulations into place. The people who are going to pick up any change to the regulation are the practitioners and, if the practitioners see that something has been excluded by regulation, I would hope they would ring up their local member, or me and say: ‘Hey, what is going on?’. Then, if it becomes an issue, it comes back to parliament. I would offer that.
There is absolutely no agenda here other than to deal with the practicalities of putting this legislation out alongside what is already there. I am quite happy to respond to any issue into the future while I am in this position, and give an explanation if regulations are made that are outside the scope of what has been brought forward today.
Mr MALEY: I appreciate that.
Amendment agreed to.
Dr TOYNE: Mr Chairman, I move amendment 31.3. As mentioned above, clause 4(3) provides for exemptions. This amendment makes it clear that any exemption under clause 4(3) will not operate to exclude the provisions dealing with structured settlements.
Amendment agreed to.
Dr TOYNE: Mr Chairman, I move amendment 31.4. New clause 2A(c) provides that the act will not apply to dust diseases. This amendment provides for a definition of dust-related condition.
Mr MALEY: Minister, I understand that dust-related conditions have been excluded from the cap and the operation of the act. You have put in the category of a claim for damages for personal injury that is a dust-related condition and the clause has gone on to define it. Could you explain why that is the case? If it is the case that there is a tribunal in Sydney which determines the quantum of damages payable for these type of injuries, can you explain how that mechanism works, and how someone here with a dust-related industry or claim, falls to be dealt with by a jurisdiction in New South Wales?
Dr TOYNE: Mr Chairman, the Dust Diseases Tribunal is a specialist tribunal having the same status and power as the New South Wales Supreme Court, and that has been set up to deal with dust diseases. These are diseases often long in gestation but quick in passage once they manifest themselves. The tribunal has an acknowledged expertise in dealing quickly with claims in respect of such diseases. The tribunal regularly exercises jurisdiction over claims, regardless of the fact that most of the facts and parties to the claim have no New South Wales connection. It seems that, in one way or another, the tribunal will exercise jurisdiction if the claimant lodges a claim in New South Wales.
Notwithstanding the tribunal may have jurisdiction over events that largely occurred outside of New South Wales, it is still required, in some cases, to apply the law of the place of the injury rather than, say, the law of the residence of the plaintiff or the defendant. Generally, this causes no problems because, aside from the Limitation Act issues, the law related to dust diseases is generally the same throughout Australia, with the probable exception of such diseases which occur because of activities in the workplace. Given the accepted role of the tribunal, it seems appropriate to maintain the consistency in the law that it applies, otherwise there would be a wasteful legal debate about whether the law of a place with a cap of some set level applies, or a place with no cap, or a place with some other cap.
Some other jurisdictions have also excluded dust diseases, for example section 3(b) of the New South Wales Civil Liability Act 2002. It should be noted that this exclusion is of little practical relevance in the Northern Territory, given that mining-related injuries would be covered by Work Health legislation. The provision may only be of relevance to injuries suffered in domestic situations such as asbestos exposure in homes.
Clause 4, as amended, agreed to.
Clauses 5 and 6, by leave, taken together:
Mr MALEY: Minister, I have a question in relation to the scope of clause 5. On a literal reading of it, the bill says that the act does not limit the operation of the Compensation (Fatal Injuries) Act. By way of a practical example, you are saying then, if you are walking down the road and a bolt falls off a building site and you are killed, then your spouse has a course of action which is unfettered by this particular piece of legislation. However, if that bolt falls off the building site and smacks you in the head and you are not killed, you are saying that your capacity to recover damages, according to this, would be limited and you would have this cap. Why have you drawn the distinction between a person being killed and a person not being killed? I do not see the logic as to why you have taken that step.
Dr TOYNE: The clarification I have received here is that it does not change the type of damages, or who can claim, available under the Compensation (Fatal Injuries) Act. It does change the amount of dollars for general damages.
Mr MALEY: Yes. Why the difference? Why change the quantum on general damages available? You are better off if you are killed, as opposed to suffering a severe brain injury? Isn’t that right?
Dr TOYNE: Can you just put that again?
Mr MALEY: I am not reading from this. This is just a practical example: you are walking down the road, and for some reason, as a result of the negligence of a particular construction site or the owner of that site, a steel bar falls from that site and you are killed. If you are killed, any claim that your family or your estate might have under the Compensation (Fatal Injuries) Act is completely unfettered by this piece of legislation. However, if that steel pylon falls and smacks you in the head and you suffer a severe brain injury, but you are not killed, it seems that this particular piece of legislation limits the quantum of one portion of damages that you could get. It seems an anomaly then that - and this is probably a very bad example; it is hypothetical - you are in a worse off position if you survive this because your damages are being capped in terms of …
Dr TOYNE: Yes, I understand what you are saying now. I can only say that the purpose of this legislation is to give certainty and, to some extent, curtail the amount that is available to claim through the existing processes. Where the existing Compensation (Fatal Injuries) Act is set up on, I guess, a pre-reform sort of model - and would still operate on that, because it has been domained away from the operation of this new legislation - to the degree to which this new legislation is directing or forming the level of claim, we want to apply it as widely as possible. I have also just been informed that the Compensation (Fatal Injuries) Act will be also reviewed later this year under the HIP reform. So, we will have a look and see what that does to the level of claim available there.
Clauses 5 and 6 agreed to.
Clause 7:
Dr TOYNE: Mr Chairman, I move amendment 31.5. Clause 7 of the bill provides that community organisations are responsible for certain liabilities to personal injuries caused by volunteers who have acted in good faith and without recklessness, when engaged in community work. This amendment sets out that no member of the community’s body management committee incurs any personal liability when the community body takes on such liability.
Mr MALEY: Minister, I can certainly see the good intent contained in section 7. But can you explain to honourable members the difference, if any, between the common law position and what is stated in section 7(1)? They look to be effectively identical. Is that indeed the case: you have really codified the common law position?
Dr TOYNE: The section changes the common law in that the volunteer is often not an employee, servant or agent and, hence, would be personally liable for any negligent act. The common law has been partly modified by the Work Health Act which, at section 3(7), 3(8) and 3(8)(a), deem certain volunteers and fire brigades, disaster relief and emergency services to be employees. Those volunteers are, therefore, entitled to the benefits under that act, and are also protected from personal suit. This is because the deemed employer is vicariously liable for the volunteer’s negligent acts under section 22(a) of the Law Reform (Miscellaneous Provisions) Act. The bill provides protection for those volunteers not covered by the Work Health Act. The position of the community organisations has not changed in practice because, at common law, the organisation is usually also named as the defendant. The organisations are more identifiable than the individual volunteer and often have more assets, and arrange for the volunteer to attend but fail to properly train or supervise the volunteer and so on. Therefore, in practice, the organisations are found liable, as well as the negligent volunteer if he or she was identified.
Section 7(5)(a) of the bill provides protection for the committee members of the community organisation which they otherwise may not have if the organisation is not incorporated.
Mr MALEY: Lucky I told you that question was coming. Minister, this particular section, in terms of the definition of community organisations, does not include within the scope of it, it seems, unincorporated bodies. The first part of my question is: why does it not include unincorporated associations? Secondly, the amendment you just introduced talks about an organisation’s management committee. I understood that, if it is an incorporated body and there is this corporate veil, the management committee was not liable, in any event, they could say. How does that advance the situation? How does your amendment 5A advance the situation as contained in the Associations Incorporation Act? Also, the point about why you have excluded unincorporated associations.
Dr TOYNE: I have been informed that, unless an organisation is incorporated, there is no legal entity.
Mr MALEY: I am not sure if that is the case. There is no legal entity, but it is an organisation that exists. If it exists and they do something and volunteers work for them, they are still an organisation nevertheless, but they are personally liable. If they are incorporated there is this corporate veil.
Dr TOYNE: My understanding is that we want to be absolutely certain that, in the event that the only target, if you like, of action in the case of negligence, is not the people who have volunteered as committee members. In an unincorporated situation, they would be the only reality; there is no legal entity behind them that can be the subject of the vicarious liability or the action that is being taken.
Amendment agreed to.
Dr TOYNE: Mr Chairman, I move amendment 31.6. This amendment amends the definition of ‘community organisation’ so that it includes religious bodies when they are providing community work. This change has been made because religious bodies may not always be body corporates as referred to in the definition of community organisation.
Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8:
Mr MALEY: Minister, can you please put on the record the difference you say being proposed to clause 8 creates, when anyone who is familiar with the area understands there really is a bit of an urban myth about doctors and nurses being liable when they go to assist somebody in an accident, for example. There is a possibility of them being liable but they really have to be outrageously negligent. Your particular provision here says: ‘A good Samaritan with medical qualifications does not incur personal liability for advice …’ blah, blah, blah ‘… given in good faith and without recklessness about the treatment of a person being given emergency medical assistance’. How does that vary from the common law position?
Dr TOYNE: Mr Chairman, I have some notes here that might throw some light on it. With this new provision, the government’s legal advisor was unable to find cases where good Samaritans have been successfully sued. Traditionally, at common law there has been no duty to assist anyone in peril but, once rescue is attempted, a duty of care might arise on the part of the rescuer. There have been cases where doctors have been found liable for failing to treat a person in emergency circumstances; for example, Lowndes v Woods 1996, where a doctor refused to leave his surgery to attend a 10-year-old boy suffering an epileptic fit.
Additionally, the Criminal Code at section 155 imposes a limit of duty of rescue. The pertinent section is ‘Failure to rescue, provide help etcetera’:
- Any person who, being able to provide rescue, resuscitation, medical treatment, first aid or succour of any
kind to a person urgently in need of it and whose life may be endangered if it is not provided, callously
fails to do so is guilty of a crime and is liable to imprisonment for seven years.
There is certainly plenty of jeopardy of good Samaritans that exist in our code of law at the moment. I do not know if that answers your question.
Mr MALEY: No. I understand what compels, and the criminal responsibility to provide assistance, where you talk about section 155. Also, there is something in the Traffic Act that says you have to provide assistance. However, my question is: putting aside your duty to assist fellow citizens if you can, I am asking you to explain how this provision, clause 8(2), advances the common law position. In fairness to you, and as I said to one of your advisors, it seems to me it is almost like a codification of the current common law position.
Dr TOYNE: What you are testing here is whether this is meaningless, or words to no effect.
Mr MALEY: Yes, that is right. What does it do?
Dr TOYNE: There is, at common law, the provision for a duty of care to arise, though no one has ever actually acted on it by suing. Therefore, liability can arise as a result of that duty of care. I have been pretty upfront in saying: ‘There have not been cases in common law to date of a good Samaritan being actually sued’. However, the mechanism is there under common law and with this existence of this duty of care and, therefore, liability.
Mr MALEY: Minister, whilst there has been some litigation over people not providing assistance, there has not been a case where someone - you are saying - has provided assistance and been found to be negligent in the Territory or in Australia? Okay. So, if that situation did arise, there would have to be some consideration as to what amounts to ‘emergency medical assistance’. I found legislation where what amounts to an emergency, or a situation of emergency, is defined. Why haven’t you provided some guidance as to the exact scope of that term?
Dr TOYNE: Mr Chairman, my understanding is clause 8(4) contains definitions for the purpose of this section of ‘emergency assistance’, ‘good Samaritan’ and ‘medical qualifications’.
Mr MALEY: I hear you, and you are right, there are a couple of definitions, but this is the classic problem, isn’t it? You are saying that the definition of ‘emergency medical assistance’ is covered by the definitions contained in - or a court or a lawyer or whoever would look for guidance - in clause 8(4). It goes on to say:
- “emergency assistance” means –
- (a) emergency medical assistance …
So, it is defining something with precisely the same words for which you are trying to avoid any potential ambiguity. Then you have a disjunctive order to say it could be something else. How does that logically assist?
Dr TOYNE: I think we are heading toward the Macquarie Dictionary.
Mr CHAIRMAN: Is it the Shorter Oxford, or we have the Macquarie.
Dr TOYNE: Mr Chairman, I am sure you will find in the Shorter Oxford that everything is fine. It is a commonsense definition embodied in the legislation. That is what we mean by ‘emergency assistance’. It will be tested under law, like all elements of legislation, and will gain its definition through its use in the courts.
Mr MALEY: This is not really a question, it is more of an observation. It seems to me that this particular provision really creates a safety net for a risk which does not seem to exist. You have conceded it has never occurred in the Northern Territory. There does not seem to be anything from any of the other jurisdictions, so it is probably legislation for the sake of legislation’s sake, and the odd chance that it might come up in the future in which case at least there is something there. That is the case, isn’t it? It would be a good press release for the poor old journos, but it is really not going to do anything practically.
Dr TOYNE: Oh, you are being very cynical now. If one was to take a wander around the legal community in California or places like that, this is an area that has the potential to become active in law. Our attitude, really, is that if we do not protect, right down to the last person, people who are prepared to help their fellow community members in these drastic situations, then we would be remiss. If it does help one person in this situation in the future …
Mr MALEY: In the future?
Dr TOYNE: Yes. As I said, society has changed. I am not saying this is dealing with a really big body of claims. It is simply for completeness of coverage in the areas that we have had identified.
Mr MALEY: Yes. Thanks for that.
Clause 8 agreed to.
Clause 9:
Dr TOYNE: Mr Chairman, I move amendment 31.7. Clause 9 provides that the owner or occupier of premises is not liable for negligent acts committed in respect of a person who has entered the premises and is committing, or intending to commit, an offence. Clause 9 is to be amended by omitting the reference to offences punishable by imprisonment for 12 months or more. This amendment will mean that clause 9 has the same application as current section 10(a) of the Law Reform (Miscellaneous Provisions) Act, noting that section 10(a) is being repealed by the Personal Injuries (Liabilities and Damages) (Consequential Amendments) Bill 2002.
Mr MALEY: A good amendment and one which will be supported. In its original unamended form, section 10(a) of the Law Reform (Miscellaneous Provisions) Act was wider than you have here. On a practical level, and I will put this hypothetical to you: if an occupier or owner of premises sets - and I give the example of - a mantrap. While setting mantraps is an offence under the Northern Territory Criminal Code and that person would be prosecuted, if a trespasser - and remember trespass is a regulatory offence - accidentally trespasses onto your property, and this poor individual stands in a mantrap and is seriously injured, you are saying, under clause 9, that the injured person would have no right to sue for damages, or the quantum of damages would be limited pursuant to this act, despite the fact that person who set the mantrap would be prosecuted and, I assume, found guilty in a criminal court? You see, there is an anomaly there. Can you explain that?
Dr TOYNE: Well, first of all, the mantrap is an offence under the Criminal Code.
Mr MALEY: That is what I am saying. You could be prosecuted under the Criminal Code, yet the very victim of this mantrap could not sue - apart from the CVAs I suppose - seeking some sort of damages; he would be affected by the act. As I understand the Criminal Code responsibility, this owner is responsible criminally, yet it seems will not be responsible civilly.
Dr TOYNE: I will clarify that. You are talking about someone who is intent on committing an offence on that property and is caught in a mantrap, not a citizen on legitimate business?
Mr MALEY: Okay, the scenario I gave you: a trespasser comes on to your property and trespass is a regulatory offence. I come on to your property, for whatever reason it is - I am lost perhaps, I am not sure where the boundary is - but I am on your property and I should not be there. That is an offence under the Trespass Act. If I fall into your mantrap because you happen to be some mad hermit lunatic, and I am badly wounded or injured, I do not have any action against you. Is that the case?
Dr TOYNE: I will confer a moment. Well, you have the advisors buzzing anyway, and that is good.
The first point I make is that that clause is simply leaving the arrangements that were put in place by the CLP government; it is the status quo in those situations. A person who trespasses on premises currently brings 20 penalty points or imprisonment of six months, so it is a significant offence and will draw that prescription against claims against the owner. However, equally, on the case you are giving, my understanding is that the builder of the mantrap would also be offending …
Mr Maley: Criminally liable.
Dr TOYNE: Yes. So, you have two offenders there who both have to answer to the law.
Mr MALEY: I am not sure you answered the question. I do not want to be repetitive but I will explain that one more time. In totally basic levels, if you commit a trespass, that is an offence. You have just amended the legislation by saying if a person comes onto your property to commit an offence on the premises- which trespass is an offence – and, for whatever reason, you have a gun set up and a trip wire, and I am seriously wounded, you would be criminally responsible but I could not sue you for the damages that you have inflicted upon me because I was on your property and I was committing an offence namely trespass. You see how your advisors are nodding that it seems to be the case. Do you agree that that seems to be a pretty significant injustice, and this particular piece of legislation, albeit seems to have some historical context there, is not sophisticated enough to deal with, potentially, that scenario.
Dr TOYNE: Well, if it is an injustice, it was one created by the previous government, as we have not changed the situation at all. That simply recreates the situation that is currently within our law. Therefore, it just builds it in as a clause within the new bill.
Mr MALEY: With respect, that is not a satisfactory response. You cannot just say: ‘It is law’. It is a parliament-made law, it is not judge-made law. You could easily define the scope of offences which would exclude a perpetrator from having a civil action against the owner. You could exclude things like trespass and some of the minor regulatory offences. So, it is a really lame excuse to say: ‘Oh, that is what existed in the past, therefore if it seems to be an injustice; it will continue’. Your job is different to the rest of the ministers in Cabinet; you actually have a duty to make sure it is good and proper law and is revisited – and we are revisiting it right now.
Dr TOYNE: Perhaps you should ring up the previous Attorneys-General who were officiating over the introduction of those provisions. We just brought them forward in this bill because that is what exists in our body of law at the moment. If there are other issues regarding the balance of rights that are embodied within that situation, we can debate here who do we like most: the person building the mantrap or the person trespassing. I know I would never build a mantrap because I am very absent-minded and I would probably forget where I put it!
Amendment agreed to.
Clause 9, as amended, agreed to.
Clause 10:
Dr TOYNE: Mr Chairman, I move amendment 31.8. Clause 10 provides that a person does not incur civil liability in respect of the injured person, if the court is satisfied that the injured person was, when injured, engaged in an offence punishable by imprisonment of 12 months or more. This amendment removes the reference to ‘punishable by imprisonment of 12 months or more’ as the amendment to clause 9. This amendments brings these provision into line with the current section 10A of the Law Reform (Miscellaneous Provisions) Act, enacted in 2001.
Amendment agreed to.
Clause 10, as amended, agreed to.
Clauses 11 to 13, by leave, taken together:
Mr MALEY: Minister, regarding the expression of regret, could you explain to honourable members and Territory people how this advances the Commonwealth situation? I was of the view that saying ‘I am sorry’ does not affect the quantum of liability of a medical practitioner in a case, or if you were sued for negligence. That is the first point. So, if you could explain the extra protection that you say it affords.
Secondly, if you are saying there is a real problem and it needs to be dealt with by way of this piece of legislation - not just legislation for legislation’s sake - can you explain to honourable members the basis on which you say that legislation is necessary. Are there any cases? Have there been any cases where this has been a big issue in the Northern Territory, or is it one of these situations where you are saying we are going down the Californian highway? Is it something which may protect people in the future?
Dr TOYNE: Mr Chairman, before I answer that question, just to further clarify the earlier discussion we were having regarding clause 9. The trespasser must have an intent to commit an offence. It is not just accidentally lost and wandering onto a property. So in that case, a person who damaged that individual through a mantrap would be very much in the firing line of claim.
In regard to the expressions of regret, the purpose is to allow persons involved in an incident, on behalf of an entity involved in an incident, to express regret about the incident without being concerned that the expression of regret - this is very repetitive - may be used as an admission of liability. We are trying to encourage a free exchange pre-court. The clause provides that an expression of regret made before the commencement of court proceedings is not admissible in the court proceedings. I take the member for Arafura’s point, many doctors have for years said sorry in those sort of exchanges; such fears based on the misapprehension as to the law. An expression of regret that does not admit liability has no special significance at law. It does not prejudice the defendant at all.
Clause 13 is probably not a departure from common law in that it makes the expression of regret inadmissible. At common law, such an expression would not be relevant to the issue of establishing a breach of the duty of care, and would probably not be admissible on that basis.
Mr MALEY: Minister, on the question of clause 13, why is it even in the act? Why is it not in the Evidence Act where the usual provisions that relate to what is admissible and inadmissible are? Why is it that a lot of this legislation seems to be permeated by these anomalies relating to evidence? Would it not be a better practice to make sure that all the rules that relate to what is and is not admissible are contained in the Evidence Act?
Dr TOYNE: It is simply to promote that pre-court process by providing an extra formal provision within the act. Given that it is practice for doctors to be instructed not to apologise, this provides some scope for them to enter the negotiation on a different basis.
Clauses 11 to 13 agreed to.
Clause 18:
Dr TOYNE: Mr Chairman I move amendment 31.9. Clause 18 contains a definition of non-pecuniary loss. This amendment deletes that definition and substitutes new definitions of ‘impairment’, ‘non-pecuniary loss’, ‘permanent impairment’ and ‘prescribed guides’. These definitions are required for the purposes of the new clauses 24 to 26A.
Mr MALEY: Mr Chairman, a point of clarification. We are going through the fairly comprehensive list of amendments and we have jumped from 13 to 18. Does that mean we come back and revisit 14 and 15 if I have a specific question, or shall we just continue on?
Mr CHAIRMAN: I thought you were going to come in because originally we were dealing with clauses 11 to 17. If Attorney-General does not mind, the member for Goyder has questions on clause 14. We will do it now before we get too far away. Okay, so we are going back to clause 14 specifically.
Mr MALEY: You have done 11 to 13
Mr CHAIRMAN: We have actually done 11 to 17.
Mr MALEY: I objected to that, though, and we had to go one by one.
Dr TOYNE: We can go back. Raise your issues.
Clause 14 to 17, by leave, taken together:
Mr MALEY: Minister, my question relates to clause 14. As it reads, the clause deals with a presumption of contributory negligence if a number of prerequisites are made out, one being it is pleaded by the defendant or the respondent and, secondly, the injured person is alleged to have been intoxicated. Does that not fly in the face of all the rules of natural justice? In this type of case, reversing the onus is not only improper, in my view, it is unfair and really flies in the face of the common law principles of natural justice.
Dr TOYNE: Mr Chairman, the reversal of onus is not unknown. In fact, it occurs in many areas such as in our Work Health provisions. This particular situation will occur fairly regularly up here, given the high levels of alcohol use and alcohol-related actions of people in the Northern Territory.
We believe that the presumption of intoxication can be rebutted if the claimant can establish at the time of the incident the intoxication was involuntary or did not contribute to the incident. So, there are protections or defences that can be raised. We felt that, given the likelihood that this would be a regular element in negligence cases as they might occur in the context of the Northern Territory, that we wanted to signal that intoxication is not going to be a protection in these types of cases.
Mr MALEY: Minister, in some pieces of legislation, when there are references to intoxication being some sort of exculpatory defence, or a factor when determining the level of contributing negligence, it has been the practice, I am informed, to properly define the term ‘intoxicated’ and not just saying it materially contributed to the incident. As an example, let us specify what is required to demonstrate that a person was intoxicated. Also, there have been some references to the Traffic Act. Do you think that is going to create an ambiguity in the future?
Dr TOYNE: I guess the area we are talking about is the evidentiary provisions: if at or about the time of the incident a person is found by a court to have present in his or her blood a concentration of alcohol of 0.08% or more grams in 100 ml of blood, that finding is accepted for the purpose of this division as conclusive evidence of those facts, and that the person was intoxicated at the time of the incident. So, it is an objective measure. It is not a case of one opinion or another; it is actually a blood alcohol reading.
Another point I would make on the need to have a strong position within the legislation regarding the contributory effect of intoxication is that you could imagine that, in many situations where there would be some duty of care that was supposedly being exercised by the intoxicated person to the victim of the negligence - and I can think of many situations in the Territory where that could arise, for example, a tour guide who takes German tourists to a waterhole and ends up seeing them eaten by a crocodile - if intoxication was present in that situation, it should be a very strongly held factor within the legislation.
Mr MALEY: I have one question in relation to clause 17. It was brought to my attention that clause 17 amounts to a fairly significant fetter on the discretion which is vested in the court. The discretion has been taken away and, for that to occur, you would expect the Attorney-General of the day to have a fairly compelling reason as to why that discretion should be fettered. I am asking you to place on the Parliamentary Record why you have seen fit to interfere with the court’s discretion, in accordance with what you have done in the proposed clause 17?
Dr TOYNE: The core of what we are talking about is the contributory negligence effects/damages, to the degree that they are reduced by 25% as a mandated reduction. I take you to the Wrongs Act of 1936, South Australia, section 24N, which has exactly the same provision. I would also say that there are quite a number of areas – well, the entire medical impairment model actually codifies the targets of the decision of the court regarding payments. I would not say that this stands out from that general approach. We are trying to codify, objectify and normalise the degree of recompense that is provided in similar situations. This is just another way of doing that.
Clauses 14 to 17 agreed to.
Clause 18:
Dr TOYNE: Mr Chairman, I again move amendment 31.9. Clause 18 contains a definition of ‘non-pecuniary loss’. This amendment deletes that definition and substitutes new definitions of ‘impairment’, ‘non-pecuniary loss’, ‘permanent impairment’ and ‘prescribed guides’. These definitions are required for the purposes of the new clauses 24 to 26A.
Amendment agreed to.
Clause 18, as amended, agreed to.
Dr TOYNE: Mr Chairman, I move amendment 31.10 which is to omit the following words ‘Part 4, Division 4, Heading’.
Amendment agreed to.
Clauses 19 to 23, by leave, taken together:
Mr MALEY: Minister, a question in relation to clause 21, ‘future pecuniary loss’. One of the concerns specifically raised with me was that the current wording of clause 21(2) really amounts to surplusage; it does not assist the court. We are talking about legislation which should clarify an ambiguity or create parameters in which a decision can made. Can you explain how clause 21(2) advances that situation, and what you say a court should use or have regard to when considering a determination of future pecuniary loss, guided by clause 21(2).
Dr TOYNE: I take it you are referring to the ‘in awarding damages the court must state the assumptions on which the award is based’. Is that what we are talking about? That is paragraph 2 - sorry, I was looking at committee notes, not the bill. ‘If a court is satisfied under clause 21(1) about the claimant’s assumptions’. Is that the one?
Mr MALEY: That is the one.
Dr TOYNE: Yes. The thinking behind that provision is that it does make the court rigorously explain its decision. It also then provides a basis for further decisions into the future in parallel - it builds up a body of open evidence of what a court has used to make a decision. I also refer you to Civil Liability Act 2002, New South Wales, section 13, which has a similar provision.
Clauses 19 to 23 agreed to.
Clause 24:
Dr TOYNE: Mr Chairman, I invite defeat of clause 24.
Clause negatived.
Clause 25:
Dr TOYNE: Mr Chairman, I invite defeat of clause 25.
Clause negatived.
Clause 26:
Dr TOYNE: Mr Chairman, I invite defeat of clause 26.
Clause negatived.
New clauses 24, 25, 26, 26A and 26B:
Dr TOYNE: Mr Chairman, I move amendment 31.11. Currently, clauses 24 to 26 provide for a cap of $250 000 on damages for non-pecuniary loss and for a threshold of $15 000, with those amounts to be reviewed every 12 months in line with percentage changes in the average weekly earnings in the Northern Territory. Under these provisions, non-pecuniary damages would be assessed in terms of common law principles concerning pain and suffering. Under common law, damages are assessed having regard to the subjective nature of the damage to the injured person. These provisions are replaced by a new division, providing that non-pecuniary damages are to be assessed on the basis of medical impairment.
Clause 24 deals with the purpose of this division. The new clause 24 sets out that the purpose of the division is to abolish common law principles related to the assessment of damages for non-pecuniary loss, and to replace them with provisions setting out that compensation for non-pecuniary loss is to be assessed on the basis of permanent impairment.
Clause 25 deals with damages other than for pecuniary loss. Clause 25 sets out the damages other than for pecuniary losses shall only be assessed in accordance with clauses 26 and 26A.
The new clause 26, deals with the assessment of the degree of impairment. The new clause 26 sets out that damages for non-pecuniary loss must be assessed by the court, by reference to medical evidence regarding the degree of permanent impairment of the injured person. In turn, evidence such as impairment can only be given by a medical practitioner. Regulations may be made that set out the qualifications for such medical practitioners. In giving the evidence, the medical practitioner must have assessed the degree of permanent impairment in accordance with the prescribed guides as defined in clause 18.
Clause 26A deals with damages for non-pecuniary loss. Clause 26A(1)(a) sets out that the maximum amount that can be awarded for non-pecuniary loss is $350 000, subject to the review in accordance with clause 26B. Clause 26A(2) sets out the following rules regarding the calculation of awards of damages for non-pecuniary losses: if the degree of permanent impairment is less than 5% of the whole person, no award can be made regarding non-pecuniary losses; if the degree of permanent impairment is equal to or greater than 5%, determining an amount for compensation by applying the rules contained in clause 26A(3). The basic rule is that a person is paid a percentage of the maximum award that equals the percentage of impairment.
There are two exceptions to this general rule. The first is that injured persons who have 85% or more permanent impairment are paid the maximum rate, and persons with 5% or more impairment, but less than 15% impairment, are paid in accordance with a sliding scale ranging from 2% of the maximum persons between 5% and 10%, to 12% of the total for persons with 14% permanent impairment. These rules are the same as in the Work Health Act and in the Motor Accidents (Compensation) Act.
Clause 26B dealing with declaration of maximum amount of damages for non-pecuniary loss, imposes a duty on the minister to declare, on an annual basis, the maximum amount of damages for permanent impairment for the purposes of clause 26A. This amount will be the amount of $350 000 set out in clause 26A(1)(a) as adjusted in accordance with the percentage change in the four quarters that have occurred before the year in which the declaration is required to be made. For the purpose of this provision, the term ‘average weekly earnings’ is defined in clause 18.
Amendments agreed to.
New clauses 24, 25, 26, 26A and 26B agreed to.
Clauses 27 to 30, by leave, taken together and agreed to.
Clause 31:
Dr TOYNE: Mr Chairman, I move amendment 31.12. Clause 31 provides for the making of regulations. This amendment makes it clear that regulations can be made for the purposes of identifying documents that may form part of the prescribed guides in respect of the medical impairment.
Amendment agreed to.
Clause 31, as amended, agreed to.
Remainder of the bill, by leave, taken as a whole and agreed to.
Bill to be reported with amendments.
Personal Injuries (Liabilities and Damages) (Consequential Amendments) Bill (Serial 109):
Bill, by leave, taken as a whole and agreed to.
Bill to be reported without amendment.
Bills reported; report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Acting Deputy Speaker, I move that the bills now be read a third time.
Motion agreed to; bills read a third time.
CONSUMER AFFAIRS AND FAIR TRADING AMENDMENT BILL (No 2)
(Serial 81)
(Serial 81)
Continued from 20 August 2002.
Mr MALEY (Goyder): Madam Acting Deputy Speaker, I indicate that the opposition will be supporting the passage of this bill. I put this on the record: for what it is worth and whoever is writing these second reading speeches for the minister, this is a particularly well written second reading speech, and that person, whoever it is, should be commended.
However, on a more political front, the only observations I can make is that I always have concerns about reform-type legislation being dealt with in a piecemeal fashion. It is difficult to get a handle on the big picture, I suppose, when pieces of legislation are dealt with by this parliament in dribs and drabs; not that an enormous amount, in contentious issues, hinges upon the Consumer Affairs and Fair Trading Bill No 2 (Serial 81).
The purpose of the bill is to amend the act to replicate changes that are being made to the Commonwealth Trade Practices Act. The bill mirrors the Commonwealth legislation in most regards except for one matter. Once again, it is really succinctly and well written and contained in the second reading speech. Under the Northern Territory bill, the new section makes it plain that the statutory warranty, or right under section 66, can only be excluded, restricted or modified - I am just reading very quickly here: ‘if the provider of the service ensures the person entering into the contract for recreational services should be aware of the general effect of the exclusion, restriction or modification’. I am informed this is the first in a series of bills to be introduced by the government over the next few months to help deal with this global insurance problem. I indicate the opposition, having considered this bill, will be supporting it.
Mr STIRLING (Treasurer): Madam Acting Deputy Speaker, the Consumer Affairs and Fair Trading Amendment Bill (No 2) 2002 is the other important part of the second stage of the Territory’s legislative reforms. The bill implements a commitment made by the Territory government at the national ministerial meeting on public liability insurance held 30 May 2002. The purpose of the bill is to amend the Consumer Affairs and Fair Trading Act to replicate those changes being made to the Commonwealth Trade Practices Act.
Changes will operate to assist providers of risky recreational activities, such as adventure tourism operators and certain sporting groups which are currently prevented from relying on waivers. Under the proposed amendments, the supplier of recreational services could require that, as a condition of the supply, a participant give up their right to sue for death or any personal injury arising from undertaking the activity. Allowing people to assume some of the risk of the recreational activity they are participating in will help reduce the risk faced by the provider of the activity, which will, in turn, promote lower public liability insurance premiums for such providers.
The intention of the amendment of the act is not that of sanctioning the reckless provision of recreational services; rather, the intention is to permit consumers and providers of recreational services to reach an agreement and understanding of the legal basis on which the services are being supplied. The bill also encourages people to take responsibility for the consequences of their own actions.
Government will closely monitor the development and application of the waivers by the relevant industries to ensure that the balance continues to be achieved. It is important to note the bill does not affect the general law that restricts the powers of persons who are not adults to enter into binding contracts. Measures, in combination with the reforms contained in the Personal Injuries (Liabilities and Damages) Bill, will help improve the affordability and availability of insurance. I urge the Assembly to support the bill.
Dr TOYNE (Justice and Attorney-General): Madam Acting Deputy Speaker, I welcome the opposition’s support for this bill, and also the contribution of my colleague, the member for Nhulunbuy, on what is the second of the four bills that make up the reform package that our government has brought forward in response to the public liability situation nationally.
I will foreshadow at this stage, other than what I have just said, that we will be bringing forward just one amendment to this bill in the committee. That is simply to create the expectation that written agreements can be, and should be, used in shaping the agreement between the client and the operator of such recreational activities regarding foregoing the right to take action against the operator. That can be used as a written contract if you like, between the two. Equally, verbal agreements can be tenable, and also a combination of written and verbal. We will deal with that amendment in the next stage of the debate. Again, I welcome the support for this bill.
Motion agreed to; bill read a second time.
In committee:
Clauses 1 and 2, by leave, taken together and agreed to.
Clause 3:
Dr TOYNE: Mr Chairman, I move amendment 36.1. The proposed new section 68A of the Consumer Affairs and Fair Trading Act sets out that the providers of recreational services may reach agreement with clients regarding the degree of care and skill that recreational service providers will exercise when providing services. Such services are often provided in circumstances where there is no formal written contract, or much opportunity for detailed analysis of the contractual rights and responsibilities. For example, where consumers are purchasing tickets to go on an escorted bush walk, a bungy jump, or an organised tennis tournament.
To deal with the problems faced by both clients and service providers, the bill imposes in clauses 68A(1)(d) and (e) an obligation on the recreational services provider to ensure that the exclusion is disclosed to the consumer in such a manner that the consumer is aware of the general effect of the exclusion, and has a reasonable opportunity to consider whether or not to enter into the contract with the service provider.
The amendment being moved is designed to tighten these requirements by ensuring that the exclusion, restriction or modification must be disclosed in writing or verbally, as appropriate in the circumstances. This means that the service provider must also take other inquires if these circumstances are such that writing may not be sufficient. It should be noted that the kind of writing is not prescribed, yet it may be by way of a sign or form part of the ticket.
New clause 68A and this further amendment are not designed to permit service providers to routinely attempt to get consumers to agree that the service provider is legally entitled to exercise reduced levels of care and skill. Rather, it is designed to operate when the parties are likely to readily accept that the consumer is personally taking on some of the risks, and will have the skill to cope with those risks. However, clause 68A has been widely framed so that it is up to the recreational service provider to decide if and when he or she may need to limit the operation of section 66 and 68 of the Consumer Affairs and Fair Trading Act.
I mention that these amendments are much the same as amendments made to the Trade Practices Act 1974 and by the Trade Practices Amendment (Liability for Recreational Services) Act 2002; the only substantive difference being that the Northern Territory bill provides the disclosure of the effect of the exclusion. The Northern Territory and Western Australia are the only jurisdictions that, by legislation, imply these warranties of due care and skill. This means that the other states will not need to make an amendment along the lines that we are considering. Instead, they will need to assess the local impact on corporations of the changes to the Trade Practices Act 1974.
Finally, I note that the amendments to the bill only operate within contractual relationships. They need to be distinguished from further proposals to be considered in April 2003 concerning the law of negligence. Those proposals will set out the rights and responsibilities of persons within the law of negligence, of persons who engage in risky behaviour or in dangerous activities; such acts such as diving into the surf or unguided bush walking in a national park.
Amendment agreed to.
Clause 3, as amended, agreed to.
Remainder of the bill, by leave, taken as a whole and agreed to.
Bill to be reported with amendments.
Bill reported; report adopted.
Dr TOYNE (Justice and Attorney-General): Madam Acting Deputy Speaker, I move that the bill be now read a third time.
Motion agreed to; bill read a third time.
VISITORS
Madam ACTING DEPUTY SPEAKER: Members, before we go any further, I acknowledge the presence in the Speaker’s Gallery of the Australian of the Year, Professor Fiona Stanley. With her is Len Nixon and Paul Davis from the Institute for Child Health Research.
In the gallery above us we have Andy Monroe and Ted Wilkes from Rio Tinto.
Welcome esteemed guests, and congratulations Professor Stanley.
Members: Hear, hear!
SUSPENSION OF STANDING ORDERS
Take Debate Together - Standing Orders Committee Report and Related Motions on Estimates Committee and Government Owned Corporations Scrutiny Committee
Take Debate Together - Standing Orders Committee Report and Related Motions on Estimates Committee and Government Owned Corporations Scrutiny Committee
Mr HENDERSON (Leader of Government Business): Madam Acting Deputy Speaker, I move that so much of standing orders be suspended as would prevent debate on the Standing Orders Committee report and the motions relating to the appointments of the Estimates Committee and the Government Owned Corporations Scrutiny Committee being debated together and the questions being put separately.
Motion agreed to.
MOTION
Standing Orders Committee Report and
Related Motions on Estimates Committee and Government Owned Corporations
Scrutiny Committee
Standing Orders Committee Report and
Related Motions on Estimates Committee and Government Owned Corporations
Scrutiny Committee
Mr HENDERSON (Leader of Government Business): Madam Acting Deputy Speaker, I move that this Assembly appoint a committee of the Assembly to be known as the Government Owned Corporations Scrutiny Committee of the Legislative Assembly for the purpose of examining and reporting on the activities, performance, practices and financial management of government owned corporations, with reference to the statements of corporate intent for the government owned corporations for 2003-04, in the terms distributed to honourable members.
I also move that this Assembly appoint an Estimates Committee of the Legislative Assembly for the purposes of examining and reporting on the estimates proposed expenditure contained in the Appropriation Bill 2003-04, in the terms distributed to honourable members.
Motion agreed to.
MOTION
Standing Orders Committee Report; Appointment of the Estimates Committee; and Appointment of Government Owned Corporations Scrutiny Committee
Standing Orders Committee Report; Appointment of the Estimates Committee; and Appointment of Government Owned Corporations Scrutiny Committee
Mr HENDERSON (Leader of Government Business): Madam Acting Deputy Speaker, last year the new Labor government in the Northern Territory, introduced for the first time the Estimates Committee process to the Northern Territory - the first time that this process had been used to scrutinise the government’s budget; the last parliament in Australia to introduce this level of accountability to the public for the government finances, both on the revenue and on the expenditure side. It was one of the promises that we made at the last election - that we would introduce an Estimates Committee process - and it was certainly one that we were very proud to see come to fruition last year.
This new process has brought a new level of accountability and scrutiny to the Territory budget. As I said in debate in the House yesterday on this issue, I believe that the new process was certainly accepted, if not embraced by all members of the House, once we finally got down to realising that we were going to go through with it. All members participated, to the best of their abilities, in holding the government’s budget to an account and, given it was the first time that this process had been adopted in the Northern Territory, on the whole most members agreed that it was a better process than the preceding one. The government was quite well prepared to formally to review that process. We will continue to see ongoing review of that process to make an even better Estimates Committee process for the people of the Northern Territory. When you break it all down, it really was not bad. There were a number of issues that came out of the process that needed to be looked at, and the committee has done that.
The vehicle for the review of the Estimates Committee process of last year was the Standing Orders Committee, which had representation from the government, Independents and the opposition. The process saw input from across the board, from the broader community, and included government agencies and the media. I thank everybody who made a submission to the Standing Orders Committee that was charged with reviewing the process. I, on behalf of all honourable members - I am sure they will join with me - especially thank the staff of the Legislative Assembly who put together the first process, managed the committee, and then took a lot of time out in providing their own written contributions. All members of the House would agree with me that they have done a magnificent job.
I also formally thank the Opposition Leader and the opposition. Essentially, their reference to the committee provided the framework which the committee operated through to work through the issues. The opposition, obviously, were very constructive and put a lot of thought into how we could achieve a better Estimates Committee process, rather than opposing the process. I thank them for that, and hope that we can continue to move forward in a genuinely bipartisan way to try to get the best outcome for Territorians. We are, of course, going to disagree on some points but, if we agree to leave those issues as separate points but on the whole keep moving forward, the Standing Orders Committee will serve this parliament and the people of the Territory well.
The review process provided all interested parties an opportunity to identify areas that needed consideration, and to develop proposals for change. There were some issues where there was consensus. One in particular was the wisdom to have one Estimates Committee process. Everyone who made submissions to the parliament agreed that one was enough. There were enough issues around one committee without duplicating it and having two committees, let alone the costs associated with two committees. That was probably the easiest recommendation to take on board. There was no divergence of views on that issue.
Other issues saw various proposals, and I will go to some of the issues where we had particular interests and debate. Much of the debate around the first run through of the Estimates Committee process was the issue of whether there was enough time for the committee to scrutinise government and ministers. There was much debate about how much time was needed and how we would allocate that additional amount of time that was needed. A wide range of submissions addressed that. What the committee has determined is that there will be an extra day-and-a-half more than the process we saw last year. The budget scrutiny exercise will last for four days: there will be a morning session on the first day, Tuesday 24 June, and Friday 27 June will see an additional day. So, that is a significant move from the committee, allocating the extra time. It obviously acknowledged that maybe there was not enough time in the last process. Consequently, there is an extra day-and-a-half to review the government’s budget.
The committee will commence operations at 9 am, and these changes will see the budget scrutiny process last for a significant amount of time - 47 hours in fact, in excess of any time recorded for previous appropriation debates in the Northern Territory. So, 47 hours in total …
Mr Reed: 42. You tried that before, you tried that in the meeting.
Mr HENDERSON: 42, my notes are wrong. I knew we got that wrong. 42 hours is still longer. I was thinking about that. That is long enough.
For the first time, as well, the government owned corporation, PowerWater, will be subject to a separate scrutiny. That was a call from the opposition that last time they did not have a chance to look at the new government owned corporation. Well, that has been acceded to by the Standing Orders Committee and PowerWater will appear before the committee on the Friday afternoon, following the scrutiny of the budget. Never before has there been a need for the Northern Territory parliament to scrutinise a government owned corporation, and this Estimates Committee will have the opportunity to directly question the PowerWater executive officers.
In line with practice in most jurisdictions, and to enhance the capacity for media outlets and the public to witness the scrutiny process, ministers and their senior officials will be allotted times to appear before the committee. Again, I suppose, this is the issue where we had the only contention on the committee about. I am sure that honourable members opposite will put their views for that further in debate. The previous arrangements - the first arrangement of having no fixed times - led to confusion amongst the media, agencies and all participants. Not only confusion. I would also say a fair amount of consternation, frustration and possibly even anger, I suppose, as people got pretty tetchy through the first process. So, last time it was unscripted, no time frames. The committee started and had the ability to roll through the Speaker and all of the ministers. Again, a first run through for this particular process and, I suppose, government for the first time, ministers being up first time to be scrutinised through this process, and the opposition being in the process for the first time, there was a bit of inexperience all around.
We saw, for example, small agencies, such as the Auditor-General’s kicking off, being gone through with a fine-tooth comb for about four hours which, I suppose, if everybody had their time again, that may not happen. Then the Chief Minister was the next minister up and was before the committee for some 17 hours. It was at that point of the process that people saw that we were going to have problems; it was going to be very difficult to move through all the remaining ministers in the time that was left. I suppose temperatures were starting to rise in the frustration through the process. Without re-hashing previous debate as to why the Chief Minister took 17 hours - that is on the public record - the fact is that the Chief Minister was before the committee for 17 hours straight and that, in part, led to a bottleneck that was not worked through.
We then saw, as a consequence of so much time being taken on the Chief Minister, and four hours for smaller agencies like the Auditor-General, that a significant portfolio area - the highest expenditure area of government, being Health - only received about two hours of scrutiny. Another significant area of government - particularly one in an economic climate where so much of government work goes out by way of public tender in the capital works area - the Department of Infrastructure, Planning and Environment, was not scrutinised at all.
We would have to say that, given that first process, without apportioning blame - that is not what I am standing here to do - was to inform the people of the Northern Territory and provide adequate scrutiny of the government budget process, the first run through did not quite meet the mark, when one agency was not looked at, at all, and another major agency like Health only had two hours allocated to it. In the last run through, in trying to push the issue through, government met on the Wednesday evening, I believe it was, when the Treasurer was before the Chair, and we had six ministers left to go, and only a day-and-a-half left in the process. In trying to speed it up, we decided to give the opposition all of the written answers that were remaining, and all of those written answers to written questions were provided in an effort to try and speed the whole thing up. The opposition could go through those written answers, put aside the answers to questions they were not seeking further information to - ‘Yes, that answers my question’, put it aside - and then left them the time to really hone in on the issues that they wanted to follow through. Even having done that, with a day-and-a-half left and six ministers to go, we still managed to only provide two hours for Health, and no scrutiny of Infrastructure, Planning and Environment.
Therefore, regarding the operation of the committee, the time issue was what the Standing Orders Committee had to have a really close look at. The notion of a schedule is very familiar to those who have looked at the process in other jurisdictions. The Public Accounts Committee had a very good look at other jurisdictions. They travelled to Tasmania to see the process there, as well as looking at all other jurisdiction’s processes. Following the Independent Speaker, the Treasurer and Deputy Chief Minister will appear before the committee. We have determined that the Treasurer will appear for up to seven hours, and that will allow the committee to look at the whole-of-government issues regarding Treasury, as well as four-and-a-half hours notionally allocated to examine the other portfolio areas that my colleague, the Treasurer, holds. This will afford the Estimates Committee the opportunity to look at those whole-of-budget issues.
We had the process before where one agency was not tested at all, and other agencies were really skimmed through. Therefore, we believe, very sincerely, that with set allocated blocks of time, what we will achieve at the end of that process is what the Estimates Committee is determined to do; and that is to scrutinise the entire government budget. By allocating a defined four-and-a-half hour time period for each minister, and seven hours for the Treasurer, that will ensure that each and every agency, each and every minister, will appear before the committee for an extensive period of time - a period of time in total that is in excess of appearances before the committees previously - and really should, without having an indefinite process, ensure the adequate and thorough scrutiny of each agency’s budget and each minister’s carriage of that budget. That is the issue of contention and debate and I am sure members opposite will pick up on that in their contributions.
Previously, questions for the Estimates Committee were provided a week in advance and in writing, and this fairly cumbersome process - well, it always was a cumbersome process in shuffling the amount of paper that came through - saw much of hearing dedicated to ministers reciting prepared answers. Again, we had a look at that. It is a process that, overall, has served the parliament and the people of the Northern Territory well for 26 years or so. However, every other parliament seems to have moved through into an Estimates Committee process without the use of written questions. I am sure our public service will be breathing a huge sigh of relief when they hear that they will not have to research to an extraordinary level of detail much of the information to provide backup to ministers. It should save many cumulative - probably thousands - of hours of public service time in researching and documenting information for ministers to read in the House on those issues. If we are truthful, probably 90% of those issues would sail through without a great deal of debate, and the contentious issues would take around 10%.
I am genuinely very pleased that the opposition and the Independent members – everybody - has decided to take a deep breath and move with the times and do away with written questions and answers. There are pros and cons in it from everybody’s point of view. Certainly, from the opposition’s point of view, they might feel that they are going to get many questions taken on notice, and it is not going to be a great process or much detail. That has not happened in other parliaments and I do not see why it should happen here. Ministers are not going to beat about the bush. There is a bit of apprehension about not having the shield of a written answer there to stand up and read out - an answer that somebody else has prepared for you. But ministers should be across their portfolios well enough and the detail will be there through chief financial officers and CEOs. It is an elimination of a process that cumulatively chews up many thousands of hours of time across the public service, and we are doing away with it and we will see how we go this year.
Flexibility is a sensible feature of most Estimates Committee processes, including in Tasmania which members opposite would be familiar with. Enhancements will also be made to the layout of the Estimates Committee room to improve media and public access. These changes were part of the evolution of the Estimates Committee process. It is manifest that this government is prepared to move the Territory’s parliament forward.
We will go through this process again and, if we determine that there still needs to be some wrinkles ironed out of it, I am sure the parliament will refer a review of the process back to the Standing Orders Committee after July this year. There have been many changes to the first run through that we have seen. I welcome the debate that we have had and will have on the Estimates Committee processes. It is refreshing to be a member of this parliament and participate in a legitimate debate on transparency and accountability and genuine budget scrutiny. We have moved forward a long way.
Constructive input is always welcome; negativity and criticism is not really going to get us very much further. So, in spite of the argy-bargy that we had, all members believe that it was not a bad process. There were issues around time. We have allocated an additional day-and-a-half to the process. We have brought the government owned corporation, PowerWater, into the process. Also, by allocating defined period of time to ministers - cumulatively and in total more time than it has ever been needed before - we will ensure this time that each and every agency is scrutinised, each and every minister gets to sit in the hot seat for at least four-and-a-half hours and, in the lucky Treasurer’s case, at least seven hours. We will provide a level of accountability back to the people of the Northern Territory through this Estimates Committee process this year that did not occur last year. Therefore, we have made a significant move forward.
I presume the member for Katherine will be the next person to jump on this in terms of the dissenting report. He can speak to that and my colleagues will respond to him. However, regarding other processes to scrutinise government and the budget, it is not just the Estimates Committee process. If there are other issues that need to be fleshed out, there is always the option of questions on notice to ministers. We still have the Question Time process, and I still say to honourable members: you can still approach ministers for briefings on issues that you want to follow though. So, the Estimates Committee process is not the only process by which honourable members of this parliament can look at the government’s budget. It certainly is a very significant part of that and it is a dedicated and focussed time.
Public servants will be there: chief financial officers and chief executive officers. An extension of a day-and-a-half, defined sitting times for members, a total allocation of time in excess of what has ever been needed before, doing away with written questions and answers, I believe, will certainly serve the people of the Northern Territory well later this year. At the end of my contribution to start this debate tonight, I thank everybody who has participated in the process, everybody who has made submissions to the process, and all members of the Standing Orders Committee who have participated in these debates. I look forward to the Estimates Committee process later this year.
Mr REED (Katherine): Madam Acting Deputy Speaker, I thank the minister for his remarks in relation to the report from the committee. To pick up on the final point that he made in relation to the Estimates Committee and that there are other processes regarding asking questions of government and ministers. I agree with him that there are other processes, be it questions on notice or questions without notice at Question Time. However, the fact is that the appropriation debate is the debate for the budget to be tested. In that context, it is the forum for those matters to be undertaken and pursued on behalf of Territorians. It is very important that we recognise that. Outside of that process, at other times of the year, naturally there are those other forums and mediums. However, this is a debate for a particular and very important purpose.
The minister has outlined in some detail the processes that we have been through, and I do not propose to cover that again. He has explained it very well. I thank him and the former Chairman of the committee, Mr Stirling, the member for Nhulunbuy, for their conduct of the committee. It has been productive. It has considered the issues and reported within the allotted time, hence we are discussing it today as was programmed late last year. That, in itself, says something.
There is one issue of contention, not unexpected in the circumstances and the issue that we are debating. Overall, it has gone very well. Along with the minister, I would like to thank you, Mr Clerk, and your staff for the assistance and support that has been provided to the committee; it has been very good. The information that has been required has been provided on a timely basis and in a very professional way, and that has assisted the committee substantially.
I will cover a couple of the points in relation to the matters raised by the minister. In particular, pertaining to the time that it took to question ministers last year - the Chief Minister in particular he made reference to - it does need to be put on the record that before we went into that process, the opposition did pursue vigorously the fact that three days under that new system and structure would not be enough. Had the government listened prior to the conduct of the first Estimates Committee, and provided the extra day to which they have now acceded – in fact, a day-and-a-half – then that first effort in conducting the Estimates Committee would have been a lot easier and more effective. However, that is history, so let us not dwell on it too much, and consider more the matters that we are debating today.
The situation with the time limits - which is the matter to get to the dissenting report that opposition members of the committee have drafted - is of concern to us. If there is to be, and has been, a global limit of 42 hours based on the duration of time that the committee can sit, then it seemed logical to us to leave it open to those members conducting the questioning as to a breakdown of effort, if you like, required in questioning a particular minister. I am not talking here only for myself, but Independent members, present and future, regarding the various matters that have to be considered. They are not just financial; there are, necessarily, political issues that have to be taken into account, and issues that need to be collectively pursued on behalf of our constituencies. So, from the opposition’s point of view, we do think it appropriate that, whilst a global time is set - and we do not argue with that - the amount of time allotted for a minister should not be constrained and that the only constraint should be: ‘Are there any further questions?’, and if the answer is, ‘No’, you move on to the next question.
Under the structure that is being proposed - with which we are in agreement - regarding an overall allotted time of 42 hours, that then does put a cap on it, and it does put the acid, if you like, on the opposition to ensure that, within that cap, ministers can be questioned. From our experience in the past, where there has never been a cap on the time during which ministers can be questioned, it has been managed. It has been appropriate for the then opposition being able to ask whatever number of questions of a minister they thought appropriate. If, for example, under the new process, a particular minister was only asked questions for two hours, we cannot understand, if it is necessary - and it may not be - for another minister to be questioned for more than four hours, why that is not possible. But, nonetheless, that is the decision that the government has made. We do not agree with it and, hence, have put forward a dissenting report in that regard. I hope that it does not end there; and the minister did refer to it.
The conduct of the committee next time around may show that it could be worthwhile reconsidering that matter. We will approach it openly - not with a necessarily dogged position on it - to see if it will be worth raising it again following the conduct of the next Estimates Committee process. That, basically, covers our position in relation to that. It is a step backward, in our view, and one that necessarily will not serve the parliament to its best.
There is a matter that I also want to raise. There is reference made in some of the documents of officers not being able to make comment on matters of policy. I would seek clarification from the government in relation to that, perhaps from a minister to speak later. It is understood that, clearly, on a matter of formulating or changing policy, a departmental officer could not respond or talk about those matters. However, if it is about the application of policy and the expenditure of public monies on a policy, then I would expect that the officer would be able to deal with those matters.
In broad terms, I have pretty well covered the issues that we want to. I do not think there is much point in retracing the remarks of the minister. The process is one that will still need to evolve, and we must reflect on the fact that, whilst the last Estimates Committee did not quite go the way - as even the minister said - that they expected it would, we did have a lot of unknowns: it was an inexperienced government and an inexperienced opposition, as he said, that was pursuing the matter. The layout of the room was considered to be inadequate, and that is not a criticism of the staff who worked hard to determine the layout of the room on the last occasion; we were all in unchartered waters. We have since, with hindsight and experience of the last Estimates Committee, found that there are better means of determining what the layout is. They have been largely decided and, no doubt, there may even be a little finetuning to that.
Those practical, logistical circumstances and the workplace that we will be conducting our business in, do have a big impact and will make a big difference. The minister did not mention the changes, I do not believe, to the number of opposition or Independent members sitting opposite the ministers. The reduction in the number to seven people on the questioning bench, if you like, will eliminate a lot of the confrontational atmosphere that sometimes existed during the course of the first Estimates Committee hearings.
Hopefully, it will make it easier for the Chairman also, regarding the movement of people, understanding what is going on and what particular opposition spokesperson or Independent member is pursuing a line of questioning at the time and easier, I hope also, for the Hansard staff and other parliamentary staff to be able to follow the proceedings and keep track of the enormous amount of documentation that follows with the questioning - although that will be greatly reduced because of the introduction of questions without notice rather that questions on notice - and the cupboards full of paperwork that necessarily supported that process.
We look forward to the new Estimates Committee. We only really have that one difference as I have indicated and described. It will be interesting to see how the process works. With the new layout and questioning regime, and the fact that there is an extra day-and-a-half, it will add to the efficiency and effectiveness of the process. I can advise the minister and other ministers that the opposition will be approaching the process in a productive way to make sure, on behalf of Territorians, that the budget is tested in an appropriate and meaningful manner. We will use the Estimates Committee process that is flowing from these committee deliberations over the last few months, to the best of our ability to ensure that Territorians are well served by their parliament.
Mr STIRLING (Treasurer): Madam Acting Deputy Speaker, it is good to hear the opposition - I know the member for Katherine had a fair bit to do with bringing this together - and it is good to hear the positive remarks he made, notwithstanding the fundamental difference that he and the opposition will always have in respect of a global time limit such as we have implemented - 42 hours - where they ran, in parliament, the Committee of the Whole until questions ran out.
Notwithstanding that though, he knows, I am sure, that the record shows that only on two occasions during the entire life of processing the budget through Estimates Committee stages was 41 hours the maximum - or 41 hours 11 minutes, I believe - incredibly, in two successive years. Therefore, 42 hours would still be the longest that it has ever taken. In relation to the hours and why I get seven out of the 42 – we know and I know I am Treasurer, but it seems to me to tempt the opposition to keep me there for seven hours if they are going to have seven hours.
We know what happened last time and I take the member for Katherine’s point that both government and opposition - and I believe the Leader of Government Business made the same point - that it was a new process and both sides were inexperienced in their roles as compared to years past. However, the fact was, early on, more time was taken on ministers to the extent that one minister did not get before the committee at all. At least under this structure, every minister will be before the committee at some stage. I saw the Leader of Government Business nod when the member for Katherine raised the point of whether this is fixed in concrete forever. Well, I do not think it is. I am sure government is not of that view. We would have another look and, at some stage, debate the process beyond the estimates process in June, as to what else might be needed to fine-tune it. The parliament owns this process; the parliament will work towards making it as fair and efficient as possible.
I did want to make a few points in particular on the Government Owned Corporations Scrutiny Committee, because that is designed to examine the activities, performances, practices and financial management of the Power and Water Corporation in June 2003 with reference to the corporation’s statement of corporate intent for 2003-04. Members would be aware that the corporation’s activities are not part of the Appropriation Bill and associated budget papers, therefore, its affairs are appropriately examined by this separate committee. Questions about community service obligation payments made to the corporation by the Territory, and dividends paid to the Territory by the corporation, could appropriately be addressed in the Estimates Committee as they are part of the Appropriation Bill process. As shareholding minister, I am expecting to table the corporation’s statement of corporate intent for 2003-04 at a future sittings.
Before the statement of corporate intent for 2003-04 is tabled, there will need to be negotiation, as the statement of corporate intent is an agreement between the corporation and myself as shareholding minister. The corporation has advised that they intend revising their statement of corporate intent for 2002-03, to reflect developments such as the impact on the corporation of the departure of NT Power Pty Ltd from the Territory’s electricity market. I will table the revised document when it has been agreed.
The Government Owned Corporations Scrutiny Committee will consider a range of issues concerning the Power and Water Corporation and its statement of corporate intent. I expect that the chairman of the Power and Water Corporation could reasonably expect questions about, for example, the impact on the corporation of the departure of NT Power Pty Ltd from the Territory’s electricity market; issues relating to gas supplies from the Amadeus Basin; the corporation’s projected operating performance over the three-year period covered by the statement of corporate intent; the corporation’s capital investment program over the three-year period covered by the statement of corporate intent; and the corporation’s non-financial performance targets over the three-year period covered by the statement of corporate intent. It is a process that will allow interrogation of the government owned corporations. In time, there will be other government owned corporations that will come before this particular committee for that process of scrutiny by the parliament.
We said pretty clearly last time that we did not think that we would get it right first time. There was a fair bit of discussion with the opposition. They did not agree with the process in its entirety and they still do not. However, it certainly can be done better, and will be done better this next time around than it was the first time. I reiterate, we are not wedded to this forever and a day. If we think there can be productive changes made once we have been through the process again, we would be happy to sit down and work through them. As I said, parliament owns the process and it is up to parliament to bring about the best process it thinks it can.
Mr WOOD (Nelson): Madam Acting Deputy Speaker, I will say a few things on the recommended options for the Estimates Committee. I am still a supporter of the longer hours that we saw in Tasmania. I know that others do not agree, but I should put on record that I thought the system I saw in Tasmania worked very well. Each minister had nine hours; in fact, they actually have 18 hours because they have two houses of parliament. Be that as it may, I am quite happy to work with the recommendations that have been put forward and to see how they go.
The only thing I would ask the government to look at is similar to what was used in Tasmania: that any time out was added on. So, if there were any delays in the question time, you got a full nine hours. You did not get nine hours minus interruptions. It was a bit like at the football, you had time on. If we are going to have four-and-a-half hours questioning, then it has to be four-and-a-half hours using the same method as Tasmania. That is not clear in these documents. Therefore, I ask the government to look at that and see whether that is a fair comment that they could take up.
I do not think I am the only one who thinks that there should be longer times for each minister. The Ombudsman - not so much in his report, but I see in the summary - put in a submission and said that he believed each minister should have at least a full day to be questioned. I would have thought the Ombudsman’s opinion should have some weight.
The other area which still needs looking at because it has not been addressed properly, is that the Estimates Committee is actually sitting when parliament is sitting. I know you will generally say it is not, but I remember last year, you had a little calendar on your desk which told you the days that parliament was sitting. We sat for the morning on the first day, and the rest of the time was the Estimates Committee. The Estimates Committee sat for the entire second day, and it sat again for most of the third day.
The standing orders for the Estimates Committee say that the Estimates Committee may sit only when the Assembly is not sitting. Therefore, you either do not put on the calendar that the Assembly is sitting on the first, second and third days, or whatever, and then have the Estimates Committee sitting on those days. If you are telling the public that the Assembly is sitting, and in fact it is in an Estimates Committee, I do not think you are giving the public the correct information. That needs to be clarified. I would rather see the Estimates Committee outside of the Assembly - totally. These are the days we sit and when it is on the notice board, the public can expect us to be in here, not there. That should be looked at.
Considering the criticism that is levelled at us for not sitting enough times a year, I would rather sit here for an extra three days of Assembly work and do that as a separate thing. That is what we are telling people, and in fact, that is not what we are doing. The standing orders say that is exactly what we should be doing. That needs to be looked at as well. By the way, I should mention that the Auditor-General agrees entirely with that. He says: ‘Hearings to be conducted outside designated parliamentary sitting days’. I am glad the Auditor-General agrees with my point of view; because I have had that view all along.
The minister might be able to help me on another question: the summary deals with generic questions and grouping of questions and says these are not applicable now because there will be no written questions. I do not know whether it entirely clears that up, because the Independents and other people might want to ask the same question, but they are not always going to know that people are coming up with that question. I do not know whether there is going to be the opportunity for people to get together and say: ‘We have a similar question. Can we combine it?’ You could do it to some extent when written questions were used. It might be just a little harder to do with only oral questions.
Issue number 9 was standing orders relating to relevance of answers by ministers be clearly defined specifically for the Estimates Committee. The recommended option was that there would be no amendment to the current application of standing orders relating to questions which are applied where appropriate to Estimates Committee hearings. I presume that the standing order for this Assembly is also applied for the Estimates Committee; that is the answers only have to be relevant. This raises the whole issue I raised yesterday that we should be looking at reviewing that section of the standing orders.
The last one was about the procedures for questions on notice and answers. I know that in the Assembly you can put a question on notice or if you have a written question, you get a written answer. I want to know whether questions on notice and their answers will be read into the Parliamentary Record, or will they be incorporated into the Parliamentary Record, because the whole system of the Estimates Committee is a public hearing. In theory, ministers could say: ‘I take that on notice, etcetera’, and the public would not hear those answers.
That is something I believe is very important in the Estimates Committee. That is why I asked originally that all written questions - even though it would take a long time - should be read into the Hansard, simply so the public hear that. I know there is a document. There is some input from the Tourist Commission, saying all written questions should be just put into the Parliamentary Record so people can chase them up. They forget that the Estimates Committee is an important part of the democratic process, where the public can come to listen to a question and the answer. If you get away from that, well, you might as well not have the Estimates Committee. We just send all the mail off to the minister and, when he gives us an answer, we just put it in the Parliamentary Record. I would hate to see that watered down, simply because that is a fundamental philosophy behind the Estimates Committee’s operation.
Other than that, I have a very technical question: is there meant to be a break on Friday? That was all. In the recommended options there are breaks for Tuesday, Wednesday, Thursday and then it says: ‘with two one hour breaks for lunch and dinner, and then Friday 9 am till late afternoon’. It might be very technical, but I presume there is some sort of break on the Friday as well. If it has to be written in, perhaps it should be written in.
Other than that, I suppose, to some extent, it is trial by error. Let us see how it goes this year. I certainly still promote longer time, because I think that is important. When you see the Treasurer was questioned for 17 hours, you see there were enough questions to ask people for a long period of time. We have cut that back at least to seven hours. It will also cut ministers back to four-and-a-half hours, and I do not think that is adequate. Be that as it may, I would reiterate that, if we are going to have the four-and-a-half hours, it is exactly four-and-a-half hours, and breaks are not included in that.
Mr BONSON (Millner): Madam Acting Deputy Speaker, I support the Martin Labor government’s efforts to finally bring credibility to Territory politics; credibility to accountability. What people forget about this whole issue, is that for 27 years in this parliament we did not have an Estimates Committee. Basically, what the CLP was doing was denying all Territorians their right. How? By being the only jurisdiction in Australia not to have an Estimates Committee. I was genuinely shocked by this disgraceful fact. I heard some kowtowing over there on the side when I mentioned that again, because they are ashamed, and they should be ashamed. The fact that, for 27 years, they did not gave the general public the opportunity to find out what was happening in the budget; the shame has to be on the Opposition Leader. The shame also has to be on the members for Katherine, Greatorex, Macdonnell and Port Darwin. They stand there arrogantly and falsely accusing the government of capping the hours, of not being accountable. The shame of it is, they do it with a straight face, which amazes me.
Let us get the facts straight; something the old guard of the CLP hated to deal with - the facts. They have not changed. They are an arrogant, backward thinking party of narrow-minded people. When will they learn? For 27 years, they refused to introduce an Estimates Committee, and what was the reason? The reason can only be called ‘fear’, and the fear of accountability; the fear that it would bring accountability to the budget process. We know that the member for Katherine, as Treasurer, had a number of reasons - what they are only known to him. One of them, I believe, was budget deceit. Okay, I can accept that there might be reasons why they did not have an Estimates Committee, and one of those reasons might be to hold onto power. That is fine, if that is the motivation. If that is what you want to do and what you believe in, then stand up and say it, rather than hide behind political rhetoric.
What disappoints me the most is that the members for Macdonnell, Greatorex, Daly, Port Darwin, Blain and Brennan have often pleaded innocence and ignorance to such matters fundamental to the democracy around Australia, and western democracies around the world. I say to them: practice what you preach, members.
In the first term of the Labor government in the Territory, we have delivered on our election promise and, more importantly, we have delivered on a real pillar of western democracy. I am proud of that achievement. Many members often ask themselves: what have you achieved since you have been elected? Well, every Labor member of this House can say they supported, for the first time, the contribution of an Estimates Committee. With an Estimates Committee, we bring a fiscally responsible and transparent government. The Labor government has, however, had both feet firmly planted on the ground. We understand - unlike the CLP who still, to this day, remain arrogant - that this was the first time the Estimates Committee process occurred and it should be reviewed and, where possible, as the Leader of Government Business said, enhanced where necessary.
I am proud to say I was part of the vehicle for the review, which was the Standing Orders Committee of which I am a member. On the committee were representatives of government, opposition and Independents. The meeting was conducted quite formally with many issues discussed to and fro openly. I believe all views were appreciated and given weight. The outcomes of discussion represents the majority consensus; for example, the discussions and decisions to have one Estimates Committee. This is time and cost effective without harming the accountability process. As the Leader of Government Business has rightly said, there will be an extra day-and-a-half. This means four full days and an additional morning session.
To ensure the process works, members should come to the Estimates Committee process with sincere hearts. The committee will commence operation at 9 am. This means the review will last an amazing 42 hours. The Leader of Government Business and the member for Nhulunbuy have already commented that, over the averages of times when the budget process has been scrutinised, this is by far the longest. This is something every member of the government can be proud of.
Another first is that the government’s own corporation, PowerWater, will be subject to separate scrutiny for the first time. The Estimates Committee will have the opportunity to directly question PowerWater officers.
We have heard some of the ridiculous arguments from our CLP opponents that having fixed times for each minister somehow affects scrutiny. Last year, the members opposite were not able to manage their time responsibly. On behalf of all Territorians, the CLP opposition needs to become a better opposition; they owe that to all Territorians. The CLP has not learned, they have not changed; they have played silly games with the whole estimates process. I believe the opposition has a duty to do its job for the benefit of all the Territorians - that is, be the best opposition it can be. I know it is still hard for some members on that side of the Chamber to understand that they are in opposition and they have a duty to the Territory public. That duty is to scrutinise government actions and to do it in a professional, reliable and honest manner. Some of the members opposite misunderstand that duty they have. If they look at the role of all parliamentarians in the western democratic system, they have a personal responsibility to ensure that all members of parliament act responsibly. I hope they take that up this year.
Labor has a long-term plan for the future, and part of that plan was establishing an accountable estimates process for all future governments - Labor or CLP. I will repeat that again if members misheard me: Labor has a long-term plan for the future, and part of the plan was establishing an accountable estimates process for all future governments - Labor or CLP. As a member of this House, I recognise that, and forever and a day, every member on this side can say: ‘We contributed to an Estimates Committee’. That is something that, unfortunately, the members on the opposition can never ever say. They have to justify that in their own way.
Again, Madam Speaker, it amazes me that people like the members for Drysdale, Katherine, and Brennan - intelligent men, the leadership of the CLP - can stand straight-faced with fingers crossed and deceive Territorian by saying they could do better when, for 27 years, they denied this option of accountability to Territory people. Have you no honour?
The reasonable politician around Australia would expect that, in any Australian democracy, an estimates process would be available to them. Unfortunately, until this term of government, the Labor Party has given that right to every politician in the Northern Territory of Australia and Territory constituents. The new guard of the CLP, the members for Goyder and Araluen, should turn their backs on the old guard of the CLP. They do not own the old CLP philosophies and ideas or mistakes, so make a choice: turn your back on the old CLP. It has not changed for the benefit of Territorians and has no new ideas. Even today, we find the same negative rhetoric being yelled across the Chamber.
Through the Estimates Committee, we are on track to deliver the promises we made in our plans for a better Territory, and will allow Territorians to scrutinise budget policies on government spending on creating more local jobs, better schools, healthier hospitals and safer suburbs. That is what the Estimates Committee process is all about: building better skills, healthier hospitals, safer suburbs and creating more local jobs.
Madam Speaker, I support the enhancements of the Estimates Committee process. Finally, the Labor government has introduced a truly honest process.
Mr DUNHAM (Drysdale): Madam Speaker, the member for Millner should speak more often in this House. We miss his wacky sense of humour and his funny takes on the world. It does add to the levity of the place, and to the broad range of debate that comes across …
Mr Bonson: Honest. Honest sense of humour. Honest and honour - talk about those words.
Mr DUNHAM: He would like to talk about honesty and it is probably a good place to start. He is trying to parade the fact that we interrogate our budget through an Estimates Committee as being a world first. Well, we used to do that and we did it in a committee, that was a Committee of a Whole. In other words, everybody could participate. None of this: ‘There will only be seven chairs’. The other thing he talked about is public access. We actually do it in here and you could sit a lot more people in here than you can in one of those committee rooms. On at least one occasion, it was 40-plus hours, - I think it was 46 hours - of debate in here; Committee of the Whole, public access. For you to parade that you have this wonderful new thing now, where on the last occasion it was 29 hours, is just a nonsense.
It has been well and truly debated in here. I know that it is quite possible that, during that debate, he was not fully mindful of the words that were going on, but he can revisit it by pulling out the Parliamentary Record and having a little look: it is a fairly simple thing.
What does aggravate me to some extent is the fact that he is saying that now we can look at the Power and Water Corporation for the first time. Technically, that is true. The Power and Water Corporation has only been in existence for a matter of months. However, if you look at that instrumentality which delivers power and water services for the Northern Territory - which was previously called the Power and Water Authority - it has only been on one occasion that it has been taken out of the budget - one occasion, and that is the last occasion. Every Power and Water Essential Services minister who was in this House went through the estimates process. One wonders why the Martin government - the famous Martin Labor government - wanted to pull it out of last year’s estimates. I am glad that they have put it back in. I ask the member for Millner to have a little look at that. I am sure he will be pretty ashamed that it was pulled at the last minute. We were given a briefing; the CEO told us he was ready to give evidence; then we got this worrisome thing that one of the minister’s might get tripped up on it. We tried to debate it and, in fact, the debate was gagged on that occasion. So, when you talk about openness and honesty, you have to look at your track record: did not bring it before the Estimates Committee; did not want to debate it; gagged the debate on it; and certainly wrong-footed the CEO who believed he had a duty to parade the business of his instrumentality before this House. I am glad the Power and Water Corporation has been put back on.
I am pleased that the member for Millner is so proud of the committee process of this House in this capacity. I would have thought that he would have been in support of his colleague, the member for Nightcliff, coming before the PAC to explain why there are such vast differences in the documents she brings to this House and the utterances she makes in it. I would have thought that if he was really genuine - other than this wacky side-splitting humour he gives us about various firsts that are not firsts, and the great pride and honour he has in contributing to the Martin Labor government – about openness, transparency, accountability – the motion before the House yesterday to look at some of the figures for the Department of Health and Community Services would have been fully supported by him. In not doing so, you can mount the opposite case: that it is not open, it is closed; it is not transparent; it is opaque; it is not accountable; it is deceitful –deceitful in the extreme.
We know their figures are rubbery. We know that their budget is smoke and mirrors. We have ministers proudly standing up and saying that a figure that goes in one year from $28m to the next year of $26m is not a $2m cut. He also claims he can proudly tell us why that reduction of $2m over a year is, in fact, an increase. Such are the mental gymnastics that these people perform over there when they start talking about money.
It is important that we interrogate these budgets. It is important that you bring some of the things to book that you did not, such as the $300m-plus that goes to the Power and Water Corporation, the public service numbers that were expunged from budget documentation, and the problems we have with the Health minister’s portfolio area. It will be interrogated. I hope that staff in her office at least use yesterday’s motion referring it to the Estimates Committee, to start to brief this person because there will be some questions asked in those areas. We will be asking, for instance, why the CEO said there had never been a blow-out of the Health budget, and the minister comes in here and says it blew out from year to year. They are questions we will ask. They will be questions that will leave one or the two commentators floundering for an answer, because they are both at radical variance from each other.
I hope that we can get through this quickly. All this talk about how stoically the Chief Minister did this many hours of debate - the reason it took so many hours is because she did not know the answer to the question. She had a simple one-liner saying: ‘It is accrual accounting and if you do not understand, you should get out of the way’. We now find, from Mr Bansemer, that the entire Health department knew nothing about accrual accounting - if you believe his report. It would have gone much quicker had it not been for the obfuscation of the Chief Minister. It was patently obvious to everybody she knew very little about the innards of the Treasury department …
Mr KIELY: A point of order, Madam Speaker! I was on that committee and it was not patently obvious to me, so it was not patently obvious to everybody. Once again, he is coming out with all these twisted, distorted points of views.
Madam SPEAKER: There is no point of order.
Mr DUNHAM: No point of order.
Mr Kiely: Well, do not misrepresent my views!
Mr DUNHAM: Sit down! No point of order. It was patently obvious to anyone intelligent that the Chief Minister knew nothing about the innards of her Treasury portfolio, and various buffoons in the room and other commentators …
Madam SPEAKER: Member for Drysdale, you should withdraw that remark.
Mr DUNHAM: I was talking about members of the public.
Madam SPEAKER: You are reflecting upon all the people who were there. Withdraw it.
Mr DUNHAM: I withdraw, Madam Speaker.
The interesting thing, Madam Speaker, is that the Chief Minister came quickly to the realisation that, in giving evidence in other than a Question Time approach where you can stand up, blurt out a series of catchy, media-ready quips at the opposition and sit down without answering the question, it is a little more tricky when there are follow-up questions.
For the first time in her political life, she has seen a process where she is asked a question which has not much margin for that media gimmickry that she uses, and she has had to answer the question. It became very hard for her. That is why the member for Nhulunbuy is now the Treasurer; she does not want to do that again as it has the potential for too much pain. You are probably a better Treasurer, by the way. I am not saying he is not incapable, but it does go to why the 17 hours were taken. If we have ministers who know what is going on in their portfolio, they answer the question. And if we have officers who are sitting beside them who are able to answer the question, it should be r referred to them.
There is one other little problem we have to sort out, and that is, in one of the budget papers, the opposition has told us that it is at arm’s length from government …
Dr Burns: Who told you?
Mr DUNHAM: … it is the fiscal accountability and transparency act, or some such name.
Dr Burns: You mean the government has told you.
Mr DUNHAM: The government has told us, for those who were not listening. What we find is this is not a creature of the government’s making. The government is at arm’s length from it. It has been done by a public servant, and we cannot question that public servant directly. This is a problem for them. You either have one or the other. It is either the Chief Minister’s document and we question her on it, or it is a document that belongs to a senior bureaucrat and we should have direct access to that person. I say that is a lessening of value compared to previous systems that we had.
I had hoped not to be so critical in this debate. In fact, it was my intention to not even contribute. However, when we get the stand-up comic routine that we had, it is a little hard not to put it into the immediate Hansard record. It certainly is there a dozen other times, if he was keen enough to have a look. I would suggest that the member for Millner take his responsibilities seriously. He has told us that he doorknocked everybody in his electorate, which all of us know is pretty much an impossibility.
Mr Bonson: No, I have not. I have not said that.
Mr DUNHAM: I assume it was every house …
Mr Bonson: I have not said that. You are lying again. Check the Parliamentary Record and see what I said.
Mr DUNHAM: … and that would be hard to do. I believe you would find that if he paraded the document of Good Governance - which he told us he had this little fire-side chat with the Good Governance document - he would find that he must be, certainly, just a tad embarrassed with what was put out there. He claimed that people actually voted for him on the basis of this Good Governance document. If that is the case, he would want to be careful that he tucks it away and does not take it out next time he goes out doorknocking, because there are a lot of boxes you could tick in there to see if things had been done that have not been ticked. In fact, some have been reneged on. They are evident to everybody. I do not have to go through the litany of them again. It is a problem for him to have embraced so wholeheartedly this document.
He believes it was a telling feature in his election, and we know what that was: that was the One Nation push polling. However, that aside, if it was the good governance document, he has to be pretty careful with the mantra that he is parroting in here, because he is going to have difficulty going back and claiming that it happened. To stand here and talk about the honour that is now showered on the Martin Labor government, I believe he will find that the Martin Labor government has some answering to do. The answering will be to: why did not do what you told us you were going to do?
We are also going to have to tell people that some of the numbers in here are wrong. We knew last time. My colleague from Nelson did suggest to the Chief Minister that she might like to put a corrigendum page into it because we encountered so many mistakes. Two of them were $800m – $800 000 000. $800m – two mistakes of that calibre. She has not really done that. We know where several of the mistakes are and we could help if she is looking for them. It is interesting, even in the half yearly report, my colleague from Katherine found a mistake within nanoseconds of getting the report. Belatedly, it was put out with a little sheet that now tucks into the back saying: ‘There is a bit of an error in here’.
Therefore, we like the documents to be accurate. We hope that the ministers know what they are talking about. We hope to have access to public servants who do, if they do not. We would particularly like the issue of the document for which the Under Treasurer is wholly responsible, interrogated directly with that person. We would also like the member for Millner to show some of that wisdom and wit that he has next time he goes doorknocking, because that is probably one of our better strategies: for people to see this chap in the flesh, with his Good Governance under his arm, telling them why they should vote for the Martin Labor government.
Ms CARTER (Port Darwin): Madam Speaker, I was not planning to say anything tonight on this particular debate, but the member for Millner has inspired me to have a few words. I am going to steal a word from the Minister for Health and Community Services, one of her favourite words: really, member for Millner, that was extraordinary, your outburst tonight with regard to this issue. You have been unnecessarily provocative and somewhat patronising in your response to us. What has happened to the member for Millner is, he has been sucked into the vortex of Labor dogma, and he is actually believing and taking on board all of these things. If he had experience - if he had been here, for example, as long as I have, three years …
Mr HENDERSON: A point of order, Madam Speaker! The item before the Chair is the report from the Standing Orders Committee into the Estimates Committee process. That is the item before the Chair. It is not a reflection on, and a whole recitation on, the comments made by my colleague, the member for Millner. I would ask that the honourable member actually speak to the issue before the Chair.
Madam SPEAKER: Leader of Government Business, I have to say that remarks being made in this debate have been far-reaching and have not always been critically relevant to the topic. It is very hard to pull up someone when other members have had that freedom to speak the same way - perhaps also the member for Millner
Ms CARTER: As I say, the member for Millner has been somewhat provocative. It is in that light that I am going to respond to some of the accusations he made on this topic. He made the comment, for example, that under the CLP government, we were not open and accountable, particularly the fact that we did not have an Estimates Committee. I have been here long enough - and I can assure you it is only three years and so it is not as long as many others - to have experienced the period of time where I saw several budgets go through and be debated here in this House in the committee stage. I can assure the member for Millner that, during that process it was incredibly open, it was incredibly accountable, and people in the Chamber were able to ask whatever questions they liked.
What is different between what happened then and what is happening now is that you could ask as many questions as you liked, until you ran out of questions. That is the difference. It means that, through accountability, the government can cop as many questions as the opposition chooses to give it. It is incredibly unfair that, in this process now, there is the potential to cap and to cease a discussion because the four-hour time limit has expired. It could come to a time - and I am not suggesting that it will happen under this government - when we have a major budget problem here in the Northern Territory, some major issue within a department, and to cap it at four hours is really going to be ‘anti’ open and accountable as a process. It was purely a lack of experience from the member for Millner and, if he had been here long enough to have seen how the previous process had worked, he would not have the concerns that he, obviously, feels that only a Labor government could address with this new process.
He made a comment that inferred, really, that he does not like us being in opposition; that we should learn our job and do it better and such like. Hidden in there is, in fact, a real dislike of the fact that we, the CLP, are in opposition. As far as he is concerned - it came through in his tone - we should not say, or do anything, or quiz this government - this is not our right because we are the wicked CLP which did all these terrible things to the Northern Territory in the past. The reality is, we are in opposition; we do have a role to play and we are doing that. It is our job to scrutinise what has happened in government, and we will do it.
Dr BURNS (Tourism): Madam Speaker, I will not be provocative.
Madam SPEAKER: Or long.
Dr BURNS: I will be very brief.
I was particularly impressed by the Deputy Leader of the Opposition and his statesmanlike offering here this evening, and the fact that there has been general agreement by the opposition to the propositions that have been put forward about the conduct of the Estimates Committee.
I have seen the Estimates Committee as a process, as a committee in transition. The form that it took last year, whilst it was unsatisfactory in some ways and satisfactory in others, was a stepping stone. The next step is foreshadowed in these changes to the standing orders and I welcome them: I welcome that there is going to be an opportunity for all ministers to be interrogated about the budget, and I believe that there is adequate time in there.
I take the Deputy Opposition Leader’s point that there is a possibility that the questions might finish before the four hours is up. I very much doubt it, given the propensity and the undertakings of someone like the member for Drysdale. The whole four hours will be taken up and that is a positive thing. I believe with every dollar of public money that is spent that we, as a parliament, should be ensuring that it is spent effectively and wisely. As the member for Millner said, what it is all about is ensuring the delivery of services to Northern Territorians. Both government and opposition, and Independent members, have a crucial role to play in that, so I welcome that.
I also welcome the fact that the size of the committee has been pared down to seven. That is not restrictive in itself, and the opposition has the ability to interchange if you like, and to use their members’ different expertise to the greatest possible benefit in asking questions. As chairman last time,. I felt - and the Deputy Leader of the Opposition picked up on this - that there were too many people around the table and it was sometimes a volatile situation. As chairman, there were a couple of times where it was difficult to control. There were so many people around the table and, at times, people were tired and might have been a bit cranky. It is better this way, that there is an interchange system. The interchange system is a positive thing because, with so many people around the table, there was always the temptation - not that I believe that any member of this parliament should be restricted from asking a question that relates to their electorate or an area that they are interested in - but I noticed that the Leader of the Opposition and the Deputy Leader of the Opposition really wanted to move on to the next minister and other members were pursuing a line of questioning, which is their right. However, there is always a temptation, if you are at the table that something might pop into your head that you want to ask about. This system will ensure a bit more discipline. I hope that there is a little more discussion about who is going to be there and the questions that are going to be asked. That is a very positive thing.
We have been through the PAC and in discussions about estimates, the member for Nelson would really like to see all the questions and all the answers verbalised so the public can hear what is being questioned, and the answers. Whilst that might be in a perfect world, there is a place for written questions. It is our job as members, and his job as an Independent member, to be a channel, if you like, to pick out those issues. If he writes a written question and he gets a written reply, it is either satisfactory or unsatisfactory, and he lets his electorate know about the answer to the written question. It is the same as if someone says something in Hansard and it is on the record, or if he receives another communication, it is a job as a local member to let people know what is going on. Generally, the public are not interested in hearing every question and answer. It is up to us to let them know what is going on; that is part of our job. Therefore, I do not entirely agree with the member for Nelson about that issue.
Maybe I was just taking it the wrong way, but the member for Nelson seemed to be asking whether there would be a dinner break on the Friday.
Mr Wood: It is just a technical - you will see it in there if you read the options.
Dr BURNS: Possibly I misunderstood what the member for Nelson said. There will be an hour during the luncheon adjournment, then there will be resumption at 1 pm and the committee will be going through to 3 pm. Then we return to this place and have the debate.
I have inquired with the Clerk and others about what you mentioned about sitting days and whether that might not be clear enough for the public, or whether we need to address that issue. There is some agreement that it needs to be specified during those days that the Estimates Committee is sitting. I am not sure whether you have had a conversation with the Clerk about that, but he certainly clarified that issue for me. In the calendar next year, it probably needs to be specified and, hopefully, that will add the clarity that you mentioned.
I did make some notes as the member for Drysdale was speaking which I could pick up, but it is late. This is the last night of our sittings; we have a distance to go. However, I encourage the member for Drysdale; the Estimates Committee is an opportunity for him. Obviously, he is trying to prosecute a case about this government’s spending in Health and spending here and there but, to some degree - and I do not want to sink right in here - the member for Drysdale does lack some credibility on this issue. He needs to re-establish himself and become positive. He needs to be out there developing positive policies.
He has, some might say, an almost obsessive interest in health. Hopefully, it is a healthy interest in health, and his other portfolios. However, if he has that interest in Health, Essential Services and the other shadow portfolios that he has, he really needs to burrow back into the party and the party membership, and the community as a whole, to come up with positive policies. It is almost like the member for Drysdale has said: ‘Everyone thinks I am a very bad person …’ - I am almost paraphrasing what the member for Drysdale would say – ‘… because of what happened when I was Health minister’. It is almost as if he wants to prove that this side is as bad as him, to justify his position. No one is going to buy that; he lacks credibility in that. The way forward for him is to work hard, be positive, develop positive policies, and put some positivity out there for Northern Territorians.
Madam Speaker, that is all I have to say. I commend the Standing Orders Committee’s report to the House.
Dr LIM (Greatorex): Madam Speaker, I was not planning to contribute to this debate but, having served both on the PAC which became the Estimates Committee last year and on the Standing Orders Committee, I have been fully involved with the process.
I listened to the Leader of Government Business’s description of the process that occurred to bring these terms of reference about. I thought he did it in a very conciliatory manner and gave credit where credit was due. I believe the opposition members - initially, the member for Port Darwin and then the member for Katherine and I - contributed constructively to the whole process. The fact that this list of recommendations came about, in the main, from the recommendations of a motion put forward by the Leader of the Opposition on behalf of the CLP, demonstrates clearly that the CLP was very keen to ensure that the estimates process occurred properly and fully so that the budget figures can be adequately interrogated.
We did submit a dissenting report. It was about the allocation of time for each minister. We were concerned that some ministers, because of their extensive portfolios, would not be adequately interrogated over those portfolios. We would have preferred to see that hours left over from one minister who might not have as many portfolios, be then rolled over to the other minister with more portfolios. However, our wish was not taken on board.
I believe the whole process was well done. The discussions at the Standing Orders Committee were essentially fairly non-acrimonious, if that is the right word to use and, as a result, we came out with this list of recommendations. Like the member for Katherine, I would like to draw the Leader of Government Business’s attention to item No 25, which is: ‘Officers may answer questions at the request of the minister but shall not be required to comment on policy matters’. If it was a policy on foot, a policy that has been developed, of course, that would be in the realm of government, and the responsibility of government and the respective minister, and I accept that a public servant should not be asked to comment on that. However, if the policy is already in place and is being implemented, we should be able to ask the public servant how that policy would impact on his or her management of the budget within the department. I thought that would be a fair and acceptable question directed to the public servant. I am interested to hear what the minister has to say on that issue.
I supported the member for Nelson’s request regarding all questions in the previous form where it was all written and responses read out, so the listening public - which essentially means the media - would have some idea as to the intention of the questions, especially any subsequent or supplementary questions. Until that happens, a listener would not understand the relevance of a supplementary question. However, now that the questions are no longer going to be on notice it is a new ball game. I sincerely hope that all ministers will be able to deal with those questions on the spot.
What I would be very unhappy to see, if it does come about, is that ministers will continue to take questions on notice because they are unable to answer the questions. They have their public servants sitting next to them so they should be able to get, essentially, almost all the answers directly at the estimates hearing. However, if a lot of questions were taken on notice, then it will make a mockery of the whole estimates process once again, in that we will not get any answers. What is the point of having a minister appearing for four-and-a-half hours when the bulk of the questions given to the minister will be taken on notice? That is the one thing that I request that the government considers closely, to ensure that questions are provided with appropriate answers on the spot, and be prepared for supplementary questions after that.
Apart from those few comments, I thought the whole process, as I said earlier, was a good way to come to terms with this. The opposition, obviously, would like to ensure that the Estimates Committee allows us to interrogate the budget as closely as we possibly can; this is what it is all about. It is really an opposition’s committee. I trust the government will accept that in good faith and provide us with the information that we require. As for the remarks of the member for Millner, I do not believe that I need to say anything, because they were not worth commenting on.
Mr HENDERSON (Leader of Government Business): Madam Speaker, I will be brief and thank honourable members for their contribution in the debate on the new Estimate Committee process debated this evening.
First of all, I will run through the speakers who have made contributions. The member for Katherine participated in the debate in the same way that the committee actually worked. There was one single issue of dissent, and both sides have put their points for the reasons for allocations of time for the ministers, so I will not rehash that issue. It is there on the public record and I will commit, as Leader of Government Business, that through some process - and we will negotiate it after Estimates Committee again this year - if there is genuine consensus among the members of the House that we need to go further in reviewing the process, we will. The government is very genuine about having a robust process that meets the need of this House and the people of the Northern Territory in the scrutiny of the budget.
Regarding the issues that the members for Greatorex and Katherine raised in regard to issues of policy - item 25 in the terms of reference. Again, this term of reference is no different to terms of reference for an Estimates Committee process adopted in other jurisdictions. It does show how there has been a significant improvement in information that is made available to the committee. The minister of the day will comment on issues of policy, and why a particular policy has been implemented. We should not be putting our public servants in a position to comment on policy matters. In regards to, specifically - and I suppose we will have to wear it. I am just trying to think if there was a hypothetical put to me in terms of possibly - the one that I can think of off the top of my head could have been in Correctional Services. There could be a question that goes to the chief executive officer of Corrections that the opposition may want to ask if we consider, say, we still had a policy of mandatory sentencing, for example. A question from the committee to the Chief Executive Officer: ‘Do you believe that the government’s policy of mandatory sentencing is going to see an increase in prisoner numbers and, therefore, an increase in budget required?’ Or a decrease, if that is a hypothetical. In that hypothetical, I would say that, if there was a body of evidence behind that, it would be appropriate for the Chief Executive Officer to say: ‘Yes, I believe it would have an increase or a decrease’. Whether it should or should not be public policy is not an issue for the public servant.
If we start from the parameters of common sense, before this process gets into place again this year, we are not there to put public servants on the spot. Public servants are there to provide information regarding the budget. Public servants - chief financial officers and chief executive officers - have a lot more detailed information about budget allocations through their agencies - the specific programs, unders and overs, what is coming in from external sources, what revenues are being generated - than the minister has.
If we start from the parameter that the public servants are there to help the process, to provide the information that the committee needs, then we will travel well. However, if we get to the point where we are starting to challenge the public servants, then that is when the chair will step in. The issue of policy is a commonsense issue. We should not be putting public servants on the spot, making judgment on the government policy of the day - whichever government is in power in the Northern Territory - and issues of policy quite rightly go to the minister. If the committee is trying to seek contradiction between the minister’s assessment of policy and a public servant’s assessment of policy, I really do not think we should go there. So, let us have some commonsense about this. Certainly, government and ministers are approaching the Estimates Committee to provide the information that the committee needs. Thanks to the member for Katherine for constructive comments.
The member for Nelson raised a number of issues. One of the issues was when the Estimates Committee should sit and the way we did it last year, and the way the budget bill has always processed through this House, which has been when the Assembly is sitting, is somehow - I will not use the word ‘deceiving’ - potentially confusing the public as to what exactly parliament is doing on any given day. I would remind the member for Nelson that the Estimates Committee is a committee of parliament scrutinising a bill. In the same way that any piece of legislation goes through this House, the bill goes through three stages, three readings. The committee can be called at any time. It is a budget bill before the House. We cannot separate it from the process of passing a bill through the House. It is a bill in the same way that any other piece of legislation is that passes through the House. I am not sure how you would completely de-link it, but it is the same process that every piece of legislation goes through. Whether we need to extend sittings for another three days to consider the Estimates Committee was not what came through the majority of the submissions. I believe we continue to evolve.
The relevance of answers: again, the member for Nelson wanted to clear up this issue that we debated yesterday about the issue of relevance. Again, commonsense needs to prevail. You have a budget, there is an allocation there; there is a lot of detail in the budget papers. With chief financial officers, chief executive officers, and other bureaucrats there as well as the minister, I am sure that, nine times out of 10, regarding the information that the honourable member would require of budget allocations, receipts or external funding and the impact of that, he will receive the information that he needs. If we come through this process again next year, and the member for Nelson and the House comes to the point that maybe it was not as relevant a process as it should have been and there had been a lot of obfuscation in the whole process, we will have a look at it. Again, let us work with what we have and not try to re-invent the wheel. I am sure we will come out with a better process than we had last year.
Interesting, coming to the member Drysdale. I was not going to try to be controversial in this debate. I did not think we needed to have a controversial debate. However, I wish members opposite would get their lines right. The member for Drysdale, essentially, came into the parliament with a view that was - certainly, regarding his contribution - contradictory to the position that the committee arrived at, and two of his colleagues on that side of the House came to. In the committee, the member for Drysdale was negative about the whole process, whereas the committee and the members for Katherine and Greatorex were pretty positive. He was negative about it. He said that the previous record time period in this House for scrutiny of the budget was 49 hours.
My colleague is accurate when he says it was 41 hours and 11 minutes, and the whole process was not accountable at all. Well, member for Drysdale you seem to be a voice crying in the wilderness on your side of the House. I pick up on the member for Johnston’s comments: get positive and give this process a go because we really are trying to put in place a process that will serve this parliament.
Mr Baldwin: Tell that to the member for Millner, if you want to get positive.
Mr HENDERSON: I will get to him in a minute. The issue of PowerWater in terms of the budget bill, as a government owned corporation, it was off budget, and it is off budget. The funding that goes from the Appropriation Bill to the Power and Water Corporation is via CSO funding from other agencies. In the last Estimates Committee process, the committee could have questioned ministers who were allocating CSO funding to Power and Water Corporation.
That process was there. To say that it was not there is totally wrong. This time, we are going to be making available the chief executive officer and other executive officers of the Power and Water Corporation to talk about the operational side of that government owned corporation. The reason it was not part of the process last time is because it was off the budget books. However, funding to it through CSO funding could have been questioned. To say that there was no ability to scrutinise PowerWater and the $300m worth of government funding to PowerWater could not have been scrutinised last time is wrong.
The member for Millner contributed in his unique style and I will leave other members to reflect on that. However, the essence of his debate was that this is a process that is trying to open up the accountability of this parliament, of the budget, to the people of the Northern Territory. Yes, we on this side of the House are very proud of our new process and we will continue to evolve it.
The member for Port Darwin said that the only difference between the Estimates Committee and the process that preceded it, the Committee of the Whole in the House, was the fact that you could ask as many questions as you wanted until questions were exhausted, and now we are somehow putting gag on questions. That is totally wrong. The fact that you have chief executive officers and chief financial officers means you can get to a much greater level of detail than you ever could with the question and answer sessions that went on before. She has missed the point. We will see whether 42 hours is enough. An extra day-and-a-half has been added to this process. I believe that it will be enough.
I thank the member for Johnston for the work that he has so ably done on this committee and for chairing the first Estimates Committee, a Herculean task. A man of great stamina, wit and affability, he did an absolutely magnificent job. He is certainly very keen to make this process as accountable and transparent as possible. The only thing I would say to the member for Johnston is: do not give the member for Drysdale too many hints about how to get re-elected; we really want to win that seat next time. Let us leave the member for Drysdale in his current grumpy mood and we will have a better shot at it.
The issue about item 25 that the member for Greatorex raised has been picked up in my previous comments. Let us leave public servants there to do their jobs and not get them caught up in policy debate. Let us move on with the process.
I thank all members who have not only contributed in the debate tonight, but participated on the committee. It worked very well. I would also like to thank my colleague, the member for Nhulunbuy, who oversaw and chaired the initial review into this process. We are moving forward. We are opening up the processes of parliament, reforming them. That is a good thing to do and I thank everybody for their contribution.
Motion agreed to; report adopted.
Madam SPEAKER: The question now is that the motion in respect of the appointment and operation of the Government Owned Corporations Scrutiny Committee be agreed to.
Motion agreed to.
Madam SPEAKER: The further question is that the motion relating to the appointment and operation of the Estimates Committee be agreed to.
Motion agreed to.
MOTION
Note Paper - Ombudsman’s Report 2001-02
Note Paper - Ombudsman’s Report 2001-02
Continued from 28 November 2002.
Ms MARTIN (Chief Minister): Madam Speaker, this evening I speak to the Ombudsman’s Annual Report, which I tabled in the last sittings of this Assembly. The annual report covers the period 2001-02. It also deals with some issues that have occurred more recently. As honourable members will be aware, the role of the Ombudsman is to receive and investigate complaints from members of the public who feel they have been treated unfairly or inappropriately by Northern Territory government agencies, statutory authorities and local government councils. In pursuit of these complaints, the Ombudsman can investigate the administrative actions, decisions, practices and procedures of the entity which is the subject of the complaint.
When it comes to annual reports from the Ombudsman, the government stands ready to be criticised from some quarters, come what may. If the number of complaints has risen compared to the previous year, then it may be argued that the standard of government service provision must have fallen. However, if the number of complaints goes down, then the same people would probably argue that the government is under-funding or, in some other way, impeding the work of the Ombudsman’s office. In fact, this government is determined to ensure that the Office of the Ombudsman remains a robust, active and credible investigator into complaints from members of the public against government agencies.
The Ombudsman is an integral part of my government’s transparency and accountability policies. According to the information provided in the annual report, approaches to the Office of the Ombudsman have gone down by 14%, with 1638 in 2001-02 against 1905 in 2000-01. This is explained, according to the Ombudsman, by minimal funding for public awareness raising, minimal staffing in the Darwin and Alice Springs offices, and other factors such as the change of government and the implementation by agencies of new policies.
With regard to the Alice Springs office, the Northern Territory is the only jurisdiction in Australia with an office outside the capital city. Regrettably, Central Australians were without an Ombudsman’s local representative for part of November and December last year. The free call 1800 was, and remains, available for all Territorians to contact the Darwin office. As honourable members will be aware, the Alice office reopened on 2 January this year, and Central Australians once again have direct access to the Ombudsman’s office.
When analysing the statistics contained in the Ombudsman’s report, it is convenient to divide the complaints between those directed at the police and those not directed at the police. In all jurisdictions, it is quite normal to have the highest percentage of complaints directed against the police and, for this reason, some states have a special process for dealing with complaints against the police. Looking first at non-police complaints, the overall number of complaints dropped from 1542 in 2000-01, to 1248 in the year of the report, 2001-02. Of non-police complaints, 89 were generated from the Correctional Services environment. This represents a drop on last year’s figures. The number of matters raised in 2001-02 regarding Correctional Services dropped by 54% on the previous year.
However, the issues complained about have changed with a significant decrease, 13%, in complaints about prisoner rights, and a significant increase, 15%, in complaints about attitude of prison officers. According to Correctional Services records, of the complaints raised in 2001-02, four were proven and a further 28 were awaiting response from the Ombudsman. Three of the proven complaints were directed at the Darwin Correctional Centre and were property related. The property was either replaced or compensation paid. The proven complaint at the Alice Springs Correctional Centre involved a family visit, and was identified as an administrative error. The Commissioner for Correctional Services and the Ombudsman have had ongoing discussions regarding the Ombudsman’s access to gaols. The recent provision of direct telephone access to the Ombudsman’s office for prisoners will improve direct access to the Ombudsman by prisoners.
In addition, Correctional Services is currently in the process of developing an information video that outlines the services which are available to offenders, and the prison procedures. The video will be shown to all inmates entering the adult custodial system. The Ombudsman will be invited to contribute to an awareness session to be included in the video, detailing the services available through his office. It is intended the information video will be available in languages other than English.
Territory Housing had the second highest number of complaints with 87.
Only two complaints were received against the Department of Chief Minister in 2001-02, and these were in relation to the Major Events Unit. The complainant was concerned with the awarding of prizes at the V8 Supercar races. The complaint was resolved with improvements made to operational processes between the Major Events Unit and the Hidden Valley promotions, and the adoption of a policy of prize money not being available until after a 72-hour appeals period. The other complaint against the Department of Chief Minister was the Office of Territory Development, and it is noted as being the subject of a complaint. The complaint was, in fact, an initial inquiry with the Ombudsman’s Office and the complainant decided not to formalise the complaint.
Across all non-police complaints, the complaints about agency practices and procedures were up by 20% - 399 in 2001-02 against 332 in the previous year. The Ombudsman speculates that, with the amalgamation of agencies, there was an increase in complaints about the way agencies provided the services, rather than with the substance of the service itself. The majority, 61%, of non-police approaches to the office were received from people living in the Darwin and Palmerston areas. Alice Springs contributed 25%. The Ombudsman is disappointed that areas outside the two major centres contributed only 14% of approaches, which includes four from interstate. The Ombudsman cites the low number of approaches from the rest of the Territory as reinforcing the need to undertake extensive access and awareness campaigns.
Excluding complaints against the police, 537, or 33% of general complaints received, were outside the jurisdiction of the Ombudsman. That is, the complaint should have been made, for example, to the Anti-Discrimination Commissioner, the Banking Ombudsman or Consumer Affairs. Whilst the Ombudsman cannot investigate these complaints, it is still a contributory factor to the workload of his staff, who need to understand the complaint in the first instance, then attempt to steer complainants in the right direction. That was an assessment of the non-police complaints.
I now turn to police-related complaints. Inquiries and complaints about the police increased slightly from 363 last year to 390 this year, which is a 7% increase. Of these, 56% were outside the Ombudsman’s jurisdiction. As with previous years, the matters most complained about were police procedures, abuse and rudeness, arrest, and harassment. Of complaints investigated, the outcome favoured the complainant in 29% of the cases. The outcome did not favour the complainant at all in 43% of the complaints. The Police Administration Act provides a time limitation in taking disciplinary action against police of six months after the breach of discipline was discovered. While recognising that police officers need to have complaints against them resolved in a timely manner, the Ombudsman notes the Commissioner of Police, in some instances, has not been able to take disciplinary action because of the time constraints. In this connection, the Ombudsman considers that:
- Over time, there is no doubt that the public’s confidence in the ability of the Commissioner to deal with
issues of a disciplinary nature with NT Police will be eroded significantly.
The Ombudsman goes on to state that he believes the Commissioner of Police shares his concerns. The Commissioner has indicated that he does share some of the Ombudsman’s concerns, but that the current review of some sections of the Police Administration Act is the appropriate place to deal with these issues.
As members would be aware, the Ombudsman can also receive complaints about administrative action by local government. The Ombudsman has highlighted a particular incident involving a community government council. In May 2001, Ombudsman staff visited a community near Katherine in response to a complaint. The end result was a significant number of complaints that were referred to the Department of Local Government to resolve. Legal representatives of the community government council and the Local Government Association of the NT later raised concerns regarding the visit - in particular, the amount of notice given and the types of investigations carried out. The Ombudsman believes that it was a lack of understanding of his role which led to the concerns and indicates there was:
- … a strong undercurrent that suggested members of the community were not entitled to question the
activities of the council through channels such as the Ombudsman.
I will also endeavour to provide access to my office which reflects real and equitable outcomes and,
ultimately, the accountability of community government council cannot be overridden by any cultural
sensitivities.
- Subject to any unforeseen developments, I am confident that the office now has a reasonable funding base
from which to operate.
The review panel was to submit a report to me on the Ombudsman (Northern Territory) Act at the end of 2002. However, I have approved a request from the review panel to be given a four month extension in which to complete their task. In his annual report, the Ombudsman raised the issue of all steering committee members of the review panel being public servants and the possible conflict of interest this represents. However, the Ombudsman indicates that he has not experienced any bias by the steering committee members, or an indication that the process is being used to restrict the role of the Ombudsman. Indeed, says the Ombudsman:
- If I detected such an attitude, I would not hesitate in indicating my intention to withdraw from the process,
as I could not support it.
I will conclude my statement on a positive note. While it might seem that the Ombudsman only reports his criticisms of agencies, credit is also given to those agencies which have, in the words of the Ombudsman:
… demonstrated a willingness to being responsive to complaints and to work with my staff in the resolution
of complaints.
Mr BURKE (Opposition Leader): Madam Speaker, I thank the Chief Minister for her comments with regards to the Annual Report of the Ombudsman for the year ending 30 June 2002. As usual, with the Ombudsman’s report, we get a comprehensive report which is easy to follow and always interesting to read, particularly the appendix with regards to the case studies he always includes in his report, which I find quite interesting. I wanted to take the opportunity, however, in my response, to talk about one particular incident that the Ombudsman addressed in this report, because it is particularly important.
We read the Ombudsman talking about the standards of agencies and the important role he has in the Northern Territory; a role that he says in his mission statement is:
- … to resolve complaints in an appropriate, fair, just and independent manner.
I underscore the words ‘fair’ and ‘just’ in that. He also goes on to say:
- In terms of service standards I strongly believe that the services provided by the Ombudsman should be of
the highest quality, open to scrutiny and accountable.
Madam Speaker, the person who should take note of those particular statements very carefully is the Ombudsman himself. I believe he has reported unfairly and unjustly on an individual, who was a member of this parliament, in an earlier report and has made no attempt to redress that inequity and unfairness.
He refers in this report to an own motion investigation he conducted on 25 March 2002, a report that he specifically prepared for the Attorney-General, Hon Peter Toyne, and he forwarded that report to the minister on 14 June 2002. That report was the subject of considerable media comment, and that investigation is now fully complete. The Ombudsman had the opportunity in this report to clear up any outstanding issues that would have been necessary to be made available to the public.
He must have been proud of his own motion report because it was scathing of the Commissioner for Corrections and the office of Corrections at the time. It talked about illegal phone tapping and other issues. He, in this report, which is the final report, refers again proudly to the earlier report of 25 March 2002 and says:
- At the time of writing this report, my own motion report has been tabled in the August sittings of the
Legislative Assembly and a copy of the report is available at www.ombhs.gov.
This is obviously an individual who is very proud of that own motion report and very proud of the comments contained in it. If you refer to the report that was tabled in August, it concerned a complaint that was made against the Correctional Services department. There were two major complaints. Complaint A was whether the monitoring system at the prison was being used in accordance with relevant legislation, namely the Commonwealth Telecommunications (Interception) Act, and the adequacies of controls, protocols and guidelines. In Complaint B, there were a number of allegations that there was tapping of conversations between prison officers that were being monitored and recorded on tape, and whether the tapes of such conversations were being transcribed and used for inappropriate purposes. The issue that concerns me is that he said that the complaint in Complaint B was that:
… tapes of recorded telephone conversations between prison officers regarding industrial relations
matters pertaining to a ASCC were provided to the then Minister for Correctional Services, the
Hon Eric Poole, MLA.
Essentially, the complaint that he investigated was that the conversations of prison officers regarding industrial action were being taped under the authorisation of the minister and provided to the minister at that time. In terms of his resolution and findings of Complaint B, he says:
- In regard to Complaint B, it is my view that this complaint has been substantiated …
He does not qualify the substantiation, but says it has been substantiated:
… and I am of the opinion that there was administrative action which was taken that was both unreasonable
and appears to have been taken contrary to law pursuant to section 1(a) and 1(b) of the act.
That was an alarming report for anyone to read. When I read it, I thought: ‘He must be sure of his facts to have written such a statement about one individual’ because it clearly pointed to something that was illegal and would clearly lead to some type of investigation. What it did at the outset is sparked, rightly and understandably, media comment. The media comment that started immediately was in an edition of the NT News on Saturday, 17 August 2002. The headline was: ‘CLP tapped phone calls’ by Camden Smith, political reporter, responding to those comments of the Ombudsman:
- The former CLP government …
Not may have or might have:
The former CLP government tapped prison officers telephone calls, it was revealed last night. ‘The tapes
of conversations were given to then Correctional Services minister, Eric Poole’, Ombudsman Peter Boyce said.
In a report tabled in the Territory parliament, Mr Boyce said the government’s actions appeared to be illegal.
I am quoting inter alia here, not the whole article:
Tapes of recorded telephone conversations between prison officers about industrial issues were given to
Mr Poole. Mr Boyce found the complaints were substantiated …
It went on, criticising the commissioner, the Correctional Services department, and finally at the end it says:
Mr Poole could not be reached for comment yesterday.
Another report that appeared on 20 August, three days later, by Cam Smith again:
Stone unaware of phone taps.
This article then started to weave into the former Chief Minister, and whether or not the Chief Minister was aware or not. He obviously said he had no knowledge of what was going on about the allegations with regards to minister Poole. That article sparked an editorial in the Northern Territory News which said, on 20 August 2002:
Phone tap outrage. There are many disturbing questions arising from the Ombudsman’s revelation that
the previous government tapped prison officers’ telephone calls. The Ombudsman said tapes of conversations
were given to then Correctional Services minister, Eric Poole. The prison officers were planning industrial action
at the time. ‘Shane Stone, who was Chief Minister at the time’, the Justice Department’s Richard Coates
said yesterday, ‘tried to play down the gravity of the phone tapping’. Mr Stone said: ‘I don’t believe the
relevant minister would have known anything about it. That is not what the Ombudsman found’. Mr Coates
said: ‘Doesn’t sound like a conspiracy to me, it was just a dumb idea at the time’, he thought.
The question the editorial in the NT News asked:
Who ordered the bugging, was it a politician or a bureaucrat? This was surely illegal, why are no charges
being laid? Why wasn’t Mr Poole asked to give evidence to the Ombudsman?
Then it goes on to link all of this to the former CLP government:
In the Territory, we have become so accustomed to undemocratic practices that there is a shrug of the shoulders
as if to say: what do you expect?
It is one thing to get political mileage out of this sort of stuff - and I certainly am not blaming the NT News in this regard, or newsworthy articles. In the first instance, the Ombudsman must have known the gravity of the allegations he was making. The media, understandably, would have thought that there was significant substantiation of the gravity of those comments for the Ombudsman to make them, so they ran confidently on that particular issue.
I was concerned to the point where I asked two questions in this Assembly, both to the Minister for Justice and Attorney-General, on 22 August. I said to the Attorney-General, inter alia: ‘In terms of the findings regarding Complaint B, it is quite limited and, to my mind, unsubstantiated’. I believe that if you looked at that report of the Ombudsman, actually, the allegations were unsubstantiated, whereas he said the complaint was substantiated. He, at the time of that report, was being challenged by the Commissioner for Corrections as to the findings he was given, and there were further reports that had not been provided, certainly to him, that the Commissioner for Corrections still intended to provide, as I understood at the time. I believe it was unsubstantiated, and I said also to the Attorney-General:
In the interests of natural justice, can you confirm to this House that none of these reports have found that
the previous CLP government or ministers were in any way involved in the tapping of prison officers’
telephone calls as stated in the Northern Territory News on two occasions. What action have you taken,
or do you intend to take, in relation to this issue?
The Attorney-General, in the House, in his reply, was reasonably fair in his answer. He said, in part:
The report of March 2002, the first of two reports, specifies in relation to Complaint B which is basically
asking whether the tapes of recorded telephone conversations between prison officers regarding industrial
relations matters pertaining to the ASCC were provided to the then minister for Correctional Services,
the Hon Eric Poole, MLA. In answer to that question, his finding is in the first report …
He then reads the finding, and it says that, in his opinion, it is a fairly open finding.
I asked another question of him - the minister was saying to me that he thought it was fairly open and there was, in his mind, a degree of unsubstantiation. I am not going to read out the full answer; it was quite a lengthy answer by the minister. It is in the Parliamentary Record of Thursday, 22 August. I asked a second question of the minister:
- This is a very important subject. But to confirm what you have said, in the first report of the Ombudsman, the
allegation against the CLP government and the minister was unsubstantiated and, in the second report,
there is no reference to the government or the minister. Is that the end result of your understanding of the matter?
He answered by saying:
- … I take that to mean that, if he has not refuted the first report’s finding, that you would probably say, at the very
least, it is an open finding.
So, the Attorney-General has taken his bets either way at the moment. He knows, in his own mind, that there is not much there. The politics are starting to be played in referring this matter to the Federal Police for investigation. I was coming from an attitude of simple natural justice here: that there was a person who could not defend themselves, who was a former member of this Chamber, a minister discharging his responsibilities, who had allegations made against him by the Ombudsman - terrible allegations I felt – that were, to my mind, unsubstantiated. I went around to that back room out there and said to the minister at the time - I looked him squarely in the eyes and said: ‘Will you give me an undertaking that, if there is nothing to this, you will come out publicly and say it, because you are dealing with a person’s character and reputation here?’. He said to me: ‘I give you that undertaking’. He said that to me behind that door there.
That is what the minister said to me but, what minister Toyne did, in fact, was on 24 August, he gave an interview with the NT News. The edition of the NT News after that interview with Dr Toyne, contained a quote from the minister. This is the minister who says to me in the back room that he does not think there is all that much to it, and he will give an undertaking that he will make a public apology if there is nothing to it. If, at the end of the day, there was nothing to it, he would make that public. He then does an interview with Cam Smith and says:
- If the Federal Police find a clear connection back to Eric Poole or anyone else in the CLP ministry at the time,
then they will have to live with that. They may well be charged along with anyone else who is seen to have
conducted illegal activities.
This is the minister. If you read the answer he gave in this House in the Parliamentary Record for two questions, where he says, for anyone to read, that he does not believe - and I am interpreting his answer. However, if you read it, he is saying that, certainly with regards to the illegal procedures being followed in how the telecommunications equipment was being used, there were clear issues of a breach of the Telecommunications (Interception) Act. However, he does not go near the issue of Eric Poole. In fact, in his answer - because I checked with him, because I asked him beforehand before I asked the question - I expected him to stand up in this House and clear it up. I asked him beforehand: ‘If I ask you these questions, will you clear it up, because I think it is unfair?’. ‘Yes, I will’, he said. In his answers, he basically takes a bet either way and I was disappointed. However, he certainly does not go to the fact that he felt there was anything really in it, if you interpret his answer.
When I saw this in the NT News - this latest one where he plays politics about the police getting the CLP or anyone else involved - I wrote Hon Peter Toyne a letter on 28 August 2002. I will table that letter, where I said to him:
- Considering our conversation last week …
That was the conversation prior to asking the questions:
- Considering our conversation last week, my questions in parliament and your answers, I was disappointed
but not surprised with the tone of the article and comments attributed to you regarding the Ombudsman’s
report on tapping of phone calls in the Alice Springs Correctional Centre (NT News 24 August 2002).
On the information available to me, and comments by you …
That was the comments outside:
- … and your department’s CEO, the CLP and Mr Eric Poole has no case to answer.
I would have thought, as Attorney-General, your comments should have served to clarify the situation.
Unfortunately, they appear to have inflamed them.
I would be grateful if you would provide me with the three reports:
I wanted to read all the reports to get a full idea of what exactly had gone on:
- 1. the initial Corrections investigation;
2. the full reply by Commissioner Moore to the draft Ombudsman’s Report; and
3. the full reply by Commissioner Moore to all of the Ombudsman’s recommendations.
I also seek an assurance from you that I will be kept informed about the AFP investigation and its result.
I seek leave to table that, Madam Speaker.
Leave granted.
Mr BURKE: 28 August 2002. I will table all of these. I received a standard letter on 2 September saying this will be brought to the minister’s attention.
Now, cop this: this is the open, honest and accountable Ombudsman who is reporting on departments, with a mission to be fair and just and to ensure his service standards. He says:
- I strongly believe that the services provided by the Ombudsman should be of the highest quality, open to
scrutiny and accountable.
This is what you get back from Dr Toyne after checking with the Ombudsman:
Thank you for your letter of 28 August 2002, regarding the Ombudsman’s report of the telephone monitoring
system at the Alice Springs Correctional Centre.
Unfortunately, I am unable to accede to your request for a copy of the initial Northern Territory Correctional
Services investigation, Commissioner Moore’s reply to the draft Ombudsman’s report, and Commissioner
Moore’s response to the Ombudsman’s recommendations. The Ombudsman has advised my department that he
objects to production of these documents, and all other documents related to the matter other than the report
dated 17 June 2002 which was tabled in the Legislative Assembly, on the basis of the provisions of section 23 of
the Ombudsman (Northern Territory) Act. I enclose (*) a copy of that section … You will note that it is a serious
offence to breach those secrecy provisions.
- As to the Australian Federal Police investigation, I am able to advise at this stage that, on 23 August 2002,
my department referred the Ombudsman’s report to the AFP. To date, a response has not been received.
I received that from the minister on 7 October. I then wrote to the Attorney-General once I received that letter. It is important that I read these into the Parliamentary Record, even though the letters are a bit lengthy.
What we have at this stage is the Ombudsman makes the allegations, believes they are substantiated, and when you try to get to the bottom of what the context of these allegations really are and what substantiation there actually is, you draw a blank from the Ombudsman, that says: ‘I can make allegations, I can say they are substantiated, I can blemish a person’s character. I can say, in fact, that he has been acting illegally, and I do not have to tell any of you about why, because I am the Ombudsman. And by the way, read the act, because the act says I do not have to tell you anything and I am protected by secrecy provisions in it’.
Well, I do not think that is good enough. I wrote to the Attorney-General and said:
- Thank you for your response of 7 October in relation to the Ombudsman’s report on the telephone monitoring
system at the Alice Springs Correctional Centre.
I am somewhat at a loss to understand the Ombudsman’s objections or their relevance to what I sought from you.
The initial Northern Territory Correctional Services’ investigation is a matter for that department and not
something over which the Ombudsman holds a veto. His veto extends only to information gained or obtained
‘in the course of, or for the purposes of, an investigation by the Ombudsman’.
- As the Ombudsman notes in his own report of June 2002, he ‘deferred any action on the own motion investigation on being advised that the Commissioner for the Northern Territory Correctional Services had commenced an internal investigation’. That to me reads as if the Commissioner is conducting an investigation independent of the Ombudsman and not as a part of his investigation.
- As to the two replies from the Commissioner to the Ombudsman’s report, I would again suggest that these
are subsequent to the investigation and not part of it and, again, are not covered by section 23 of the
Ombudsman (Northern Territory) Act.
So I would again seek those documents and perhaps ask that you might seek advice from the other arm of
your department as to whether the Ombudsman’s writ runs as wide as you say he has suggested.
I would also be interested in why section 26(7) of his act does not seem to figure, and I quote:
- ‘The Ombudsman shall not in any report under this act make any comment adverse to any person unless he has taken steps which are, in his opinion, sufficient to ensure that the person has been given a reasonable opportunity of being heard in the matter and the person’s defence, (if any), is fairly set out in his report’.
I would have thought that when in his report, he specifically names people as being subject of a complaint, and
then in his findings issues a blanket finding which could be interpreted as including that person, there would
be some acknowledgement of section 26(7) and what action was taken in regard to that person.
I do acknowledge that you are not the relevant minister in regard to the Ombudsman, but I appreciate your actions
in this matter and would be interested in your comments on this point.
We got as far as that. After a long period of hearing nothing, on 12 February this year, shortly before these sittings, I received another letter from the Attorney-General. Madam Speaker, I seek leave to table that previous letter.
Leave granted.
Mr BURKE: I received the final letter from the Attorney-General that says this:
- I refer to our previous correspondence in relation to the Ombudsman’s report and the telephone monitoring
system at the Alice Springs Correctional Centre.
I advised, in my letter of 7 October 2002, that the matter had been referred to the Australian Federal
Police for consideration of criminal charges arising from the use of the telephone monitoring system.
I have now been advised by the Australian Federal Police that, after careful consideration of all the evidence
before the Ombudsman in respect of his investigation, and upon receipt of legal advice from the Commonwealth
Director of Public Prosecutions, it has been determined that the public interest would not be served by
prosecuting anyone in respect of those matters, and that there is no reasonable prospect of a conviction of
any person. Accordingly, the Australian Federal Police have declined to take this matter any further.
That is the end of the matter as far as the Attorney-General is concerned.
The Ombudsman has laid serious allegations in a report against a person’s character and the government at the time by his statements in that, if the minister was involved in the phone tapping, the department was compliant in the phone tapping, the minister was being briefed on conversations of industrial officers of the time, and those allegations in that report extended to a large amount of media comment which impinged on – I am not worried, frankly, about the character of the CLP. I am not worried about those allegations. What I am mainly concerned about is one Eric Poole because, as a member of this House, particularly ministers who are now in positions and could themselves be subject to a similar comment through no fault of their own - which I believe has clearly been the case in this instance - by the Ombudsman, they need to be protected.
We, all of us, have an obligation to protect them. Any one of you current ministers could end up in the same boat where the Ombudsman lays down a report which, in itself, does not provide sufficient evidence. That report leads to serious allegations in the media that impinge upon the character of a person - lasting allegations. I am sure in many people’s minds out there, there is no question that Eric Poole was complicit and acted illegally in tapping prison officers’ phone calls; it was all part of an organised system. No one has tried to defend him - no one. Worse, we cop this, where the Ombudsman can say this and hide behind his own act when, I believe, he is clearly in breach of his own act. He has used the secrecy provisions of his own act to extend to not releasing material which, I believe, is covered by those provisions.
The Attorney-General copped it sweet. The police have come out and said that there is nowhere to take this, and no one has come forward and done anything to protect the integrity and reputation of Eric Poole. It is a sad saga. Frankly, I believe the Ombudsman, in this instance, stands condemned. I have a great respect for Peter Boyce; I have respect for the way he has done his job in the past. However, I have no respect for anyone - bureaucrat or otherwise - who will set out in a report to destroy a person’s reputation, and knowingly write comments that will have that result, sit back and watch the most atrocious media being run on that individual and the government at the time, and do nothing to try to ensure that the public interest is served by the full facts being revealed.
I have used every mechanism available to me. I have spoken personally with the Attorney-General on the issue; I have asked questions in this House; and I have written letters to the Attorney-General on the matter. The result of the investigation has come to nothing, and I believe that, certainly, this issue needs to be drawn to a close, and it needs to be drawn to an honourable close. If it is not going to be the Ombudsman himself who makes an apology, it needs to be the minister responsible on behalf of the government, because we live under a system where a person is innocent until they are proven guilty. The allegations clearly were that the person acted illegally, and the government at the time acted illegally with regards to phone tapping. The Federal Police have been involved and have said that they are not taking this case anywhere. Certainly, in the case of Eric Poole, he deserves an apology and a clear apology. I look for that apology forthcoming.
I can only say that what could have been a good report was marred by the fact that the Ombudsman himself did not take the opportunity to clear up any of the issues that he raised in the earlier report, which were issues of the gravest substance.
Dr TOYNE (Justice and Attorney-General): Madam Speaker, I welcome the opportunity to further clear up this matter, because, as the Leader of the Opposition quite clearly said, this has been a very long saga. One of the most frustrating things about it is that there has not been a clear closure based on irrefutable evidence either way.
The conversation that the Leader of Opposition was referring to was in the corridor behind the Speaker’s Chair. The context of that conversation was that there were not one but two Ombudsmen’s reports into this matter. The first was a working document that was produced in the course of what was a fairly protracted investigation, and passed to the Commissioner for Corrections for comment. The second was the final report document that was released by the Ombudsman when he finalised the investigation and report.
I said, in reply to the Leader of the Opposition’s question on that day, that there was inconsistency between the interim finding within the first of the Ombudsman’s reports and the final report into this matter. To take this matter further and, hopefully, to get some closure on it, the matter was then referred on to the Federal Police who, after having a look at the available evidence, both in terms of documentation and of the witnesses who had given testimony about what had happened, believed that there was not a body of evidence there to conclude an investigation with charges.
To give the Leader of the Opposition, and certainly Eric Poole whom I have a great respect for, some comfort in this, I can point to a very basic principle of law: that people are innocent unless proven guilty. In this case, quite clearly, the reports of the Ombudsmen were inconsistent from one report to the other, when we had a chance to compare the two documents. That, in itself, did not provide a clear resolution of the investigation regarding the involvement or otherwise of the minister. The Federal Police have clearly found that there was not evidence available to make a pronouncement about any law breaking that might have been involved in this incident.
Therefore, on the balance of it, there is no evidence or any accusation, or any proven allegation, which would be a slur on Eric Poole’s character or actions in this matter. I am quite happy to say here, in the Parliamentary Record, that Eric Poole is an innocent man; for the very reason that he is an innocent man unless there is evidence that irrefutably proves that he is guilty of doing anything. That is not perfect, I know, because it would be nice to pull out a document or produce a witness who says: ‘No, there was absolutely no involvement of the minister’. However, the world is not like that. Many of these issues come out where that very clear evidence is not available to absolutely, irrefutably take the allegations away and deal with them. Eric Poole has not been, and will not be charged, unless there is some further evidence brought forward. However, that is very unlikely because of the history of this and the length of time that has passed. I personally, as I said, and I repeat, have great respect for his character and would be surprised if there was any action of this sort on his part. I do not know if that satisfies the situation.
However, the last point I want to make - and it is a very important point - is that the Leader of the Opposition has stood here tonight and climbed into me for my inability to produce documents from the Ombudsman that he had a desire to see. The Ombudsman is an independent officer. He works to his act, and he is independent to any of us as ministers, and should be. It is the Ombudsman’s call and power to absolutely determine what internal documentation or information comes from the operation of his office. I respected that, in that when I received the letter from Denis Burke on 7 October last year, I contacted the Ombudsman and said: ‘What is your decision on this?’, as I would do because of respecting the independence of his position. He declined to release those documents to the Leader of the Opposition, as he has every right to do.
That is the end of the matter regarding whether anyone is hiding anything. The only thing that we are putting forward, as a government in handling the matter in that way, is showing that we do respect independent statutory positions and people like the Ombudsman, the Anti-Discrimination Commissioner and the new Information Commissioner. They are in an independent position and they will be treated as independent positions. We will not be leaning on anyone, or attempting to hide or manipulate any process that is going through those offices. That is very clearly what we have done in this case. Far from the assertions of the Leader of the Opposition that we are somehow not following open and accountable processes, this is a very clear case where, in fact, we did exactly that - we respected independence and we did not cross that boundary line.
With regard to Eric Poole, I cannot say anything further than I have said. This matter, sadly I guess, remains unresolved to the zone of certainty. It is simply an open outcome on what was a very sad and unfortunate incident that happened in our Correctional Services system.
Mr STIRLING (Treasurer): Madam Speaker, I listened with some interest to the Leader of the Opposition go through that situation as he outlined in respect of the Ombudsman’s investigation on that matter. It is something that people should be concerned about if this activity had been going on. I listened also to the Minister for Justice and Attorney-General. You have to agree with him when he said at the end that it does remain unresolved, particularly when - and I can understand there seems to be a bit of a habit creeping in on the other side to attack the public servant. It would seem to me that the Leader of the Opposition has quite serious difficulties with the incumbent Ombudsman, if not with the role of the Ombudsman himself.
It does seem, when he read from the letter from the Minister for Justice and Attorney-General, that the AFP finally reported that, in the first place, no public interests would be served in continuing to investigate this matter. That is their call, that is the decision they made. However, they also added: ‘Little likelihood of a successful prosecution’. Of course, that does not clear anybody. It does not mean it did not happen. One wonders why the Ombudsman would allege something of this nature happened if there was not something to it. I do not, and cannot read, the Ombudsman’s mind, but certainly something untoward went on to lead to this going on the record in the first place. The Attorney-General is quite right; the matter will never be resolved now because the AFP have come back with the two points: no public interest to be served, and little likelihood of successful prosecution. I certainly would not want that behind my name.
The reason that it was not completely followed through was because there was little likelihood of successful prosecution, but that does not clear anybody.
In relation to the comments that the Leader of the Opposition made about the Minister for Justice and Attorney-General in this matter, what could he do? What could he say? Once any issue is a matter of police investigation and police activity, you are bound to stay out of it; you cannot make any public comment. You might have a view, but you cannot express that until such time as that investigation has been worked through. We will never know the truth. Certainly, from former minister Poole’s position, and also from those prison officers who may or not have had their phone calls tapped, that does remain an unsatisfactory situation.
The Ombudsman, from the perspective of government though, does provide an important, valuable service for the community in providing that impartial avenue for public complaints about government services to be investigated. In respect to my portfolio, the Ombudsman investigated seven matters in Treasury 2001-02 including two matters in the Racing, Gaming and Licensing area: one relating to the Commissioner of Taxes, one relating to the Superannuation Office, and another to the Procurement Review Board. The Ombudsman’s report outlines one of these matters as a case study concerning a taxpayer and the Commissioner of Taxes. His finding, whilst appreciative of the complainant’s position, was that the Commissioner of Taxes had acted reasonably, as I would hope he would. It is worth noting that the Commissioner of Taxes and the revenue office put a lot of effort on an ongoing basis into public education to improve taxpayer awareness of their obligations under the Territory’s tax regime. This aims to avoid the type of situation that occurred with the taxpayer in the case study.
The two matters in the Racing, Gaming and Licensing area concern an unhappy sports better whose team did not win, and a vehicle seized under the provisions of the Liquor Act. I am advised that both of those matters have been closed.
Procurement, although the responsibility of minister Henderson, is another area in Treasury where there can be complaints referred to the Ombudsman. These are mainly in respect to the lodging of tenders, and the treatment of tender documentation usually relating to the deliberations of the Procurement Review Board. As honourable members would be aware, a major review of government procurement processes has recently been undertaken. The government will shortly make decisions on the outcomes of the review. This will enhance processes and improve the awareness of agency staff and tenderers of the procurement guidelines, and ensure that procedures are followed appropriately. It should reduce the scope for complaints to occur.
The Ombudsman’s report refers to a recommendation from the joint review committee report into a particular incident involving a student and a school-based constable in the presence of a teacher. The joint review committee report into the matter recommended that the police, in conjunction with the Department of Employment, Education and Training, conduct a review of present strategies and clarify respective roles, responsibilities and powers of teachers and police. Following that joint DEET/police review, a number of recommendations were agreed to.
It was recommended that the current review of the Juvenile Justice Act consider police powers in relation to searching juveniles, particularly in relation to drug offences due to schools being deemed not to be public places; DEET policy in relation to improper conduct of a sexual nature be amended to broaden its ability to include other misconduct by employees towards students; DEET develop policy addressing physical violence in schools; DEET investigate the opportunity to use the student administration management system database for collection of data in relation to incidents; DEET develop a system-driven professional development module for school-based staff regarding dealing with incidents in schools; a key component of the redesign of the DEET web site be the availability of up-to-date schools policy information; DEET develop guidelines to clarify protocols for school-based staff seeking information from students in relation to incidents, particularly school-based staff require clarification of what they can legally do, and what they are legally obliged to do, when making inquires or investigating school disciplinary issues; DEET ensure that any amendments to guidelines should not restrict the capacity of school staff and police to take discretionary action where appropriate.
Madam Speaker, perhaps it makes you pleased that you are no longer teaching. I feel that way when you see the issues that teachers have to deal and comply with.
There are a ninth and tenth recommendation: Given the present update of the schools policy handbook, DEET seeks legal advice as necessary on potentially contentious policy matters; general managers ensure all schools have clearly documented protocols and procedures in place that are known and understood by all staff and school-based police officers in relation to managing crime detection and prevention in schools.
I understand the police have agreed to work with DEET on implementing those recommendations, and that a report should shortly be forwarded to the Ombudsman for his information.
Madam Speaker, I thank the Ombudsman for his 2001-02 report.
Mr ELFERINK (Macdonnell): Madam Speaker, very briefly, I discuss a couple of issues in relation to the Ombudsman’s report.
The first issue I touch on appears at pages 35 to 37 of the report where he outlines a complaint he dealt with in a local government authority. As the shadow minister for local government, I have an interest in this. I am intrigued by what the Ombudsman has had to say. He has had to provide in the process a briefing to the Chief Minister, which is entirely proper. However, I would like to know what the Minister for Local Government is going to do to heal the obvious damage and rift which has occurred between LGANT and the Ombudsman in this case. I feel that the Ombudsman has tried very hard to do his duty in this instance and, yet, finds himself the subject of some criticism - perhaps, as he suggests, as a result of a misunderstanding with LGANT. However, it would be very good to see the minister taking an active role to try to smooth over the issue that arose between LGANT and the Ombudsman’s Office.
I am amazed by what I have just heard from the Attorney-General and the Treasurer in relation to the former Minister for Correctional Services, Eric Poole. I cannot believe what the Attorney-General has said. The suggestion from both of them in relation to Eric Poole is that, because there is no prosecution forthcoming, there is some sort of lingering doubt hanging over Eric Poole and the decisions that he took, and information that he may or may not have been privy to as minister. I am not familiar with all of the details of this matter. However, there is a principle of law in the country that says you are innocent until proven otherwise. What both these individuals have done is come into this House and said things that would, in any other circumstances, be a slander. I challenge both of them to make the same suggestion outside of this Chamber to the media, the public or anyone else. What they have said is nothing shy of disgusting.
Because the police did not go ahead with a prosecution, there must be some lingering doubt is the suggestion. Police investigate many things and find no evidence and, consequently, say there is little likelihood …
Mr Stirling: We did not say that. There is a bit of difference between no evidence and a little likelihood.
Mr ELFERINK: … of a successful prosecution. Well, tough! This amazes me about the Treasurer. He is actually, in my opinion, generally a very decent bloke. However, every so often he climbs down into the gutter in this fashion and it does not suit him well.
The first law officer of this Territory has the responsibility to make sure that the law is looked after, yet he is prepared to slurry the name of a person such as Eric Poole with no evidence. It is obvious that the police were not interested, otherwise they would not say there would not be a public interest. I am sure there is a public interest if a minister has acted improperly, certainly to the point of breaking the law. There would be a good public interest for prosecuting that person whether they were a minister or not. But no, the police are not interested. That shows you how little evidence there must be - how little evidence. I would suggest no evidence. I do not know exactly; I do not know the details. But that man is innocent of anything - absolutely anything - he stands accused of by either of these two grubs.
Mr KIELY: A point of order, Madam Speaker! I ask him to retract that. He just cannot go around using that sort of language in this place.
Madam SPEAKER: Yes. You should not use that language, member for Macdonnell, you know that. Please withdraw.
Mr ELFERINK: I withdraw, Madam Speaker. Either of these two pre-pupates. As far as I am concerned, this is an outrageous slur - an outrageous slur.
Ms LAWRIE: A point of order, Madam Speaker! The member has been asked to withdraw and he uses the Latin terminology. That is challenging the Chair.
Madam SPEAKER: Member for Macdonnell, you know that you used terminology that was really unacceptable and was offensive to the member. Withdraw.
Mr ELFERINK: I withdraw, Madam Speaker.
It is interesting, however, the offensive allegations that we hear - unsubstantiated allegations – when they come in here and say: ‘There is no evidence but there is a lingering doubt’.
This is the attitude that saw the gulags of the Soviet Union filling up with 25% of the population of St Petersburg. All that has to happen is a denunciation. All that either of these two men have to do - the only thing they have to do - is go out and say what they said in this Chamber tonight, outside in front of a TV camera. I challenge them to do it, and I bet that they are too gutless, too cowardly, and have no intestinal fortitude regarding what they have said. It is an outrageous slander. Under the criminal law and under any sensible legal system that exists anywhere in the world, you are not guilty, therefore you are innocent. To come in here and suggest for a second that, because no evidence could be found, that there is some lingering doubt or bad smell, is just a behaviour of the lowest order. Indeed, both men should be ashamed of themselves.
Mrs AAGAARD (Health and Community Services): Madam Speaker, I will only make a very brief comment on the Ombudsman’s report.
In his annual report, the Ombudsman has not specifically criticised the Department of Health and Community Services, but I do note his comments on government agencies in general. He has stated that he has become aware that agencies do not comply with their own legislative regulation for the following reasons:
… poor system monitoring, poor administration of responsibilities and a lack of resources to implement
regulatory responsibilities.
There are relevant strategies that are outlined within the Bansemer review report of my department. It will help to protect my department from the shortcomings mentioned above:
Complaint resolution: the establishment of a centrally located mechanism to deal internally with complaints
from members of the public.
Business Rules: that is, the setting up of business rules that clearly focus on how the agency does business,
both internally and externally.
Evidence-based Policy: A Territory-wide policy that will allow for policy development to be evidence-based
and consultative.
Performance and Evaluation Unit: This will allow the department to identify and manage risk, and to
coordinate the internal and external audit requirements of the department.
Finally:
- Quality Improvement: The establishment of the Northern Territory Health Quality Council, which will improve
quality by an ongoing process of reform and by providing independent scrutiny.
Mr VATSKALIS (Transport and Infrastructure): Madam Speaker, in his report, the Northern Territory Ombudsman referred to several agencies which he felt had been particularly responsive to complainants, and had cooperated well with his office for the objective of resolving the complaints made. I am pleased to note that my Department of Infrastructure, Planning and the Environment was noted for an accolade by the Ombudsman.
At page 33, there is an accolade for Motor Vehicle Registry within my department:
When the Ombudsman received complaints concerning the Motor Vehicle Registry the department was prepared
to enter into meaningful dialogue with the complainant in his office, and to consider exercising appropriate discretion to resolve the complaint, where appropriate. In many cases, this resulted in complainants receiving outcomes that ameliorated the potential financial impact of a decision made by the department and by the Motor Vehicle Registry. The Motor Vehicle Registry customer complaint process referred to was implemented on 2 August 2002, and it continues to be used by the Motor Vehicle Registry in the resolution of customer complaints.
Some of the case studies in the report related to my portfolio, at page 122, ‘Allegation of Improper Discriminatory Licensing Practice’. The complainant wanted to escort wide loads in excess of 5.5 m. The Northern Territory has a unique escort category that can escort wide loads over 5.5 m wide. He was allowed to escort loads up to 5.5 m in Queensland and this accreditation was also recognised in the Northern Territory. However, the Northern Territory has separate competencies, experience and training for loads over 5.5 m wide, escort categories which are unique to the Northern Territory and not offered by other states and territories. A national project is addressing competencies and consistent practices for pilots and escorts between states and territories, but this project has not yet been completed.
On page 123, ‘the cancellation of vehicle registration without identification’. The cancellation by MVR as carried out was based on wrong information provided by Queensland Transport. MVR corrected the customer’s vehicle registration record as soon as it was aware of the mistake, and ensured the customer had continuity of vehicle registration. MVR procedures were strengthened to ensure that registration cancellation advice from all jurisdictions is only actioned after receiving complete information. It was noted at the time of this error occurring, around 2001, Queensland were not on the national mirror database system NEVDIS, as the Northern Territory has been since the 4 December 2000. Participation in the national mirror database virtually eliminates the possibility of such errors occurring again.
On page 134, ‘taxi operator nearly frozen out’. The complainant was looking to purchase a taxi in Alice Springs and was proceeding with accreditation prior to the temporary cab and taxi numbers in November 2001. The complainant’s application for accreditation was mislaid and he had to reapply. Because the complainant’s operator accreditation was finalised after the freeze, he was, unfortunately, no longer able to obtain a new licence for a taxi in Alice Springs. Due to the circumstances, I approved the issue of a new CVL on the basis he was purchasing an existing taxi, and the existing CVL was to be handed up with no increase in CVL numbers.
On page 125, ‘adverse consequences was as a result of a poor standard of advice’. A complaint was made against the Motor Vehicle Registry, as the complainant was unable to provide sufficient evidence of identity to establish a new company and register a vehicle in that company’s name. The complainant was unable to obtain such proof before leaving for East Timor. An MVR officer apparently advised the complainant to effect the registration in their name instead of the company, and it could then be adjusted on return from East Timor. The vehicle was registered and stamp duty paid. When the complainant returned from East Timor and attended a different MVR office, in an attempt to transfer from their name to the new company name, the MVR required additional stamp duty for the second transfer of the vehicle. The complainant lodged the complaint with the Ombudsman and, in the process of the preliminary inquiry, MVR were able to determine that the customer’s claim, at face value, was genuine and there was no attempt to evade stamp duty. I understand the transfer of the vehicle to the new company name was effected with no additional stamp duty paid.
Finally, on page 120, a complaint was received by the Northern Territory Parks and Wildlife Commission regarding the location of the herbarium and the use of Naphthalene. The herbarium moved into temporary premises for a period of six months in 2002, while its present place of residence was being refitted. The herbarium has since vacated temporary premises. No legal action was taken over the complaint and the issue was closed. With regard to the herbarium, I opened the herbarium in Palmerston and I tell you, it smells of Naphthalene.
Dr BURNS (Essential Services): Madam Speaker, I welcome the opportunity to speak on the Ombudsman’s report, particularly in relation of PowerWater. In his 2001-02 Annual Report, the Northern Territory Ombudsman has made special mention of the good relationship that exists between his agencies and the Power and Water Corporation. We all have electricity, we all pay power bills and I know that there are tens of thousands of customers of PowerWater throughout the Territory. Given the nature of their business, both in the towns, the urban centres, the rural centres, and the remote communities, there is a whole range of customers using PowerWater services. So, it is with some pride that I note in the Ombudsman’s report that the level of complaint against PowerWater is very small.
As someone who has dealt with the public myself and who knows that it can be very difficult, particularly if you are dealing in money and services, it is a real credit to PowerWater. PowerWater constantly refines its complaints handling procedures, as a result of both direct customer feedback and consultation with the Northern Territory Ombudsman.
Many of the matters referred to the Ombudsman are resolved between agencies without the issue proceeding to a formal complaint. PowerWater has developed a ‘one point of contact’ concept within PowerWater where the information is received from the Ombudsman, the matter is investigated, and then a coordinated response is sent, regardless of the work area affected. PowerWater has also enhanced its customer information system to allow its call contact officers to record and then report on all complaints received. The collection and use of this information is important in assisting PowerWater to monitor and constantly refine its high standard of service delivery to customers.
In his report, the NT Ombudsman provided four examples of complaints relating to PowerWater. One complaint was in relation to a PowerWater officer’s attitude to a customer who inquired about a high water account. The Ombudsman found that the customer had not been treated badly by the PowerWater officer, and that PowerWater had negotiated fairly with the customer to resolve the matter.
Another matter related to the listing of a customer with a credit reporting agency due to an outstanding debt. Due to the age of the debt, being excessive, and the time taken by PowerWater to try to recover the debt, the Ombudsman recommended that PowerWater negotiate an agreed amount to be paid with the customer. This was done and both the customer and the Ombudsman were satisfied with the result. In his report, the Ombudsman summed up by stating:
As I did last year, I wish to acknowledge some of those agencies which have demonstrated a willingness to
being responsive to complaints and to work with my staff in the resolution of complaints. I am particularly
pleased to again acknowledge the work and cooperation of the staff of PowerWater in regard to complaints
made to my office. PowerWater has continued to demonstrate its willingness to negotiate reasonable and
fair outcomes in regard to the merits of individual cases.
Madam Acting Deputy Speaker, that is a fantastic wrap and I need say no more.
Motion agreed to; paper noted.
MOTION
Note paper – Treasurer’s Annual Financial Report 2001-02
Continued from 28 November 2002.
Mr REED (Katherine): Madam Acting Deputy Speaker, I take this opportunity to make some comments in relation to the Treasurer’s Annual Financial Report, TAFR. It is a shame that so much time has elapsed between it being tabled and the debate coming up, because it is important to consider the contemporaneous circumstances that relate to debates of this kind, and the ability to do that at a timely interval.
Mr Stirling: You could have debated it on the day. You chose not to.
Mr REED: Well, we did not debate it today and it was because of your program that we did not …
Mr Stirling: No, at the time it was tabled, you could have debated it.
Mr REED: … and from that point of view, we are debating it now. The reason for that, of course, is that these sorts of reports do get overtaken by events. One of the events that has to some extent taken over this is the mid-year report that was tabled only last week by the Treasurer - under duress I might say. For the Treasurer to make the cute remark that this report, the TAFR, could have been debated at the time it was tabled is vulgar in the extreme in that, to make the suggestion that a report of this size and complexity be immediately debated once he drops it on the Table is nonsensical.
Mr Stirling: You did not even used to drop them on the Table.
Mr REED: I pick up that interjection, Madam Acting Deputy Speaker. It is a requirement to drop them on the Table.
Mr Stirling: You deemed them. You never stood and delivered a tabling statement.
Mr REED: That interjection, too, is wrong. They were tabled. They were tabled in the sense of a tabling report, and they were fully debated in this House. The current Treasurer can try to make whatever he may of what he seems to remember of what occurred in the past, but that is not the case. In any event, for him to suggest – and he is only just introducing those red herrings because he is embarrassed by the fact that we are discussing it at this date and he has made the ridiculous statement that it should have been discussed the immediate moment it was tabled. It is ridiculous to suggest that could be the case.
I will not pursue too much, or little more, in this report. It has been overtaken by the mid-year report which provides more contemporary information of where the current budget stands and the issues that flow from that, particularly in relation to the economy and the problems that the small and medium business community are experiencing across the Northern Territory. From that point of view, it is much more appropriate that I devote more time to the mid-year report this evening - which comes up immediately after this debate - rather than dwelling on something that is dated and does not pick up the issues that we believe should be picked up in the current circumstances facing the Territory.
The Treasurer should bear in mind the timeliness of these debates and try to keep them as close to the tabling of the document as possible so that the ensuing debate is both topical in what is being debated, and relevant to the time, rather than us debating something that is some months old and superseded by subsequent reports.
Mr STIRLING (Treasurer): Madam Acting Deputy Speaker, the fact is the opportunity was there. As a former Treasurer, he could have put it across pretty quickly. He should take a leaf out of the member for Drysdale; he tells this parliament that he can read tables …
Dr Burns: No! He said the member for Katherine can read tables!
Mr STIRLING: Oh, yes! He said the member for Katherine could read tables in nanoseconds and get a handle on the figures. What is wrong with him? Since he is the former failed Treasurer, has that ability to read tables in nanoseconds disappeared since being on the opposition benches? It is obviously an ability he had when he was Treasurer.
He does not want to spend any time speaking about this, because the Treasurer’s Annual Financial Report shows the economic management skills of this government and puts them up in stark contrast to that of our predecessors, and the ability of the former Treasurer. When we came to government and were told within days by the former Under Treasurer that the budget situation was unsustainable - having been told only weeks earlier that it was headed for a $12m deficit - the final working through at that and the November 2001 mini-budget was that we were headed for a deficit of around $126m. We turned that around to a deficit of $83m. That is an improvement of $43m between the November 2001 mini-budget and the end of the financial year. That is something that this government takes great pride in because that is $43m less that this and future generations of Territorians have to find to pay off. That stands in stark contrast to the result for 2000-01 which, on the same basis, was a deficit of $275m, having told Territorians that the deficit for that year would be $45m.
We stand by our record. I see my job as Treasurer, working with the Chief Minister and my ministerial colleagues to set the conducive climate for business, for investment, for development into the future. However, part of setting that climate has to be proof of the government’s credentials in economic ability and fiscal responsibility. It is something that successive Country Liberal Party governments never understood. They threw the book out when it came to fiscal discipline and responsibility - no effort at all at restraint, with considerable overruns on those last budgets for those years that they were in government.
Everyone looks at that bottom figure at the end of year: what did the government come in; what did the government say it was going to do; what did it come in at? We thought we were going to be headed down for a minus $126m. We got that down to a minus $83m. We stand by that. We are on track this financial year to come in at the given deficit level and, again, that will have been two financial years in which the government has either improved its bottom line or at least held its bottom line, unlike our predecessors.
In relation to the former Treasurer’s comments about the timeliness of debate, I take into consideration the fact that these reports do date. He certainly had the mid-year report off the web before I knew it was up there. He was saying that that was one event that overtook the relevance, I guess, and the timeliness of the Treasurer’s Annual Financial Report. I take that into account. However, many things happen in Treasury. There are many reports, virtually daily, of different ABS and a whole range of reports that come out, all of which, of course, tend to date reports released earlier. That can hardly be the fault of either myself as Treasurer, or government. Perhaps we will look in future at if we table these types of reports, that we do get them back within the next day or so for debate.
Motion agreed to; paper noted.
MOTION
Note Paper - Treasurer’s Mid-Year Report 2002-03
Note Paper - Treasurer’s Mid-Year Report 2002-03
Continued from 20 February 2003.
Mr REED (Katherine): Madam Acting Deputy Speaker, this report has some very important information for Territorians. It is one that I have taken the opportunity to extend that information to them so that they are informed in relation to the current situation and the number of very important areas that impact on both employment and the economy. I make the point, though, before I get into those details, that the Treasurer, on the last day of sittings last year, tabled the Treasurer’s Quarterly Financial Report. He tabled it at a time when there was no opportunity for debate, and at a time when it was most convenient for him that it could be concealed amongst the pre-Christmas happiness and conviviality that was extended at the time, and that it might not be noticed.
However, of course, these things do come home to roost, and they have come home to roost in the form of his mid-year report.
That started very early in that it was released before he knew it was released. It was demonstrated in the questions I asked at Question Time on Tuesday last week that, notwithstanding that this is the Treasurer’s Mid-Year Report, he had no idea what was in it. He was embarrassed to the extent that, on the television news of that evening, he said: ‘It was going to be released tomorrow, and I was going to study it tonight’. Well, this was a report that the Treasurer had to write. This is his report, that he should have been fully across, fully aware of the detail and, in particular, those more important items on which he was questioned. I demonstrated the lack of awareness that the Treasurer had in relation to this by the fact that, on one table there was an error which I pointed out to him. In Question Time last Tuesday week, he described that as ‘a rounding up’ …
Mr Stirling: No, you did not. You are talking about two different things.
Mr REED: Well, it was a rounding up of $95m - that was the rounding up. I am not talking about two different things. You have a look at the Hansard. It was a rounding up of $95m; that was the extent of the error. There was hastily prepared overnight an erratum which accompanied the tabling of the document the following day. That the document was tabled the following day was purely accidental because, if we had not discovered the report on the Internet the previous day, I suspect the Treasurer would have tabled the mid-year report about now, so that he could have slipped out of the Chamber tonight with the report on the Table and no opportunity for the members of this House to apply any scrutiny to it. That is the way this government and this Treasurer operate. We are now becoming alert to the way they operate, and will keep a closer eye out in the future. Although I hope even this incompetent Treasurer has the ability to recognise that he should not be placing things on the Internet prior to actually reading the document that was written for him – that, in fact, he should have written, that he was responsible for.
I want to pick up on a few particular items which are crucial to the Northern Territory. I hope that some of the members of the PAC, and the former PAC, take note of some of these issues. I want to start with the population estimates and the statement in the mid-year report that, in the Territory:
- … have recently been revised downward in terms of population from the 2002-03 budget forecast, due to
higher estimates of interstate migration from the Territory. This has resulted in a $6m reduction in the
GST revenue.
That $6m reduction, and those reductions that will follow which will total $51m or thereabouts, as shown in the Treasurer’s document, are entirely of the Treasurer’s and the government’s making. I will demonstrate why. I take you back to the budget papers 2002-03, Budget Paper No 2, page 9:
- In 2002-03, the Territory has not followed the Commonwealth estimates of GST revenue and Budget
Balancing Assistance.
Not followed:
The Commonwealth has estimated that the Territory’s population will continue to grow at 0.7%, however,
the Territory estimates that its population will grow at the faster rate of 1.3% in 2002-03. The Commonwealth
has assumed that the same factors that affected population growth in 2001-02 will affect population growth
in 2002-03, which is clearly not the case.
That is to say, you were given by the Commonwealth the population growth estimates at 0.7% on which to base your GST income for this budget. However, you chose - and you have stated in your budget documents of last year - that the Territory:
- … has not followed the Commonwealth estimates.
You chose to inflate your population growth estimates to make your budget look better and to project the picture to Territorians that things were rosy; that the new government was doing all sorts of wondrous things, and the population growth was going to be 1.3%. In fact, worse than that, you factored into your budget growth rates, in the GST intake that you would receive from the Commonwealth, on that false premise.
I remind members of the PAC that this was the very accusation that you cast against me - the very same accusation that you cast against me. Yet, in this House, during the course of these sittings over the last six days, you were happy to stand up and blame everyone else - any name that came into your head at the time - that the population decline was their fault. Because you were going to have a population decline, you had the temerity, the hide, and took the vulgar stance of blaming the Commonwealth for reducing your GST returns from the collections from that tax nationally, on the Commonwealth. Indeed, the Treasurer went to the extent that he said in this House that he is going down to talk to the Treasurer and is going to say: ‘You got the population assessment of the Northern Territory wrong and I want more money’. Well, I will tell you what the federal Treasurer is going to say: ‘Mr Stirling, I refer to your budget document, page 9, Budget Paper No 2, wherein you rejected the advice from the Commonwealth of a 0.7% population growth and said that you would take a figure of 1.3% and you factored that into your budget. So, Mr Stirling, this problem that you face is, indeed, of your making’.
That is where this government has placed itself. That is the position that this government is now blaming other people for when, in fact, it was of your own making.
The $6m reduction that you will face in Commonwealth disbursements of GST to the Territory next year is your problem. Do not blame the Commonwealth, do not blame anyone else because here it is, in your Budget Paper No 2, page 9: your decision, your action, now wear it. At least have the guts to get up and say: ‘I am sorry, it is not the Commonwealth’s fault’. Extend an apology to them when you are responding in this debate, Treasurer, and be a man and a Treasurer enough to accept that this is of your making. Further, I want you to recognise that it goes beyond that, in that the comments that you have in your mid-year report regarding a $6m reduction in GST disbursements immediately, that flow-on then to $19m in 2005-06 and an overall reduction of $51m over the forward estimates period, is of your making. The problem just does not fall over at the end of the current financial year; it will carry through to the end of that period, 2005-06.
You have brought yourselves a problem for the coming four years. You have factored into your budget an error to the extent of up to $51m over the next four years, and it ill behoves you to blame someone else. Well might you all sit there in silence, because you all should be ashamed of yourselves, particularly the Treasurer.
That is most appropriate that the Treasurer should look very busy and scribbling all sorts of sweet nothings on a bit of paper, because it is he and the Treasurer before him, Treasurer Martin, the member for Fannie Bay, who quickly realised that these sorts of problems were going to emerge in her budget, that being astute as she is - and she is in many ways politically very astute - she was astute enough to recognise that this budget was going to come around and bite. We have a Chief Minister in the current government who takes the grandstand out the front and does all the nice announcements but, when it comes to the difficult jobs, where is the Chief Minister? A bit busy at the moment; having a cup of tea. Cannot find her - changing her dress; doing whatever she is doing. But in taking the blame, nowhere to be seen; nowhere will you find this Chief Minister.
She very quickly realised that this was a budget that she did not want to have anything to do with in the future and, of course, following the budget estimates process, she quickly realised also that she did not handle it very well, and that it was something to flick pass to someone else. The closest person was the Deputy Chief Minister. Well Treasurer, you have to wear it. You will have to wear the $6m loss this year, you will have to wear the escalation to the $19m loss, and you will have to wear the further escalation to the $51m loss in 2005-06 because they have all been of your making. We will remind you of them at every opportunity over the coming number of years and budgets.
Having made that point, I want to turn to the vexing and often raised question of debt. This also may be of some great interest to members of the PAC and former members of the PAC. I ask them to turn in mid-year report, if they are sufficiently interested, to page 6, General Government Sector. If you look under the heading ‘Liabilities’ and the line ‘borrowing’, you will find that the budget 2002-03 for borrowings was $1 598 557. You will find, however, that the revised budget for borrowings for this financial year is $1 703 377. An increase in borrowings - that is, an increase in debt - not previously programmed of $105m in the last six months. What is going on here? All is not sweetness and light.
There are some very serious questions to be answered here by this government. Not only have you imposed on us, over a period extending out to 2006, a $51m loss in GST disbursements from the Commonwealth, but we now find that this government, formerly wearing a halo, has blown its budget by $105m by borrowing an additional extent to that amount this year. You have to come clean; this is pretty serious stuff. It is not the sort of thing that you are going to be able to cover up for any longer. It is a very illuminating report, this Treasurer’s Mid-Year Report 2002-03. It is a very sobering way to close this session of parliament, at this hour on the last day. No wonder you left this debate to the very last minute.
I turn now to the actual budget allocations for departments; in particular those departments that are essential in services they provide to Territorians or the service and support they provide to industry. I will start with the Department of Education. The budget was $504.667m and it has been revised downwards to $500.53m. The Treasurer tabled the reasons for this last week, which disclosed that last year they spent some of the money they said they were going to spend this year, so they have to make a correction. That was the very practice that you tried to hang me for. Where are your scruples? Where is your honesty? Where is your integrity? Where is your ability to talk factually about these matters? This is an absolute outrage. I want a further explanation from the Treasurer in relation to those matters. How can you carry over expenditure and cook the books this year to make it look okay for both last year and this year? Not acceptable, Treasurer.
I ask you then to revisit the question of the Department of Health and Community Services, because you gave us some rhubarb and spaghetti mixture answer when I broached this question last week in that the budget was $526.729m, the revised budget was $527.169m - a difference of some million – when, at the same time you told us that the Health budget had been increased by $15m. When I asked you that question, you said: ‘Treasurer’s Advance’. Well, Treasurer’s Advance, minister - as you have probably checked since I asked you that question - is the pool of money from which increases in allocations to departments is sourced. Once Cabinet has made the decision to increase an allocation to a department, it is transferred to that agency and should be shown on the books. There is no reason for not showing this on the books, because the decision for the $15m that you said was going to be transferred to Health, was made on 11 or 12 February 2003. It was made on the day that you said the inclusion of items in this mid-ear report was completed, and I quote from your document:
- At the time of the review of the budget and forward estimates, all known events were taken into account.
One of those known events was a $15m increase to the Heath budget. One of two things has happened: you have not increased the Health budget and you have misled Territorians or, alternatively - you may well groan, minister, you may well groan - the $15m is a promise: ‘The cheque is in the mail. I am from the government; I am here to help you’. The Department of Health and Community Services has been told: ‘Look, you have $15m, but we are keeping it in Treasurer’s Advance. If you really need it, we will leak a $10 note out to you from time to time, because we do not trust you. We do not trust you with the extra $15m. We have already given you over $100m this financial year and we cannot see any benefits from it’. I suspect this is what has happened.
On the one hand, you have told Territorians - to make it look good, much as you did when you increased, falsely, the population estimates of growth for this year. On the one hand you have told Territorians that the Health budget has been increased by $15m but, on the other, you have said to Health: ‘We do not trust you. It is staying in the Treasurer’s Advance, and if we really need to we will give it to you’.
There can be no other answer, because the decision and the announcement by the minister for Health, in relation to the $15m - well may you ask her, Treasurer, how this all worked. Well may you ask her. It is very timely that she comes into the Chamber. The decision and the announcement by the minister for Health for the $15m was made on the day that you closed off the compilation of information to go in your mid-year report. You can come up with all sorts of smokes and mirrors, and diversionary arguments - as you did last week, which have now proved to be hollow - but the fact is, there ain’t no $15m increase between $526m and $527m. That is what is in the Health budget in your report.
Worse, between the budget of $526m you brought down this year for Health, if you go to your forward estimates for next year, the increase is only up to $533m. So, even if he says it is in Treasurer’s Advance, that proves that they are not going to get it, because it is not even shown in the forward estimates. Not until year 2004-05 do the forward estimates for the department of Health increase to an amount that would allow the Treasurer to say they have received the extra $545m. But he has a dilemma there because, if he uses that excuse, it is clear that the Health budget is not going to increase over the next four years.
Therefore, Treasurer, we want a very detailed and concise explanation about that. We want the full information. We do not want your grab of figures that have been rounded up, and then find that the rounding up is $95m. We do not want the excuse that it is Treasurer’s Advance, when we know that it is not or, indeed, if it is a sleight of hand and kept in Treasurer’s Advance, we know it is not an increase to the Health budget.
I move now to the budget for the Northern Territory Tourist Commission, which gets even more intriguing, because we have had, over the last few days, a very sensitive Minister for Tourism saying that there is no cut for the tourism budget.
Members: Absolutely.
Mr REED: Well, members who have studied these figures will be alert to the fact that the Tourist Commission budget, as promised in the budget that we passed last September, was $28.164m. It has since reduced by $278 000 to $27.886m. That is a lesser figure, and it defies anyone’s commonsense to be able to say that that is not a cut.
We move then on to 2003-04 forward estimates, where that figure is further reduced to $26.311m, a further reduction in the Tourist Commission budget. Indeed, I inform honourable members that that figure in the Tourist Commission budget is lower than the amount of money that they received in their budget in 2001. This is at a time when the tourism industry is suffering a greater haemorrhage than it ever has in any other part of its history; when it needs more support and more promotion than ever it had. Yet, we have not only a cut this financial year between when the budget …
Dr Burns: There is no cut to recurrent expenditure.
Mr REED: I am sorry, Madam Speaker, but I respond to the interjection by the minister. He will never convince the tourism industry that $28.164m is the same as $27.886m, and is not a cut. It just will not wash, I am sorry.
He can come up with any excuse that he wants: another department is going to pay for this and another department is going to pay for that. Let us, theoretically, look at the position if another department was going to pay for the Virgin Blue services into Darwin. Theoretically, let us look at that. Even if that were the case and you added that amount of money to the Tourist Commission budget next year, you are still behind the eight ball, china - you are still behind the eight ball. You are still behind the eight ball on two counts: (1) it is a low amount of money; and (2) there is no growth or allowance for CPI. That is to say, the Tourist Commission, in supporting our tourism industry which employs more people than anyone else in the Northern Territory, is expected, in these very difficult times, to do more with a smaller budget and without any allowance for CPI.
If the minister had any knowledge of the tourism industry, he would know that the escalation in the cost of promotions - be it on television, in the print media, or on radio - is higher by far than the standard CPI. He should know, if he has been in touch with his department and he is across his job, that even CPI components added to the Tourist Commission budget are not sufficient to compensate on an annual basis for the increase in promotional charges. Further, I point out that, since he has been minister, the Australian currency exchange rate has gone up from about 57 in the US dollar to over 60 today. That rise of 3-plus, reduces the ability of the Tourist Commission in our international markets. In our offices in London which service Scandinavia and other parts; our office in Frankfurt; our office and operations in the US, are now doing less with the money that they have provided in this budget that we are discussing. They are doing less, simply because of the exchange rate variations. The minister, I doubt, is even aware of that complexity of the marketing that the Tourist Commission does.
Yet, we have seen in this mid-year report a reduction in the marketing which he tries to palm off on: ‘Oh, that is money that is being paid by someone else for Virgin Blue Airlines’. Well, minister, if you want to compare apples with apples - and it does not matter what they are paying for; it does not matter if some other department is paying for a case of apples, or if they are paying for Virgin Blue Airlines to come to Darwin - the bottom line is this: that in 2001 the Tourist Commission’s budget was $26.330m-odd. Next year, it is going to be $26.311m less than it was two years ago. And you stand here in this House through the course of this sittings and tell us that you are concerned about the tourism industry and that the government is doing everything it can for it!
Dr Burns: There has been no cut to recurrent expenditure.
Mr REED: Well, show me where it is, because no one believes the answer …
Dr Burns: I explained it yesterday, have a look at Hansard.
Mr REED: No one believes let alone understands. I have faxed his answer to many members of the tourism industry and they are completely lost. They have no idea where he is coming from. It was a garbled and confused message that he sent; it added up to nothing. It certainly did not add up to give them any confidence that $26m is more than $28m. And that is what they look at because this, I inform the honourable minister, the figures in this document on page 10, is what the Tourist Commission has to spend. All this nonsense that you have been going on with does not give them any comfort because they know what the purposes of this paper are, and they know that this is how much the Tourism Commission has to spend.
So there we have it; it is a pretty sorry picture. It is a matter of great concern, not just to me, but to the Territory business community. I have met today with a number of people from the business community here in Darwin and they are expressing a very different story than we have heard from the Chief Minister, the business minister, the Treasurer and other ministers this sittings. As I tried to tell you yesterday, they are very worried about where they are going to get the money to pay their salaries for their staff over the next few weeks. They are worried about surviving for the big projects if and when they arrive, and the opposition hopes that they arrive. One lady, in particular, said to me: ‘Why don’t ministers in that government walk down the mall and have a look at the empty shops?’ That is the very message I gave you yesterday. If you do not have time to jump in a car and drive to Alice Springs next time you go, why don’t you just take half an hour then and walk down the mall and around Cavenagh Street and have a look at the empty shops? That might shake you into the world of reality regarding where you are.
So Treasurer, I have given you a bit to chew on in relation to my comments. I do not want any common abuse, because that does not get us anywhere. I do not want you to adopt a position when you stand of shooting the messenger and just criticising me or members of the opposition. I want you to face fairly the facts I have put to you. You do not have to agree with them, but I ask you to have the integrity and the commitment to Territorians to at least answer the questions.
Mr HENDERSON (Business, Industry and Resource Development): Madam Acting Deputy Speaker, I was not going to speak in this debate tonight but I really cannot leave the member for Katherine’s comments unchallenged in this parliament, and particularly …
Mr Reed: Yes, that is your only defence, see. That is your problem.
Mr HENDERSON: Methinks that the member for Katherine protesteth a bit too much. Talk about facts …
Mr Reed: They are not protests. These are about your documents.
Mr HENDERSON: Well, there are facts and there are interpretations, and there are a lot of interpretations that the member for Katherine has tried to weave assertions around. He has used a lot of emotive language here in the debate tonight, and talks about facts. Well, the member for Katherine really does not have a very good track record on the issue of facts, and I will get to that a bit later in my comments.
What we are debating here tonight is another initiative of this new Labor government in the Northern Territory. Another initiative in terms of open, transparent and accountable government. For the first time, this House has had tabled before it significant financial documents of a mid-year report into the budget. This was an initiative that came out of initially, the Percy Allan review into the parlous state of the budget and the deception that we inherited from the former Treasurer, the current member for Katherine, the then member for Katherine.
The result of that Percy Allan review was many things: a mini-budget, but also the introduction of the Fiscal Integrity and Transparency Act. There were many allegations made about whether the mid-year review was accurate or not, but this is where the member for Katherine is back in the past. He still seems to think that the Treasurer’s fingerprints are all over this document, and that the Treasurer can somehow work numbers and figures into this document to suit his purpose and the politics surrounding the budget of the day.
What the member for Katherine still fails to grasp is that, under the Fiscal Integrity and Transparency Act, the document that has been tabled before this parliament is actually a Treasury document …
Mr Reed: No, it is not.
Mr HENDERSON: It is actually a Treasury document, in the same way that the budget is now a Treasury document. There is a requirement under the Fiscal Integrity and Transparency Act …
Mr Reed: The act requires the Treasurer to prepare the report – read page 1.
Mr HENDERSON: Under the act, there is a requirement to table a mid-year review for the budget, how we are tracking against the initial budget, and what the forecasts are in terms of the budget outcomes towards the end of the financial year.
This is a significant improvement regarding transparency, something that members opposite never, never did. All we had were quarterly, bottom line statements that were deemed to be tabled. Sometimes they would appear and sometimes they would not appear - no debate in the parliament about them. However, we now have a significant review that is put on the Table for debate and discussion. There have been many assertions and allegations made.
If we go first to the issue about the ABS statistics of population and the revision of those statistics in this mid-year report, again, if it was not for the fact that this document was here and the revisions have been calculated we would not be having this debate. The initial budget papers that projected the population increase of whatever it was - I do not have the details before me - were prepared by Treasury with the best information that they had at the time. Six months on, ABS have released revised numbers. We do not have a crystal ball that we can wrap our hands around and say: ‘I wonder what is going to happen to population in the next six months: is it going to go up, or is it going to go down? If so, up by how much or down by how much? I will pick a number’.
Treasury has to rely on the figures that it receives from the ABS, not some mythical crystal ball that the member for Katherine believes that Treasury should have in order to amend their population forecasts throughout the year. The reason for the revision downwards in the ABS statistics is nothing to do with the Treasurer somehow putting into the original 2002-03 budget figures an inflated set of population growth forecasts to exaggerate the amount of additional Commonwealth revenue that would flow from that. That is the way his contorted mind works, because that is the sort of trickery that he used to get up to when he was Treasurer. Under the Fiscal Integrity and Transparency Act, the budget was prepared by Treasury on the statistics based on ABS figures and forecasts at the time.
The fact that they have been revised downwards now is certainly something that nobody in this House is pleased to see. However, to try to say that, somehow, the original budget figure in the budget books was exaggerated by the Treasurer to exaggerate the forward estimates of revenue from the Commonwealth to make the budget look better, is fanciful flight of thought from the member for Katherine that really is not there. We have had the debate about the ABS statistics and the problems with them. They were acknowledged by members opposite when they were in government regarding the accuracy of those statistics. I am sure if we were to trawl through the Parliamentary Record, we could probably find the member for Katherine, when he stood on this side of the House, talking about ABS and the problems with their statistics and the impact that it had on Commonwealth revenues.
To try to contort that, somehow, we have over-estimated those statistics to inflate Commonwealth revenues to make the budget look good, and now there has been a revised forecast we have been found out, really does beggar belief. Then he went on and stated that, somehow - and this was before he got into debt and tourism and retail and what have you - the Treasurer should say ‘sorry’. ‘He should apologise’, he said. ‘He should be a man and, as a Treasurer, should apologise to the House for this concocted fanciful theory that somehow the Treasurer had deliberately over-estimated the population statistics in the budget’. Well, it just will not wash – it just will not wash.
When we talk about the integrity of the Treasurer, the initial budget and the mid-year review, if I had the form of the member of Katherine and former Treasurer, I would not want to be going back and revisiting that ground and talking about integrity and saying that the Treasurer should say ‘sorry’. It really is very dangerous ground for the member for Katherine to go back to, because let us revisit a little bit of history here. He brought the issue of integrity into this debate. It was he who brought the issue of integrity into the debate, and called on the member for Nhulunbuy, the Treasurer, to say sorry and apologise, both as a man and as the Treasurer. Well, the challenge goes back to him. He was the one who issued the challenge. Well, the challenge goes back to him. Let us look at the form of the member for Katherine when he was Treasurer.
The last four years that the member for Katherine presided over Treasury, the annual deficit averaged $70m, peaking at $114m in 2001. During that period, we had expenditure rising. Over 1998-99 to 2001, expenditure rose $202m - that is 10.5% - yet revenue went up by only $103m - 5.4%. If we look at those budget figures over that time, given the initial estimated outcome for the financial year when the budget papers were put down, and then look at that in terms of the actual outcome, we can see that, consistently over those four budgets, unrealistic estimates were provided: under-estimated final consumption expenditure by around about, on average, $70m a year. These numbers were deliberately under-estimated in the original budget figures to make the budget look better than it was actually going to be.
The adoption of those low forecasts - and he was caught out in this - was not made by Treasury, but was made by government - government adopted those low forecasts. We had a Public Accounts Committee inquiry looking into that particular allegation. We all remember, I certainly remember, the second day in this House, with all the excitement of coming to government, it really was a very exciting time. However, to be called together by the Chief Minister two days in - we had done so much work preparing a plan for government and having that costed against the budget that was handed down in this place not eight weeks before, with a forecast outcome for 2001-02 financial year of $14m. That was what was in the budget paper …
Mr Stirling: $12m.
Mr HENDERSON: … presented to the people of the Territory, tabled in this House by the member for Katherine of - sorry, the Treasurer reminds me - $12m. That was the estimated outcome for the financial years. Two days into government, eight weeks after those budget papers had been tabled we, as new ministers in government, were called in by the Chief Minister, who had a face as white as a sheet, and was pretty angry - and it is not often you see the Chief Minister angry. She advised us that the Under Treasurer had been to see her that day and had stated that the estimated outcome for the 2001-02 budgets was not $12m; in fact, it was more like over a $100m. Eight weeks after that budget was provided to the people of the Northern Territory - so, $100m in eight weeks.
Of course, all of the plans that we had for government really did go on a very major skid. Then, obviously, the question had to be asked: ‘How on earth did this happen? How could a forecast for the deficit of $12m turn into over $100m in just eight weeks?’. From then on, the picture just got murkier and murkier; the deceit and the deception of the budget practices of the previous government slowly came to light. A letter was provided to the Health minister from the CEO of the Health department at the time that stated, very clearly, that he had been instructed by his minister to under-estimate the actual expenditure for the Health budget that year to make the Health budget and the additional allocation put in, at least look like it was matching inflation - a letter from the CEO of the department.
Then we had the Public Accounts Committee, which certainly nailed the process regarding what was happening. I have read this passage into Hansard before, and I am going to do it again and again for the life of this parliament whenever I get the opportunity - to go to the rank deception of the member for Katherine at the time. This is evidence provided by Mr Ken Clarke, the Under Treasurer at the time, to the Public Accounts Committee - a committee where every person who comes before it has to swear an oath and is in contempt of parliament if they give false and misleading evidence. I will go through the passage again. The member for Katherine has the absolute temerity and hide to call on my colleague, the member for Nhulunbuy, to apologise. I will go to the question from the Chairman:
- In that you detail a conversation that you had with the Treasurer, Mr Reed. It occurred at the height of the
budget finalisation process …
Just before the election:
- …and, basically, just paraphrasing what Mr Reed has or what you have written there - in your written submission,
you said that in May 2001, Mr Reed, as Treasurer, became concerned about the lack of growth …
Because we were tracking at 0% growth in the economy at that particular point in time:
- … that Mr Reed, as Treasurer, became concerned about the lack of growth in the 2001-02 budget numbers for
Health, Education and Police. Is that correct?
Mr Clarke, the Under Treasurer at the time:
- Lack of growth. He was concerned about the comparison between one year and the next. Yes, I guess that
is correct.
- Mr Chairman: Yes. And then subsequent to that meeting, and at Mr Reed’s direction - ultimately at his
direction - the estimated expenditures for the 2000-01 year for Health, Education and Police that were
originally sort of circulated in May or March were reduced, so that that growth could be apparent?
- Mr Clarke: So that growth could be apparent. I suppose that’s technically correct, yes.
- Mr Chairman: So I guess, at the bottom of it, my question is: without Mr Reed’s intervention would those
budget estimate figures have gone forward into the budget papers unchanged?
Mr Clarke: Yes, they would ….
Without Mr Reed’s intervention, those budget figures would have gone into the budget papers unchanged. ‘Yes, they would’. It then goes on.
- Mr Chairman: Okay. Thanks, Mr Clarke. I’ve got a couple of questions following on from this, about …
Dr Lim trying to be helpful:
- Can I just follow on the question you just asked? Would a Treasurer always intervene on Treasury’s figures
on any budget, in the sense that he gives directions to Treasury?
Would a Treasurer always intervene?
- Mr Clarke: Oh, no, no. I mean, this was a particular concern to him and this is what he said to me, it was a
particular concern. I interpreted it as being because it was an election year, although he didn’t actually say
that and we’d had the same issue for a number of years …
So, for the member for Katherine to come in here and make broad, unsubstantiated allegations attesting to the facts and alleging that my colleague, the Treasurer, the member for Nhulunbuy, has deliberately under-estimated the ABS population statistics and forecasts in the budget papers, to artificially inflate a projected Commonwealth revenue - well, he has to provide evidence of that because the evidence that is in the Public Accounts Committee report from the Under Treasurer himself certainly has banged up the member for Katherine. He will never be Treasurer in the Northern Territory again. The people of the Northern Territory will never entrust him with the books for the Northern Territory’s accounts again.
And he has the temerity to call on my colleague to apologise. He has never apologised. He has been caught out red-handed, and the evidence is all there in those transcripts. He has never been man enough - never been man enough - to come in to this House and to apologise to the people of the Northern Territory …
Members interjecting.
Madam ACTING DEPUTY SPEAKER: Members, order!
Mr HENDERSON: … and until the day that he is man enough to apologise to the people of the Northern Territory, the people of the Northern Territory will never take him seriously.
Therefore, in terms of this government’s transparency and accountability to the Northern Territory, we will be judged on our actions. We will also be judged by bringing this budget back under control. It was out of control when they left office. They have absolutely no credibility in any budget debate. They falsified budget documents to the people of the Northern Territory, they left a legacy of an unsustainable budget, and we are doing everything we can as a responsible government to bring that budget back under control, to provide the people of the Northern Territory with the accountability that they deserve. Let us hope that the member for Katherine never gets his paws on the Treasurer’s position again.
Mr Reed: Let’s hope the Treasurer answers the questions, that is all he has to do.
Madam ACTING DEPUTY SPEAKER: Order!
Mr STIRLING (Treasurer): Madam Acting Deputy Speaker, it is a bit rich at this hour, late and on the last night of sittings, to get a lecture on morals from the member for Katherine. The king of deceit swans in here and gives this government, and me as Treasurer, a lecture on morals. He gets up here and demands to know the full explanation about what is estimated in the mid-year report. He never used to table one as Treasurer, let alone put a document together with the depth of explanation that is contained in here. Never went near the Fiscal Integrity and Transparency Act - would not be game; would not be able to do what they did with the …
Mr Reed: Well, make it work! Make it work and answer the questions.
Mr STIRLING: … if they had a Fiscal Integrity and Transparency Act. You ask yourself how he – hide thicker than a crocodile skin, this bloke. The hide to come in here and give us a lecture about morals and integrity - the author himself of the $126m black hole. ‘Unsustainable,’ the former Under Treasurer said. That is the legacy you left Territorians and you stand here still proud of it.
However, the deceit continues just about every time he gets to his feet. He was talking about catching me out during Question Time last week and alerting me to the error that appeared on page 10, which I subsequently corrected with an addendum the next day. His question on the Tuesday related to page 7, in fact, not page 10. You never went near page 10, you were talking about …
Mr Reed: It is page 10.
Mr STIRLING: No, it was on page 3. You were talking about ‘the general government sector operating statement and the effect on the nett operating balance in the various revisions and adjustments made to the general government sector since the budget increased in deficit by $23.1m to $51.6m for the year’. One, he tried to use those figures to deceive Territorians to suggest that budget was blowing out when he was picking up the accrual figure. Of course, that was on page 3 as I have just pointed out. The correction that we brought in the next day, on page 10, was never pointed out by you …
Mr Reed: It was. It was.
Mr STIRLING: It was not, it was not. Your question went to page 3.
Mr Reed: No, that was another one. That was …
Members interjecting.
Mr STIRLING: It does not matter how many questions you asked, you never asked about page 10. You never brought page 10 to our attention. We had an addendum that night.
Mr Reed: I did! I did point it out to you; you might remember. The NT News said: ‘For the first time in his life, Syd Stirling has been silenced’. He could not follow his documents.
Mr STIRLING: It is too late on the last night to be getting this excited. However, I will go to some of the points that he raised. The 0.7% population growth included in the Commonwealth Treasury budget papers, and why didn’t we …
Mr Reed: No, your papers.
Mr STIRLING: Because they would have! And you know why they would have? Because they were losers! Business confidence was declining rapidly from 1999 down. It did not start to lift - and you want to go back to the Yellow Pages survey. You blokes were stung when we brought that in. You blokes were so stung when we brought that in and showed you, that you had to run the then Leader of the Opposition to the Privileges Committee. My God! They had to run the then Leader of the Opposition to Privileges Committee for having the temerity to show you guys what business confidence was doing, because it was plummeting all the way through from 1999 to the end of 2001 when it started to lift. They had no construction industry; they had murdered that. There was no one left in town with a job. Retail was on the nose; business confidence was plummeting. So, if the Commonwealth said: ‘Your population estimates are going to go down; you are only going to get 0.7% growth’, they would have been going back saying: ‘We think we are only going to get 0.2%’, because they knew they were on the nose, and that is how bad it was going.
Treasury stood by their 1.3% based on the long-term population trends of the Northern Territory. Any population estimate of projection is going to volatile, but it is going to be more volatile in a small jurisdiction where people come and go, where we have a high transient level. It can just as easily turn around as new projects come on stream. It is going to turn around when Phillips start the LNG plant. It is going to turn around when MIM get into their big project. It is going to turn around when Alcan get up and going.
That is the difference in attitude here. Losers! Knew they were on the nose, knew they were going downhill. If the Commonwealth had said 0.7% population growth, they would have shuddered and said: ‘I do not think we are going to manage that; things are too crook’. I wonder what they did with the money because not only did they destroy …
Mr Reed interjecting.
Mr HENDERSON: A point of order, Madam Speaker! The member for Katherine well knows that only one member can be on his feet in this House at any one time.
Madam SPEAKER: From what I walked into, I believe the behaviour has been outrageous on both sides. Could we have some decorum, please?
Mr STIRLING: Madam Speaker, I am just pointing out that Treasury stood by their 1.3% growth because we, as a government, as soon as we came in, from the mini-budget on, we stacked up the capital works. We stacked in a record level capital works in the 2003-03 years. We are brining on extra teachers, extra nurses, extra police. We are rebuilding those government services that they allowed to run down and helped to lead to the gloom and doom that they had trapped the Territory in. Health, Education, Law and Order. Why wouldn’t Treasury stand by their population estimate when they knew they had a government in us that was doing the right thing and putting people back into these valuable service delivery arms of government?
Health. Why isn’t the $15m in there? It is a simple fact of time. If the decision had been made and translated through in time before the 12th, the cut-off for the mid-year report, it would have been in there. The figures are shown based on a no-policy no-change basis.
Mr Reed: But it was; it was made on the 12th. Ask the lass behind you. She put a media release out on the day you took you document.
Mr STIRLING: Look, does he think: ‘Oh, the decision is made!’ I race down, I get a Woolies trolley, I race across to Treasury and say: ‘Chuck in $15m. No more! $15m!’ and I run off to Health House? The man has been Treasurer, I believe he knows it does not work like that. Then I run back and I grab the mid-year report and say: ‘Put the Woolies trolley back. Rewrite the books - $15m’.
There is a process, it takes a little time. He well understands it. Cabinet makes a decision, gets to Executive Council and it will come in here by way of a budget variation. It is just a question of timing. I can assure him – nave I might be – one of the first questions I asked Treasury when I went across there was: ‘Where do you keep it?’. They said: ‘Where do we keep what?’. I said: ‘The money. You must have a big bin here somewhere’. They said: ‘We don’t have any money. We don’t keep any money’.
He has been Treasurer, he understands these matters. However, he wants to be deceitful; he wants to get in here – and it is time he showed a bit of backbone himself and decided whether he is here for the long term and is going to serve the good voters of Katherine, or waste the time of the Assembly as he seems want to do.
The General Government Sector balance sheet in relation to the extra $105m was completely reviewed in the period since the budget was passed. That increase in debt is matched by an increase in equity, the value of the general government interest in the non-financial corporation sector, which has risen by $100m, approximately equal to the increase in borrowings.
Madam Speaker, I thank the Leader of Government Business and the Minister for Business, Industry and Resource Development for his positive and supportive comments in reminding Territorians and putting on the record the fine record that the former Treasurer left the Territory. Territorians are still breathing a sigh of relief that they have got rid of the CLP, because God knows what the debt levels would be now - but they would be going through the roof. I thank the member for Katherine for his misleading comments.
Motion agreed to; paper noted.
TABLED PAPER
Development Application Direction –
NT Portion 3951, Petrick Road, Alice Springs
Development Application Direction –
NT Portion 3951, Petrick Road, Alice Springs
Mr VATSKALIS (Lands and Planning): Madam Speaker, I table a direction, pursuant to section 85 of the Planning Act, in relation to the non-approval of any subdivision for portion 3951, Petrick Road, Alice Springs.
On 4 December 2002, I directed the Northern Territory Development Consent Authority to not approve any subdivision for NT portion 3951, Petrick Road, Alice Springs, which would create an allotment less than 2 ha in area. In accordance with section 85 of the Planning Act, I am required to table in this Legislative Assembly the following items: a summary of the development application to which the direction relates; the terms of the direction; and the reason for the direction.
Before I table the required information, I wish to note there is a legal doubt as to whether this needs to be tabled or not. The action I took was not directed to a specific development application, but to all possible applications which would be below 2 ha lots in size. However, because this is a very grey area, I have decided to table these.
TABLED PAPER
Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Ms SCRYMGOUR (Arafura): Madam Speaker, I lay on the Table the interim report of the Select Committee on Substance Abuse in the Community, Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse, dated February 2003.
MOTION
Print Paper - Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Print Paper - Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Ms SCRYMGOUR (Arafura): Madam Speaker, I move that the interim report of the Select Committee on Substance Abuse in the Community, Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse, dated February 2003 be printed.
Motion agreed to.
MOTION
Note Paper - Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Note Paper - Select Committee on Substance Abuse in the Community – Interim Report on Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse
Ms SCRYMGOUR (Arafura): Madam Speaker, I move that the Assembly take note of the interim report of the Select Committee on Substance Abuse in the Community, Issues of Alcohol Abuse, Cannabis Abuse and Inhalant Abuse, dated February 2003
The Legislative Assembly established this committee in September 2001. Its terms of reference are broad, requiring the committee to inquire into and report upon, with regard to all legal and illegal substances: community concerns; current trends in, and demographic details of, use and abuse; social and economic consequences with reference to the wellbeing of individuals and communities; and the demands placed on government and non-government services; available services to deal with the direct and indirect consequences of substance abuse; how accessibility and/or availability impact upon substance misuse; and the correlation between socioeconomic conditions and substance abuse. The terms of reference also require the committee to make recommendations in relation to policies and services to prevent and treat substance abuse.
In the early stages of its investigation, the committee decided that it should focus on three substances: alcohol, petrol, and cannabis. The reasons for these are evident. We have identified these as constituting the principle current substance abuse threats to community health and wellbeing in the Northern Territory. In fact, they are creating misery and mayhem for many Territory communities and individuals.
Given the fundamentally important status of Aboriginal people in the Territory’s history and contemporary demography, it is not surprising that it is in Aboriginal communities that abuse of alcohol, petrol and cannabis is inflicting the greatest damage. It is for this reason that, as an Aboriginal Territorian, a woman and a first-term parliamentarian, I have viewed my assumption of the role of Chairperson of the Select Committee on Substance Abuse in the Community as an undertaking of a particularly important and onerous responsibility. I say onerous because the problems the committee has to tackle are so substantial, and the concerns of Aboriginal women so imperfectly understood by governments in the past, that I feel on my shoulders the weight of unfulfillable hopes and expectations for swift and effective action. However, it is a responsibility which I, along with the other five members of the committee, have accepted and have approached with full appreciation of the gravity of the problems and commitment to address this situation.
This is far from the first parliamentary inquiry charged with investigating substance abuse issues and how they impact upon Australian communities. Over the past 30 years or so, there have been a number of inquiries and reports on drug and or other substance abuse, and some of these are noted in this report. In fact, there is an inquiry into substance abuse currently in train by the House of Representatives Standing Committee on Family and Community Affairs. That committee released a discussion paper in September 2001 entitled, ‘Where To Next?’, which gave a useful snapshot of substance abuse issues in Australian communities, including those in the Northern Territory, which that committee had visited at that time.
One earlier inquiry which is noteworthy in the Northern Territory context, is that undertaken by the Senate’s Select Committee on Volatile Substances Fumes in 1985. The then two Northern Territory Senators, Robertson and Kilgariff, were instrumental in its establishment and they were the Chair and Deputy Chair of the committee. That committee inquired and reported in two parts. In the first instance, it looked at urban volatile substance misuse. The second part of this inquiry involved extensive consultations with Northern Territory communities across the Top End, as well as in Central Australia.
The committee found that there are a number of elements which mitigated against petrol sniffing, including strong leadership, the total commitment of the whole community, persistence, and the availability of attractive alternate activities. In particular, it stressed the need for community involvement and strong families. Although only part-way through its community consultation program, this committee has also looked at petrol sniffing - its causes, and its possible cures. Members are keen to look more closely at legislative means for addressing petrol sniffing and will be exploring the recent initiatives by the South Australian government in this regard, provided that does not simply shift the problem to a matter to be dealt with solely by the police.
It is interesting that the 1985 inquiry referred to the breakdown of strong family and the community as a factor in petrol sniffing - a symptom of the broader social problems experienced by indigenous communities. This, I feel, is a common thread of alcohol abuse, and the growing problem of cannabis use also. There are a number of compelling social and economic reasons for the vulnerability of our Aboriginal communities to the abuse of these three substances. When I use the word, ‘abuse’, in connection with alcohol and cannabis, I am contrasting that to their non-harmful recreational - and some would even argue positive - use, by some well-adjusted adults. I do not make that distinction when discussing the inhalation of petrol, because I do not believe that any case can be made for moderate recreational use of that particular substance.
The dialogue within our committee, and between our members and the various agencies and community groups we have communicated with so far, has developed within a national context of concerns about substance abuse generally, and within the indigenous community in particular. Resonating strongly in the Territory have been the views and comments about alcohol abuse that have come from Queensland; in particular, the views and comments of Tony Fitzgerald and Noel Pearson. Pearson argues convincingly that, when a community is rendered sick and dysfunctional as a result of abuse, consideration of historical, sociological causes, and the assertion of the right to drink alcohol as a fundamental individual right, must be put to one side while the immediate health and governance crisis is fixed, by localised restriction of supply - even prohibition, if necessary.
In the Territory, we already have some statutory machinery available to facilitate that sort of outcome in the form of the restricted areas provisions in the Liquor Act. The committee will be looking at those provisions with a view to ascertaining whether they need to be strengthened to allow for prompt and effective intervention to resolve dire health and governance crisis. We are also looking at the underlying orientation and emphasis of the Liquor Act as a whole, due to the concerns that, in its current manifestation, it does not adequately prioritise health promotion and harm minimisation as its primary object.
In relation to this issue of availability as a factor in the rate of alcohol abuse experienced in the Northern Territory, the committee is asking that members and the community consider the following six points:
1. the purpose of liquor licensing legislation;
and how they will put this into practice;
4. whether public health and welfare issues should be the primary criteria in deciding on licence
applications and conditions;
5. whether the Licensing Commission be obliged to separately seek out the views of the community in
question, to ascertain the impact a licence may have on its health and wellbeing; and
6. whether the Licensing Commission should take a proactive approach, to encourage community input.
The committee considers that it is more than timely that serious consideration be given to these matters. My personal opinion - and I stress that this is my opinion and not a considered opinion of the committee - is in line with that of Noel Pearson: that the individual’s right to drink is a secondary consideration in the face of the widespread social devastation caused by alcohol in many communities across the Northern Territory.
In undertaking this inquiry, it has been useful to refer to the earlier work of the Sessional Committee on the Use and Abuse of Alcohol by the Community, which was established by the Territory parliament in 1989. In fact, the committee has drawn on much evidence provided to that inquiry to contrast the alcohol situation then and now, 12 years down the track. For this reason, a summary paper detailing the reason for, and process of, establishing that committee of inquiry, as well as its early work leading up to tabling of its first major report in 1991, ‘Measures for Reducing Alcohol Use and Abuse in the Northern Territory’, has been included as an appendix to this report.
The third substance under investigation by the committee is cannabis. In an early brief to the committee, the Department of Health and Community Services reported that there has been a global increase in the use of cannabis leading to it now being the most widely-used illicit drug in Australia. This, of course, does not differentiate between the different levels and styles of cannabis use by individuals. An examination of these levels and the type of use would be more valuable in placing the ongoing debate about cannabis use in perspective. At one end of the spectrum there is experimental use, which may be repeated or may be a one off. The next is that of a functional or recreational use which causes no harm to the user. Next comes dysfunctional use, leading to impaired psychological and/or social functioning. Then, further along the scale, we get to harmful use causing damage to the user’s mental and/or physical health. At the extreme, is dependent use where tolerance has been developed and withdrawal symptoms will occur when use is ceased.
Evidence was provided to the committee of the widespread use of cannabis in indigenous communities where it was virtually unknown a little over a decade ago. Of real concern is how cannabis is used or, more exactly, abused in these communities. Reports tell of binge use, and using bucket bongs to consume large amounts for instant hits. On the scale of use detailed earlier, this would place users in, at the best, the dysfunctional category. More likely, however, this is borne out of evidence by mental health service providers of psychosis and other mental health problems. It would be in the harmful or dependent levels of use.
The committee flags in the report that it will be looking more closely at the issues of cannabis supply and distribution during the process of the inquiry. A recurring theme and evidence provided to the committee is the inadequacy of mental health service in remote communities. Psychotic episodes resulting from substance abuse is increasingly being experienced. It appears essential that more resources are needed in the area of mental health as a matter of urgency. The committee also heard of problems of coordinating mental health services with substance abuse services. This will also be pursued.
If nothing else, it is hoped that the committee will succeed in bringing to the attention of the wider community that suicide is in epidemic proportions in some communities. While related to social and family dysfunction, substance abuse - particularly that of cannabis and alcohol - is often the catalyst to the high rate of suicide. This needs to be emphasised. In the five-month period to September 2002, in one indigenous community with a population of 1600, there were five suicides, and this is not an isolated epidemic. The question raised for members of the committee is: what is the correlation between substance abuse and suicide and how applicable is this to other communities in the Northern Territory?
Indigenous substance abuse is a complex issue and the path to a solution lies in the range of factors related to social and economic change. One avenue which the committee has commenced to explore is that of the adequacy of government services provided to remote communities, and how these are coordinated. How does this impact on the ability of a community to affectively address the problems which leads to substance abuse? The committee still has much work to do before it will be in a position to present a definite report to the Legislative Assembly. In the meantime, I look forward to receiving feedback in relation to the issues raised in this interim report.
I acknowledge and thank all members of the committee for their hard work and bipartisan support in the conduct of this very important inquiry, and put on record my appreciation of our committee staff.
Madam Speaker, I seek leave to continue my remarks at a later hour.
Leave granted.
Debate adjourned.
ADJOURNMENT
Ms MARTIN (Chief Minister): Madam Speaker, I move that the Assembly do now adjourn.
In the adjournment debate this evening, I acknowledge the achievements of individuals and groups in our Territory community. I have recently been advised that the Portuguese and Timorese Social Club has elected a new management committee. Honourable members will be aware that the club has made a substantial contribution to social, economic and cultural development in the Territory. The club is a social, cultural, sporting, and recreation organisation. Its main objectives are to promote the welfare and social development of all members of the Portuguese-speaking community living in Australia, particularly those resident in the Territory; to devise and implement strategies and promote other measures designed to meet the needs of members of the club and members of the Portuguese-speaking community generally, in relation to education, professional and technical training, employment, housing, health and maintenance of an adequate standards of living; and to promote the preservation and development of traditional Timorese and Portuguese activities in the social, cultural, sporting and recreation fields.
I am sure honourable members will join me in congratulating the following members of the new executive: Joaquim Da Silva, President; Diamantino Ribeiro, Vice President; Richard Blom, Secretary; Vice Secretary, Patrick Jackson; Treasurer Jackie Blom; and Vice Treasurer, Paolo Guerreiro. I wish the new executive best wishes for their activities in the year ahead.
I also acknowledge the outgoing executive committee which has served their community very well: Oscar Nunes, the President; Fernando Oliveira, Vice President; Secretary Jose Fernandes; Vice Secretary, Sandra Santos; Treasurer, Ana Bentes; and Vice Treasurer, Manuel Costa.
Last Monday, I enjoyed the opportunity to attend the annual general meeting of the Stuart Park School Council. Linda Parnham was returned as President, Peter White as Treasurer and Nea Harrison as Secretary. A number of parents, including Karen Stringer, Pam Traeger, Julie Croft, Ian O’Reilly, Elizabeth Ganter, Matt Kelly, Peter Pearse, and Ian Redfern were elected as council members. The teachers’ representatives on the council are Denise Vincent, Judy Samuels and Donna Harding.
The committee bid a sad farewell to their Secretary, Wendy Eccleston who, having served on the committee for six years, was required by the constitution to take a well-earned break. Wendy has served on the committee in various capacities and is a committed member of the Stuart Park School community.
I place on the record the contribution of former Principal, Rod Best, who provided outstanding leadership in the school. Rod has departed for Alyangula Area School and I am sure honourable members will extend their best wishes to him for a successful tenure at Alyangula.
Vibrant and successful school communities rely on the participation of dedicated parents. I congratulate all those elected to the new school council and extend my best wishes to them for their activities in the years ahead.
Recently, I took the opportunity to acknowledge in this Assembly the recipients of Australia Day Honours. This evening, I place on the record some of the other outstanding Territorians who were recognised on Australia Day. The first of these, Kevin Williams Davis. Kevin Davis received the Order of Australia Medal for service to the community, the arts and education, particularly the development of educational opportunities for Aboriginal children. Mr Davis is the Deputy Vice Chancellor (Administration) at the Northern Territory University. He has been Pro Vice Chancellor (Administration) and Registrar since 1989, executive officer of the NTU Foundation for over eight years, and a supporter of the development of the NTU solar car.
Kevin Davis was director and a council member on the Darwin Institute of Technology, previously known as the Darwin Community College, and was instrumental in the merger of the two institutions which formed the NTU. He is a board member of the Darwin Symphony Orchestra, Chair of the NT Literary Awards, Chairman of the Friends of the DSO, and a former member of the Royal Darwin Hospital board. Kevin Davis has an abiding commitment to indigenous education, the Northern Territory University and the Darwin Symphony Orchestra. I am sure all honourable members will join me in congratulating him on his Order of Australia Medal.
Another award recipient on Australia Day was Superintendent Warren O’Meara. Superintendent O’Meara received the Australian Police Medal in recognition of distinguished police service. His career spans 27 years of distinguished and dedicated service. Warren O’Meara joined the Northern Territory Police Force on 21 April 1975, coming from Victoria. Following recruit training, he was posted to Alice Springs, where he remained for two years and was then transferred to Groote Eylandt.
The ability to effectively interact and communicate with the community at all levels was evident, even in this early stage of his career. The strong alliances and mutual respect he developed with local communities such as Alyangula, Angurugu, Umbakumba and Numbulwar, did much to strengthen the relationship between the police force and the community. Superintendent O’Meara, in a later position as Officer in Charge of Daly River, built a strong bond with the community. Following service at Daly River, he transferred to Darwin, where he served in both general duties and the Drug Squad and was promoted to sergeant. His time in the Drug Squad was put to good use as the basis for the development of successful strategies to combat drug use in Aboriginal communities.
Superintendent O’Meara became a commissioned officer in 1988 at Katherine, then an inspector. On 1 February 1990, he was promoted to superintendent. He has been responsible for divisions at Tennant Creek, Katherine, Alice Springs and Darwin.
Warren O’Meara committed himself to the enhancement of policing and social services to Aboriginal communities. He has promoted and developed initiatives such as Night Patrol and domestic violence services in remote areas, improved training for Aboriginal community police officers, expanded the school-based constable concept to include Aboriginal communities, and illicit drug reduction strategies which combined enforcement with education and health improvements. Superintendent O’Meara also represented the police force in dealings with the Royal Commission into Aboriginal Deaths in Custody, and was commended by the commission for his valued and informed input. He is highly respected by his peers and the communities across the Northern Territory. In particular, his standing among Aboriginal communities and organisations is a tribute to his years of dedication and visionary approach to Aboriginal issues.
Superintendent O’Meara is married to Anna, and much of their family life has been in Katherine. They have retired, sadly, to the south coast of New South Wales.
Michael Bowman received the Emergency Services Medal in recognition of his dedication and achievements as an employee of the Northern Territory Emergency Service. He has served as a permanent member of the Northern Territory Emergency Service since 9 September 1997, and is currently the Assistant Director. Throughout his service, Michael Bowman has tirelessly dedicated his considerable effort to the improvement and efficiency of the NTES throughout the Northern Territory.
Michael Bowman has considerable nautical experience, having served with the Merchant and Royal Navy. His extensive nautical knowledge has been invaluable to the direction in which the service has proceeded in developing their nautical search and rescue ability in the Top End. He has, through his leadership and tireless efforts, been instrumental in developing the NTES volunteer units to what they are today. Although by comparison a small organisation, the service has continually developed under Michael Bowman’s leadership and innovative style, and he has the respect of the staff under his command.
In some of the more remote areas of the Territory, Michael Bowman has been instrumental in the smooth melding of volunteer units with fire and rescue volunteer units into one fire and emergency rescue group of volunteers. These communities have benefited from the establishment of a multiskilled volunteer group capable of serving and protecting their community from any emergency. Michael Bowman has also been instrumental in the preparation and exercising of disaster plans in high risk areas within the Territory. He has worked continually on building and fostering the relationships between the NTES and key stakeholders contained in disaster plans to ensure success in times of floods. Evidence of this was seen in the aftermath of the Katherine floods.
Another award recipient was Lieutenant Daniel Graham Hughes of the Royal Australian Navy, who received a Commendation for Distinguished Service in the honours list on Australia Day. Lieutenant Hughes was involved in Operation Slipper - HMAS Sydney enforcing UN sanctions in the Persian Gulf at the end of 2001. He was the boarding officer in charge of 16 personnel. His role was to board ships trying to smuggle contraband in and out of Iraq. The award citation reads:
- His strong leadership, excellent example and tireless efforts were instrumental in the success of
HMAS Sydney’s mission.
Lieutenant Hughes is one of the many impressive members of the Royal Australian Navy who serve our country with courage and distinction.
Darwin-based Army Sergeant Scott Baxter received a Commendation for Distinguished Service as part of the Australia Day honours after service in East Timor. He has been singled out for his proactive nature and dedication to duty as Squadron Quartermaster in charge of stores logistics at Sulai in East Timor, from December 2001 until 25 April last year.
He improved the quality of life for Australian and New Zealand troops by organising the building of shelters after troops lived in tents for two years. He also boosted morale among the ANZACs by organising volleyball and cricket matches. Sergeant Baxter’s job on arriving in war-torn Timor was to get accommodation and kitchens built. I am sure all honourable members will join me in congratulating Sergeant Baxter on his commendation for distinguished service in the Australia Day’s honours list. He is a credit to the Australian Army.
Dr LIM (Greatorex): Mr Acting Deputy Speaker, tonight I make a comment about a little article that appeared in today’s NT News. It was written in NT Beyond and it refers to the Chung Wah Society and a lion dance which occurred in Alice Springs. Unfortunately, the article linked the Chung Wah Society with me, as the member for Greatorex and as a CLP member of the Assembly as well.
I am the Vice Patron of the Chung Wah Society and have been that for many, many years. When I first came in contact with the Chung Wah Society, I knew them only at a very superficial level, understanding that they were the representative group on behalf of ethnic Chinese in the Top End. Over the years I got to know them more. I had many dealings with them and have been an associated with many of the society’s functions and activities. I was very pleased that they invited me to be their patron quite a few years ago. Once I became the patron, I continued my strong association with the Chung Wah Society, and encouraged them to spread their influence to involve the whole of the Territory. It was through that role as Vice Patron that I invited them to come to share the Chinese New Year festivities in Alice Springs.
Each year, the Chung Wah Society applies to the Office of Ethnic Affairs for grants, through the Ethnic Affairs sponsorship program which all other ethnic groups in the Northern Territory apply to for support of their various activities. Some years, the Chung Wah Society gets a fair bit of money and other times they get a smaller grant from the Office of Ethnic Affairs. Obviously, the funding from the Office of Ethnic Affairs assists with getting the Lion Dance Troupe of 10 performers to get to Alice Springs for a two-day event.
The local community of Alice Springs provides huge support for the Lion Dance Troupe. They get free accommodation for two nights, free meals for breakfast provided by the accommodation house, and a 15-seater bus provided for free by one of the car hire companies to enable the troupe to travel around the town for the two days. We have volunteers who drive the bus for us, people who have the appropriate licence, so that the troupe can be driven around in safety and comfort. We have restaurants providing lunches and dinners every day to ensure that the troupe get fed well, and many shops will offer them free cold drinks, as they know that their performance takes a lot of work from them in the arid climate that they are not used to as they all live in Darwin, and they need to keep their fluids up. All in all, the community strongly supports the Chung Wah Society Lion Dance Troupe and in return, the Chung Wah Society looks forward to continuing its association with Central Australia.
Each year, the community of Alice Springs is told about the impending the arrival of the Chung Wah Society lion. There are advertisements in the papers, posters spread all over town, and just about every shop that wants to participate will have a poster in their front window so that the whole event is well publicised. The Centralian Advocate takes an ad from me and gives me space for an editorial to write about the coming event. Many people are canvassed by telephone calls and letters to see whether they want to be involved. People are asked to contact my office because it is a very central point and, being the Vice Patron of the Chung Wah Society, it makes very good sense that people contact my office to make arrangements. It is also at the time that they make contact that it is explained to them what it means to be part of this festivity. The whole process of the blessing of the lion is explained to them; even the choreography of the lion dance is explained to the business proprietors or to the private residents who want to be blessed.
I coordinate the visit in town; imagine, these 10 young fellows come to Alice Springs on an early morning flight and have to perform for two solid days. They would bless almost 100 shops, stalls, houses and business premises in the two days. That is a tremendous amount of work for them to do. Many times, they would have to do shoulder stands on each other to reach for the offering given to them by the business house, and that takes a lot of effort. It is important, therefore, that the blessings are well organised and who better to organise it than their local contact, namely me, in my role as the Vice Patron and in my very active role just going around with the Lion Dance Troupe, not only in Alice Springs when they are there but also here in Darwin when the blessings occur around town.
You have all seen the lion dance before. Perhaps if I can explain it a little more, it is also called the game of the lion which, in its true form, is a demon expelling ritual. In the early Eastern Han Dynasty, about the years AD25 to AD220, emissaries from the kingdom of ancient Persia brought lions to the court as a tribute. Because the lion is not indigenous to China, the king of the beasts was highly valued and those rare and powerful animals eventually took on a mythical aura and became symbolically associated with purity and protection. With choreography innovations incorporated into the dance during the Tang dynasty, this performance became increasingly vivid and expressive. You observe how the lion dancers perform, with the stretching and the scratching of the lion as it wakes; how it revels in life, prancing around; the way it marks it territory, just like a big cat, to protect it from demons.
Today, the lion dance is merely performed at auspicious occasions such as shop openings, house openings and religious occasions and blessings throughout the year, as well as during the Chinese New Year celebrations. It is performed purely for entertainment at openings or welcoming ceremonies, conferences. At other times, it is a very serious, religious ceremony like the blessing of a temple and, sometimes, when people specifically ask for the lion to bless their homes or bless their offices.
Chinese New Year, obviously, is by far the most significant time for the lion dance. Every year during the period of Chinese New Year celebrations, it is performed for Chinese businesses, in homes of the Chinese people who want their homes blessed and, increasingly, non-Chinese business houses are also asking for the blessing to bring good fortune for the coming year. Shop owners look forward to the lion visiting the shop because the lion promises good luck. When he dances at your place of business, he wards off any evil spirits that may harm your wellbeing. In turn, the shop owners or business houses offer the lion lucky red packets, or Hong Baos, filled with money, wrapped together with lettuce leaves. The offering is hung at the shop entrance for the lion to devour after blessing the shop. I am led to believe that whatever is offered to the lion is to return tenfold in good luck through the coming year. Any money collected by the lion is blessed by the Chinese Temple here at the Chung Wah Society, and the money is used for the upkeep of the temple and other community activities.
When this article appeared, it caused a bit of discomfort for many people at the Chung Wah Society. Alice Springs people knew that they needed to make a reservation to have their shops, offices or homes blessed. I thought, for those people who did not ring for their office to be blessed, it was a pity, because they know very well that, for the last six to seven years that has been the routine, that has been the way that it has to be done, so that the whole visit of the lion can be organised properly. If people have missed out this year, then, obviously, they need to consider how they do business.
When you look at the lion dance as a significant religious blessing, would you expect somebody to just barge into a shop, house or office and do the blessing without being invited? You would not do that. It is no different than if you had a rabbi walk into an Islamic person’s house. How could he perform a blessing without being invited? How could you cope with that sort of thing? Therefore, I suggest it is important that, if people are interested in having their offices, shops, houses or anything blessed next Chinese New Year in Alice Springs, they ensure that they put their names down on the list.
Next year, the Chinese New Year will fall on 22 January 2004. So I ask all members, if they want to have their offices blessed, get the date into your calendar now. It starts on 22 January 2004 and it will go on for two weeks. Next year is the Year of the Monkey. So …
Members interjecting.
Dr LIM: While some people might have made goats of themselves this year, let us hope they do not make a monkey of themselves next year.
My suggestion is: get your bookings in early and you will have your premises blessed without any troubles It is something that has been done for many years. People know the routine and it is important that they understand that. It is a real pity that a very prominent community organisation such as this is put in a bad light, purely because their Vice Patron happened to be the member for Greatorex and lives in Alice Springs. That is purely the only reason why it would happen, otherwise nothing would have been said. It is a real pity about that.
It is no different from the member for Wanguri who was made the Patron of the Hakka Society. Good on him! That is a great thing. They have invited him to be a patron because they value his connection. That is very, very appropriate.
Mr WOOD (Nelson): Mr Acting Deputy Speaker, this gives me a chance to talk to more people and put my little ad in. I will be short. I need to say that, about five years ago, there was a company formed, made up of the Darwin Theatre Company, the Cavenagh Theatre Company, the Darwin Entertainment Centre and the Darwin Chorale, called Superstar Productions.
Since then, they have put on a number of productions - one was Jesus Christ Superstar, the other one was Les Miserables. Productions normally occur every second year. This year, strangely enough, there is one called Fiddler on the Roof. It is occurring at the Darwin Entertainment Centre for four nights during March - 26, 27, 28, and 29, and during April - 2, 3, 4 and 5. This production will employ about 70 local people in the cast, and they are all amateurs - nobody gets paid – and it will also probably have a similar number of people behind the scenes doing all the props and the scenery. They do employ a couple of people to help out. Craig Ilott from Sydney is the director, Bill Griffiths, from the Catholic Education Office, is the musical director, and Mary Fox is the production manager. Generally speaking, it is all local except for the odd import. For Les Miserables we had Steven Kidd from St Phillip’s College in Central Australia direct that show.
All I am saying to people, is that show is coming up. If you want to go, you can get quite a reduction on your ticket prices if you order by tomorrow, which is 28 February. The full price up until tomorrow for an adult is $32, after that it is $40. Maybe I should turn to camera 1 and say: ‘Don’t miss out, here is your opportunity for you to get some cheaper tickets’. They do have tickets for groups and families. I encourage everybody to spread the word that it is on, because it really is a good community show. There are many people involved, and the more people who can show their support, the better it is because it means that, in two year’s time, there will also be enough money to run another production. I just hope everybody can get there. I will see you there as well.
Mr STIRLING (Nhulunbuy): Mr Acting Deputy Speaker, it is with great pride, as member for Nhulunbuy, I acknowledge one of my constituents, Mr Gawirrin Gumana to be appointed an officer of the Order of Australia later this year. Gawirrin, with his father Birrikitj, founded the Gngn Outstation, spiritual homeland of his people. Gawirrin believes his father held the knowledge about both Yirritja and Dhuwa Moiety in Arnhem Land, and taught him the traditional knowledge which has brought Gawirrin to where he is today.
He says the Order of Australia appointment is recognition of his father’s work and love. He feels enormous pride and is, of course, happy to be receiving the award. I congratulate Gawirrin on his achievements, his devotion to his community, his commitment to building relationships between Ngapaki and Yolngu Australians. Gawirrin Gumana of Gngn is a wonderful community and cultural ambassador, a leader of the Dhalwangu clan, an executive director of Yirrkala Business Enterprises, and a minister of the United Church.
Gawirrin is also a talented and well renowned artist, taking out the National Aboriginal and Torres Strait Islander Art Award at the Northern Territory Art Gallery last year for his Larrakitj, a memorial pole depicting sacred sites in Arnhem Land. Mr Gumana is incredibly deserving of this honour which recognises services provided to Australia, and I congratulate Gawirrin on his achievement.
I also congratulate all of the successful 2002 Year 12 students receiving their graduation certificates. Former high school students are now versed with the skills to help them succeed in the next stage of their life, whether it is to further their studies at university or TAFE, or go into the work force. In February 2003, I hosted a function in recognition of the Territory’s top students for 2002. As Minister for Education, Employment and Training, I was encouraged to meet some of these talented students, and learn of their achievements and goals.
As member for Nhulunbuy, I am particularly proud to acknowledge two top students from Nhulunbuy High, Patrycjia Zielinski and Kerri Thomas. Patrycjia, one of the Territory’s top 20 students, was presented with a Certificate of Merit by His Honour the Administrator. Kerri, studying through Nhulunbuy High School and the Open Education Centre, was named one of the three outstanding Australian history students. Congratulations once again to all students. I wish them all the best in whatever future awaits them.
It was a great occasion when Darwin hosted the Carlton v All Stars match earlier this month. In conjunction with the game, the matches that were held as preludes to the main game were made up of teams that represented their regions with commendable energy and skill. I was prejudiced, of course, towards the Miwatj side representing north-east Arnhem Land, which had a number of great players from my electorate. I was delighted to watch Miwatj, with players who travelled from Yirrkala, Galiwinku, Ramingining, Ngukurr, Gapuwiyak and Groote Eylandt to play a great game against Katherine. I took the opportunity to meet with the Miwatj team prior to the match, and the excitement and determination of the players was inspirational.
The final result could not have been better, Miwatj winning narrowly. Tired they were, there was no doubt about that, but they were out of season. Katherine, of course, are in full season, so they did expect Katherine would come home strongly. They held a three goal lead throughout the game and managed to hold on in that exciting last quarter to win by three points. I congratulate all players for their effort - they were out on their feet at the final siren.
However, it would be remiss of me not to acknowledge and pay credit to those who contributed to the success, including Vern Patullo, who coached Miwatj, assisted by big Tim Forsyth, Australia’s high jump champion, and captain, Gary Dhurrkey. Carrying a bit of weight, Gary, still managed to kick four or five goals from full forward. He did not have to run far, but one early in the second quarter was just a delight - he was outside the 50 m, swung onto the right foot, a long way from goal, and put it through about post height. That was the form Dhurrkey displayed in his career, even at the AFL level. Though he is carrying a bit of weight now, he still has it, and congratulations to that team.
One player I pay particular tribute to is Constable Gary Smallridge, who served at Nhulunbuy Police Station for some time before going to Nguiu. He is now based in Darwin. This guy is a champion, he played his heart out. It was appropriate, when the ball came out of the back line very late in the last quarter and landed in his arms on the half back flank. I breathed a sigh of relief, because I thought the siren could not be far away, and the ball at that stage of the game could not be with a better player, in my view. As he went back to take his kick with that mark, the siren went. Normally, you would see a player throw the ball in the air, the arms in the air with genuine jubilation. Such was Gary Smallridge’s state of mind and body, and total exhaustion, that the ball dribbled out of his hands to his legs and he trudged across to join his delirious team mates. He had given absolutely everything in commitment to that game, and it was just a great way for it to finish.
Mr HENDERSON (Wanguri): Mr Acting Deputy Speaker, I pay tribute tonight, on behalf of many people in the Chinese community in Darwin, to Darwin’s eldest citizen, Mrs Jong (Lee Tsu Moe), who died aged 100 just recently. She was living in Leanyer with her second son, her eldest living son, Mr Nhang Meu.
Mrs Jong was born on 11 November 1902, in the village of Moiyan in southern China’s Guangdong Province, formerly Canton. Mrs Jong migrated to East Timor at 19 years of age and, after the birth of her first child, she raised a boy in East Timor. It was then that a clerk in Dili unwittingly registered her date of birth as 11 November 1904. My good friend, Jason Lee, also noted and has advised me that: ‘At death in Chinese custom, a person’s age increases three years if they were more than 60 years of age’. So, this grand old lady of the Territory was 100 years biologically, 98 years officially, and 103 years in the Chinese age. What a wonderful lady!
Mrs Jong gave birth to eight more children - six girls and two boys - whilst living in East Timor. In good Chinese tradition, Mrs Jong left a legacy - and these are incredible numbers - of 107 grandchildren and great-grandchildren, to carry the name into the future. It is interesting to note that three daughters died in East Timor during World War II, whilst another daughter died in Taiwan. Her eldest boy has died and was buried in Jingili. Most of these 107 grandchildren and great-grandchildren are living in Australia, large numbers in Melbourne, Sydney and in Darwin.
Mrs Jong migrated to Australia in 1989, and her twilight years were spent with, as I said before, her second son, Nhang Meu, in Leanyer. Her explanation for her longevity was due to the regular consumption of a special type of antler horn. Jason Lee explained that in Chinese custom, the horn of a particular type of deer is believed to be the best health food in the world. Mrs Jong reflected this claim.
Mrs Jong was a dedicated and devoted mother who toiled non-stop to raise her nine children. She was a keen gardener, a marvellous cook, and she will be very, very fondly remembered and greatly missed by, not only her immediate family, but many, many hundreds of friends and relatives throughout the Chinese/Timorese community in Darwin.
Motion agreed to; the Assembly adjourned.
Last updated: 04 Aug 2016