a36 s2 20040505 all

Legislative Assembly

Wednesday, 5 May 2004

THE SPEAKER (Mr F. Riebeling) took the Chair at 12 noon, and read prayers.

WARREN-BLACKWOOD DISTRICT, HOSPITAL SERVICES FUNDING CUTS Petition

MR P.D. OMODEI (Warren-Blackwood) [12.02 pm]: I present the following petition -

To the Honourable the Speaker and Members of the Legislative Assembly of the Parliament of Western Australia in Parliament assembled.

We, the undersigned, say:-

That we, the people of the Warren-Blackwood District are deeply concerned about moves by the Premier . . . and Health Minister . . . to cut funding and services in our local hospitals. Further, many of us have great difficulty in accessing health care and services in Bunbury and Perth.

Now we ask that the Legislative Assembly advise the State Labor Government that we believe that Health Care and Health Services should be restored to our towns so that the majority of people can be cared for in our hospitals close to home and family.

Your petitioners therefore humbly pray that you will give this matter earnest consideration and your petitioners, as in duty bound, will ever pray.

The petition bears 692 signatures and I certify that it conforms to the standing orders of the Legislative Assembly.

[See petition No 342.]

CENTRE FOR URBAN DESIGN IN WESTERN AUSTRALIA Statement by Minister for Planning and Infrastructure

MS A.J. MacTIERNAN (Armadale - Minister for Planning and Infrastructure) [12.04 pm]: At the International Cities, Town Centres and Communities Conference in Fremantle this morning, I announced the creation of a new, dedicated Centre for Urban Design. The Centre for Urban Design in Western Australia will raise the profile of urban design, provide direction and guidance for government and industry, research policy innovations and advise on new directions in best practice of urban design. The centre is a joint initiative of the State Government, the University of Western Australia and Curtin University of Technology.

This morning I also announced the appointment of the highly respected urban designer Ruth Durack as the inaugural director of the new centre. Ms Durack, an expatriate Western Australian, is currently the Director of the Cleveland Urban Design Collaborative at Kent State University. Ms Durack’s extensive teaching and research experience and her contribution to urban design studies make her an excellent choice to guide the early work of the centre and improve the quality of the built environment - a principle to which this Labor Government is firmly committed. We are most grateful that Ms Durack has agreed to come back to Western Australia to take up this position. The State Government will contribute more than $800 000 towards the project during the next four years. The centre is expected to be up and running within 12 months and a location and course structure will be finalised within the next few months.

The Gallop Government believes it has an important role to play in promoting and utilising the academic work of our universities. We have focused on working collaboratively with the universities to foster intellectual leadership and vigour for our planning professionals. The Centre for Urban Design will bring a cutting-edge focus on sustainable urban design and on the building design skills necessary to achieve it.

Perth’s population is expected to grow by more than 750 000 in the next 25 years. Some 370 000 new homes will need to be provided and 350 000 new jobs created. This growth must be accommodated without compromising the livability that makes Perth a great place to live, and sustainable urban design is a key to achieving that end.

The centre will coordinate and undertake research projects to help demonstrate best practice urban design. The centre will also progress a research agenda about key elements of urban design that are critical to Perth’s future. The initiative will draw on the broad resources of the universities. The work of the centre will be supported by the development and adoption of a Western Australian urban design charter, which will set a context and principles for sustainable urban design. The Centre for Urban Design in Western Australia is a testament to the principle of the effectiveness and importance of partnerships when driving innovation and encouraging change.

2304 [ASSEMBLY - Wednesday, 5 May 2004]

“LIFE ALONG LAND’S EDGE: WILDLIFE ON THE SHORES OF ROEBUCK BAY, BROOME” Statement by Minister for the Environment

DR J.M. EDWARDS (Maylands - Minister for the Environment) [12.06 pm]: I take this opportunity to inform the House of a new publication that represents a milestone in international collaboration to conserve one of the world’s most remarkable intertidal wetland systems. The book titled Life along land’s edge: wildlife on the shores of Roebuck Bay, Broome is the culmination of years of collaboration and research by a team of scientists from throughout the world, but most significantly, from the Netherlands and Western Australia.

Roebuck Bay was declared a wetland of international importance in 1990 under the Ramsar Convention on Wetlands and is internationally recognised as a wetland refuge for many hundreds of thousands of migratory shorebirds. Its biological diversity makes it one of the world’s richest known intertidal wetlands. The State Government is considering the area as a future marine conservation reserve.

Since 1996, scientists and other staff from the Department of Conservation and Land Management have been involved in research on the Roebuck Bay mudflats with a team from the Royal Netherlands Institute for Sea Research and scientists from the Western Australian Museum, the University of Groningen, Curtin University, Washington Central University, Griffith University, Charles Sturt University, Birds Australia and the Australasian Wader Study Group. This research has built on a relationship between CALM and the Royal Netherlands Institute for Sea Research that dates back to 1991, when the first detailed study of the relationship between shorebirds and their invertebrate food sources was undertaken by two Dutch students at Broome.

Life along land’s edge tells the story of the ecological richness of Roebuck Bay. In particular, it recognises the very close connection of indigenous people with the bay in the past and today and their important role in its future management. The magnificent photographs have been taken by Dutch wildlife photographer Jan van de Kam, who worked in Roebuck Bay for more than three years and gathered in excess of 30 000 images. Broome Aboriginal artist Mark Drummond provided the beautiful illustration of nature’s harvest that the bay represents for Aboriginal people.

Projects such as this publication do not happen on their own. Although the Department of Conservation and Land Management has published the book, many other organisations have been involved. These include the Commonwealth’s Natural Heritage Trust’s Coastwest/Coastcare scheme; the Norman Wettenhall Foundation, the Broome Bird Observatory, the World Wide Fund for Nature, Environs Kimberley, Wallis Drilling Pty Ltd and CALM’s Landscope Expeditions.

Life along land’s edge is not only a fine example of the benefits of collaboration between government agencies, other research institutions and the broader community; it also is a timely reminder to us all to examine how we care for important places such as Roebuck Bay. I can commend this excellent book to members. I have arranged for a copy of Life along land’s edge to be forwarded to the Parliamentary Library, where it will be available for the benefit of members.

EMERGENCY HEALTH CARE SERVICES Statement by Minister for Health

MR J.A. McGINTY (Fremantle - Minister for Health) [12.11 pm]: I rise to inform the House about the comprehensive strategy the Government has put in place to improve emergency health care services across the metropolitan area.

Over the past decade, Western Australia has experienced a significant increase in demand pressures on hospital emergency departments. The burden is due to a combination of the ageing population, work force shortages, a lack of access to general practitioners - especially after hours - a reduction in the number of inpatient beds in public hospitals and a shortfall in commonwealth nursing home beds.

The strategy we have put in place to cope with these increased pressures in the metropolitan area includes the following key components. The Government is spending $20 million to open 332 extra hospital beds for the coming winter months of May to September when demand for emergency services is at its highest. The extra beds will reduce bottlenecks when patients cannot be transferred from emergency departments to hospital wards due to a lack of beds. The Government has also expanded its winter flu awareness campaign to target people with chronic illnesses and those aged 65 and over. The Government has provided an extra $34.7 million to St John Ambulance Australia over five years, to improve ambulance response times and help reduce the need for ambulance diversion and ramping at emergency departments. The extra funds will pay for 30 new ambulances and more than 100 new officers. A new computer system linking St John Ambulance to emergency departments will help improve the control and direction of ambulances. Four new after-hours bulk-billing medical centres are being established adjacent to the emergency departments at Royal Perth, Fremantle and Rockingham-Kwinana District Hospitals and the Joondalup Health Campus. A general practitioner and a registered nurse will staff the centres. The focus of care will be on minor injury and illness to help ease demand on emergency departments. A $22.4 million capital works program is under way to upgrade emergency departments at Sir Charles Gairdner, Swan District, Princess Margaret and Rockingham-Kwinana District

[ASSEMBLY - Wednesday, 5 May 2004] 2305

Hospitals. The $9.3 million upgrade of the emergency department at Sir Charles Gairdner Hospital will make it one of the most modern facilities in the country, catering for 45 000 patients a year. Greater use is being made of secondary hospitals to improve access and provide treatment for patients closer to their home.

As well as those initiatives, the Government has funded the establishment of 92 care-awaiting-placement beds under contract in the metropolitan area. These beds are to cater for patients who no longer require acute care and are better cared for in a nursing home. However, they are being accommodated in acute hospital beds, further worsening the inpatient bed problem. The WA Department of Health’s health call centre, HealthDirect, is playing an increasingly important role in helping assess health consumer needs and providing people with relevant advice and/or referral to the most appropriate service. There is also the residential care line. This is a 24-hour, seven-day-a-week service for registered nurses in several residential aged-care facilities to help them manage the medical condition of patients, thus reducing the need for a hospital admission. This service will be expanded to all aged-care homes in the metropolitan area. An alternative to inpatient rehabilitation will be trialled. Up to 20 patients a day will receive intensive rehabilitation therapy within their own home, enabling early discharge from hospital.

We as a Government recognise that our emergency departments are under enormous strain. We have listened to the doctors, nurses and patients. That is why we as a Government are doing everything humanly possible to relieve that pressure in emergency departments.

I table the “Metropolitan Health Services - Emergency Demand Strategy 2004”.

[See paper No 2310 .]

MARGARET RIVER EDUCATION CAMPUS Statement by Minister for Education and Training

MR A.J. CARPENTER (Willagee - Minister for Education and Training) [12.14 pm]: I rise to report to the House on yesterday’s official opening of the $9.8 million Margaret River Education Campus.

The campus is a joint venture between the West Australian and Commonwealth Governments, the South West Regional College of TAFE, Curtin University of Technology, Edith Cowan University, Margaret River Senior High School and the Department of Education and Training. This project is a tangible example of the Gallop Government’s vision of a seamless, integrated education, training and employment system and the recognition of the educational and training needs in regional Western Australia. Consequently, during the past few years, and in concert with the universities, we have endeavoured to establish a range of different university campuses and university centre models. The Margaret River Education Campus is an outstanding example of this.

The campus has a senior high school, TAFEWA campus and the two universities on the one site, allowing students to move from high school to vocational education and training and university without having to leave Margaret River. For Year 11 and 12 students and teachers at the Margaret River Senior High School, this means access to TAFEWA and university facilities, including the campus centrepiece, the Centre for Wine Excellence. The state-of-the-art training winery will provide hands-on experience in sophisticated research and teaching facilities and will further enhance Margaret River’s international reputation for producing world-class wines.

The campus will ultimately offer a range of courses, including primary school teaching, art, humanities, horticulture, business and management, computer studies, viticulture and oenology, hospitality and tourism. A boutique training cafe, kitchen and function area will support training for hospitality and tourism. The campus also has a purpose-built art centre, greenhouses and growing sheds, computer and general classrooms and an administration centre with online learning.

The Australian National Training Authority provided $5.15 million to build the campus, with the remainder of the funding coming from the two universities. Five hectares of the Margaret River Senior High School’s farm, valued at $600 000, was also used for the campus. The entire project was led by the Department of Education and Training on behalf of all the stakeholders. I congratulate everyone involved in the project.

ESTIMATES COMMITTEES Standing Orders Suspension

MR J.C. KOBELKE (Nollamara - Leader of the House) [12.17 pm]: I move -

That until 1 July 2004, Standing Orders Nos 222, 223 and 230 are suspended and the following sessional orders are substituted -

Bills referred to estimates committees 222. (1) After the second reading of the Appropriation bill or bills which provide for the main recurrent and capital appropriations, the consideration in detail stage will be replaced by Estimates Committees A and B.


(2) The estimates committees will examine the bills and proposed expenditure contained in the Estimates and report on proposed expenditure by the Parliament and government departments and agencies funded from the Consolidated Fund.

(3) The estimates committees may also examine a maximum of five off-budget public corporations, as determined by the management committee, and ask questions regarding their budgets and operations.

Management committee 223. (1) There will be a management committee which will comprise the Leader of the House, one member nominated in writing to the Speaker by the Premier, and two members similarly nominated by the Leader of the Opposition.

(2) Before the estimates committees first meet, the Leader of the House will present to the Assembly the report of the management committee, which report will prescribe -

(a) which parts of the Estimates are to be considered by each committee;

(b) the time allotted for consideration of each part or any division or program of the Estimates and the budgets of those agencies referred to in Standing Order 222(2) and (3); and

(c) following consultation with Assembly members, which five off-budget public corporations will attend estimates committee’s hearings for a minimum of 30 minutes per corporation.

Ministerial advisers 230. (1) Advisers who are present at an estimates committee to assist ministers will not directly answer questions or otherwise address the committee except with the approval of and in the presence of a minister or parliamentary secretary.

(2) Representatives of off-budget public corporations are treated as ministerial advisers for the purposes of this Standing Order.

The motion establishes the sessional order that provides for the inclusion and examination during the estimates hearings on the budget of up to five off-budget agencies. This was first trialled during estimates last year, and general feedback indicated that it was a success. It was a clear move by the Gallop Government to establish procedures that give greater openness and accountability of the operation of government through the process of estimates. The Standing Committee on Procedure and Privileges recommended the examination of off-budget agencies in its report on the operation of estimates committees, presented to the House in March 2003. I again undertook a survey of all members of the House, other than ministers, to determine those off-budget agencies that would be incorporated in the estimates schedule for this year. As a result of that feedback, I will propose that the following off-budget agencies be included this year: Western Power, the State Housing Commission, the Water Corporation, the Rottnest Island Authority and the Community Insurance Fund. Four of these off-budget agencies attended estimates last year, with the Community Insurance Fund being the new off-budget agency this year. The off-budget agencies will once again each be allocated half an hour in the estimates schedule.

I take this opportunity to thank those members who helped by returning the survey form. The sessional order also provides that representatives of off-budget agencies be treated the same as ministerial advisers during the estimates hearing, meaning that only with the approval of a minister are they to respond directly to members’ questions. As I have also said before in the House, the examination of off-budget agencies during the estimates committee process is a further important enhancement of the scrutiny process. It increases the openness and accountability of government, and that is something that we have clearly driven and not resiled from. I certainly hope that there will be clear support for the re-establishment of this sessional order to allow that enhancement of the estimates committee system for this year’s budget process.

Question put and passed.

WORKERS’ COMPENSATION REFORM BILL 2004 Introduction and First Reading

Bill introduced, on motion by Mr J.C. Kobelke (Minister for Consumer and Employment Protection), and read a first time.

Explanatory memorandum presented by the minister.

Second Reading

MR J.C. KOBELKE (Nollamara - Minister for Consumer and Employment Protection) [12.19 pm]: I move -


That the Bill be now read a second time. The Workers’ Compensation Reform Bill 2004 establishes a new direction for workers compensation in this State by helping to restore fairness, balance and certainty to the system. Workers will be more adequately compensated and provided with assistance to return to work and employers will benefit from more stable premiums. The legislation is based upon the recommendations of a comprehensive review undertaken for the Government by Dr Robert Guthrie on the implementation of the Labor Party’s direction statement in relation to workers compensation. This review was released for public comment in October 2001. Thirty-five submissions were received from interested parties, culminating in the development of a position paper that built upon the recommendations of Dr Guthrie. These recommendations were actuarially costed and provided to stakeholders. A process of refinement followed with input received from major stakeholder groups. Throughout this process, the positive and committed involvement of unions and their representatives, working constructively with government, ensured the proposed reforms would result in a fairer deal for injured workers. A draft Bill was then provided to stakeholders to elicit further comment on the technical details of drafting before the Bill was finalised. A review of the Workers’ Compensation and Rehabilitation Commission was undertaken by Associate Professor Tony Cooke. The majority of the recommendations contained within Professor Cooke’s report have been included in the Bill and will provide the administrative structure necessary to underpin, direct and support the implementation of the new system. The Bill will restore public confidence in a revitalised workers compensation system, encouraging competitive market forces within the privately underwritten system and minimising the social and financial impact of injury and disease. The reforms will deliver $130 million worth of additional benefits to injured workers in the first year with ongoing increased benefits of $60 million per annum. This represents the most significant increase in benefits to injured workers in Western Australia in more than 20 years and delivers on all the legislative commitments made in the Labor Party’s direction statement on workers compensation issued in 2000. The cost of the reforms will result in the average recommended premium rates remaining within the target range of 2.4 per cent to 2.7 per cent of payroll recommended by the Pearson report in 1999. This Pearson report recommendation was supported by employers as an acceptable range that would be sustainable and provide adequate support for injured workers. The Chamber of Commerce and Industry of Western Australia was represented on the Pearson review group and accepted this recommendation. The Government requires the insurance industry to absorb the costs associated with the transition to the new benefit structure and measures to address the Supreme Court decision in Re Monger; ex parte Dutch & Ors (2001) WASAC 220 - the “Dutch decision”. Insurers have experienced high profit levels over the past three years with profit margins above the eight per cent benchmark established by the Premium Rates Committee. It is therefore reasonable to expect that this windfall should be taken into consideration in covering costs associated with claims incurred in previous years. I will now go to the major features of the Bill. Statutory Entitlements: The improvements to statutory workers compensation benefits are designed to provide a better balance between the statutory and common law parts of the system. The majority of improved statutory benefits will be retrospective in that they will apply not only to injuries occurring on or after the date of proclamation, but also to those that occurred before that day, unless a common law election has been registered or the claims settled by agreement or otherwise prior to that day. There will, however, be an exception to this principle as changes to schedule 2 will operate prospectively. Currently many workers on statutory weekly payments are affected by the “cap” that limits those payments to 1.5 times the Australian Bureau of Statistics average weekly earnings figure. This cap will be increased to twice AWE - an increase from $1 021 to $1 362 per week at the current rate. That will benefit many middle income workers. The period before a step down in weekly payments occurs will also be increased from four to 13 weeks which will mean that the vast majority of workers in the statutory workers compensation system will not experience a step down. The new limit on maximum weekly payments will apply immediately to all workers on weekly payments at the time of proclamation. From week 14, the weekly payments step down amount payable for award workers will be amended to include allowances paid on a regular basis as part of a worker’s earnings, which are related to the number or pattern of hours worked. There will also be power to prescribe other allowances that should be included. For non-award workers, from week 14 weekly payments step down, as currently, to 85 percent of the rate applicable before the step down. Although the new limits on maximum weekly payments and the new step down formula will apply to existing claims there will be no back payments for workers whose weekly payments have already stepped down at the date of proclamation. The definition of “industrial award” is revised to ensure consistency with the Industrial Relations Act 1979 and includes enterprise bargaining agreements and enterprise orders. To ensure that injured workers with a permanent total incapacity are adequately compensated for the seriousness of their incapacity, a significant increase in the maximum entitlement of up to an additional 75 per cent of the prescribed amount has been included. Clause 17 will allow for reasonable medical and other expenses likely to be incurred, prior to those expenses actually being incurred. The Bill replaces the definition of “disability” in section 5 with “injury”. It should be noted that the wording under the new definition of injury substantially reflects the existing wording and will not change the coverage of what was formerly defined as disability. Evaluations under schedule 2 of the Workers’ Compensation and Rehabilitation Act 1981, in relation to injuries that occurred on or after the amendment day, will be made on the basis of an impairment methodology. Evaluations will be


made in accordance with the WorkCover WA guides relating to the assessment of impairment. An appendix in the guides will specifically cover evaluation of impairment in relation to schedule 2 entitlement. To reflect this transitional arrangement, the schedule 2 table has been separated into two parts. Although changes have been made to the wording in the items under part II to reflect or to enable an impairment-based methodology to be applied, there will be no reduction in the lump sum payable for each of the items. Evaluation of impairment will also form the basis for the threshold requirement to pursue damages at common law, part of the eligibility criteria for the additional medical expenses under clause 18A and access to the specialised retraining program. Impairment will be evaluated by trained medical experts using appropriate guides that provide step-by-step instructions for the evaluation process. This approach is utilised in evaluating impairment and determining access to the common law system and to many lump sum statutory entitlements in the majority of Australian workers compensation jurisdictions. In the current system there is no certainty for injured workers due to the wide variation in the findings of disability assessments undertaken by medical practitioners. The impairment methodology will provide a more consistent assessment method. To ensure evaluations of an impairment are appropriately undertaken, specially trained medical practitioners - to be known as approved medical specialists - will be available to provide these assessments. So as not to exclude any medical practitioner from participating in this process, any medical practitioner may become an AMS if they have undergone training in the impairment evaluation methodology and meet certain criteria. WorkCover WA will confirm medical practitioners who have the appropriate qualifications to be approved medical specialists for the purpose of evaluating the degree of a worker’s whole-of-person impairment. The WorkCover WA guides will be based on the WorkCover New South Wales guides for the evaluation of permanent impairment which are largely based on the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and are the most up-to-date basis for evaluating the degree of impairment. These guides will have the status of subsidiary legislation and provide direction as to the evaluation of impairment. The impairment methodology for evaluating impairment under schedule 2 will apply only prospectively to an impairment arising from a compensable personal injury by accident that occurs on or after the amendment day. To enable this, transitional provisions divide part III, division 2 of the Workers’ Compensation and Rehabilitation Act 1981 into a discontinued regime - division 2, which applies to an injury occurring before the amendment day - and the new regime in division 2A that applies to an injury occurring on or after the amendment day. The term “injury” to describe the permanent loss of use of or permanent loss of the efficient use of a body part or faculty listed in schedule 2 that results from a personal injury by accident will be replaced by the term “impairment”. This aligns terminology within the workers compensation legislation with recognised medical terminology. In determining entitlements to statutory benefits when a worker and employer cannot agree on the worker’s degree of permanent impairment and the worker has an AMS assessment indicating the degree of impairment, the worker may apply to an arbitrator to determine the question. The arbitrator may determine the degree of impairment or refer the question to an approved medical specialist panel for a binding assessment. An AMS panel may request additional information from another medical practitioner or dentist who may have expertise relating to the condition that the AMS does not possess. For the purposes of part III division 2A of the Act, acquired immune deficiency syndrome will be deemed to be a personal injury by accident, rather than a disease, and it will be included as an impairment arising out of a personal injury by accident - the infection of a worker by human immunodeficiency virus. This entitlement will only apply if both the personal injury by accident, for which the HIV was acquired, and the diagnosis of AIDS occur on or after the amendment day. To ensure injured workers who have exhausted their prescribed medical entitlement have access to appropriate and timely medical treatment to assist their recovery, an important new provision will enable them to be indemnified to exceed the medical entitlement by up to $2 000 while applying for an additional sum. Insurers in future will be required to notify a worker when 60 per cent of his or her medical expenses referred to in clause 17(1) has been reached, not 75 per cent as is currently the case. A new entitlement will be created under clause 18A whereby an arbitrator will be empowered to allow a further additional sum of up to $250 000 beyond the additional $50 000 for reasonable medical and other expenses if the worker meets certain prescribed exceptional circumstances. These will include evidence that indicates that operative intervention will result in further improvement. A limitation period of five years for making such a claim will apply. The final day for the limitation period may be extended in certain circumstances. To access this new entitlement, workers must have an agreed or determined whole-person impairment of not less than 25 per cent. For workers who access this entitlement, damages cannot be awarded at common law. This entitlement will give workers real choice between the improved statutory and common law systems. The amount for funeral expenses will increase from the current inadequate amount of $4 693 to $7 000, with further increases to be prescribed by regulation. The Bill also rectifies an inequity in the current entitlements for dependants of deceased workers by enabling certain dependent children or stepchildren, in the case of total dependency, to be entitled to elect whether to receive the child’s allowance or receive the full notional residual entitlement of the worker. The provision will apply when a deceased worker does not leave a dependant spouse or de facto who is the parent of the child.


Working directors: Although a working director may opt to hold a workers compensation policy under the current provisions of section 10A of the Workers’ Compensation and Rehabilitation Act, there have been instances when claims against a policy were declined by the insurer on the basis that the director did not meet the definition of “worker” under the Act. Court decisions have added to this uncertainty. For example, the compensation magistrate’s decision in Alana Holdings Pty Ltd v Findlay, Debra Sue (Cm-87/99) determined that the director of a family company was not a “worker” for that company, as the director failed to establish that a contract of employment existed between herself, as a director, and the company.

A further problem regarding working directors is the practice of employers in certain industries of exploiting the provisions of section 10A by requiring workers to form their own company. This effectively shifts the employer-worker relationship from the real employer onto the worker’s company. The amendments provide that a working or non-working director is not a worker for his or her own company. As an alternative to covering themselves for workers compensation, working directors may take out alternative disability income protection insurance outside the statutory workers compensation system. Secondly, the amendments will preclude employers from avoiding their obligation to insure workers by providing that when a company contracts with another person - called the “principal” - to perform work that is for the purpose of the principal’s trade or business and the director performs any of that work, the principal must insure that director for workers compensation. This obligation applies regardless of whether the principal purports to contract the work to the company or directly engages or employs the director. When this obligation applies, the provisions of section 175 of the Act have no effect on the director. This means the principal will be solely liable to insure the director and is not entitled to indemnity from the director or his or her company under that section regarding liability for that director. The obligation to cover working directors will not apply if the work is not for the purpose of the principal’s trade or business. An example of this would be a gardener who contracts with a householder to cut the lawn of the family home, and the gardener is a director of his own family company.

Dispute resolution: The new dispute resolution structure seeks to address concerns relating to the timeliness and responsiveness of the existing arrangements and the inequities for injured workers associated with the exclusion of legal practitioners. Included in the changes is the repositioning of the common law process in the District Court for injuries occurring on or after the proclamation day. The new entity responsible for the handling of disputes related to statutory entitlements will be the Dispute Resolution Directorate combining the existing functions of conciliation and review into a seamless process of conciliation and arbitration. Arbitrators who are legally qualified will hear disputes, and if conciliation is not successful they will continue with an arbitration process. This will significantly reduce the problems associated with the current system when cases are adjourned numerous times in conciliation only to result in further delays when the matter is referred to a review officer for a review hearing to be arranged.

The new streamlined process incorporates a unified first tier of arbitrators, with a compensation commissioner to hear certain appeals on matters of law. The Bill will ensure the authority of the decision-making powers of arbitrators, and the commissioner will limit the capacity for appeals on technical grounds. Any appeal to a superior jurisdiction will be only by way of leave from the commissioner. In terms of matters already in the system, appropriate transitional provisions are included to enable all existing disputes to be progressed using the new procedures. In terms of process, conferences will continue to be conducted on an informal basis. A head of power will provide for practice directions and rules to establish clear guidelines for conciliation and arbitration. These will include requirements for filing of applications, content for written determinations and other procedural matters. This will ensure that all parties are prepared and information necessary to support the case is submitted and available to all parties at the commencement of the proceedings. Unfortunately, in the current system cases are often protracted because a party submits late evidence or is unprepared, thus delaying the process. There will also be enforced timelines and mechanisms for the effective disposal of minor claims. Due to the problems in the current system when parties withhold crucial medical evidence, under the reforms no legal professional privilege will be able to be claimed for medical reports.

Since 1993, legal representation in respect of compensation matters has been restricted and many workers have been disadvantaged by not having access to professional legal assistance. To ensure fairness and equal access to the dispute resolution system, the participation of legal practitioners and registered agents at all levels will be reintroduced, subject to a fixed service and fee schedule. This schedule will be structured to achieve an early resolution of disputes. The fee structure will affect all parties, including legal practitioners and registered agents, such as advocates and union representatives. Any agreement in excess of the scale will be void. Workers who are not legally represented will be allowed disbursement costs.

Medical assessment panels will continue to operate in the statutory system only to determine questions on the nature and extent of a worker’s injury and his or her capacity for work. Medical assessment panels will continue to determine questions on referral from an arbitrator for injuries sustained prior to the amendment day in relation to the discontinued schedule 2 regime and prior to the date of proclamation in relation to the assessment of disability under the existing common law scheme.

To address concerns raised by parties about the operation of medical assessment panels, the Dispute Resolution Directorate will ensure an objective process for the selection and participation of medical practitioners. These panels will also have protocols developed for the consideration of video evidence and the constitution of panels when female


workers are examined. Section 66 of the Act will be amended to clarify the maximum number of referrals of workers by insurance companies to medical practitioners for medical opinions, which is the number prescribed in the regulations. To ensure that a high quality service is provided to parties in the system, complaints against a legal practitioner or registered agent will be managed by the director, either by referring the matter to an appropriate body if the complaint is against a legal practitioner, or by being actioned by the director if the complaint is against a registered agent.

Injury management: Assisting the worker to return to work is a fundamental objective of our workers compensation system. The purposes of the Act have been amended to include reference to “return to work” and “management of worker’s injuries”. These terms introduce to the legislation the concept of “injury management”, the main premise of which is a return to work philosophy. This replaces the current definition of “rehabilitation”, in which the outcome is defined as restoring a worker’s capacity for gainful employment.

The legislation will define injury management, which is recognised Australia-wide as those management processes with a workplace focus that are aimed at returning injured workers to work and includes, where appropriate, vocational rehabilitation. This change is important because there is now a clear focus on return to work as an outcome. Secondly, the emphasis on injury management means that all activities undertaken by an employer from day one in managing the injury in conjunction with the treating medical practitioner are recognised as an important part of the process to achieve return to work outcomes.

The functions of WorkCover WA will be amended to shift the emphasis from the promotion of rehabilitation to the broader injury management concept. New functions will enable WorkCover WA to provide an injury management mediation service for parties in the workers compensation system, as well as information to arbitrators on injury management questions. A head of power will be introduced for injury management regulations to be made. From time to time WorkCover WA will be able to publish an injury management code of practice, including injury management guidelines, in the Government Gazette. The code will have the status of subsidiary legislation. The intent of the code is to make provisions for the principles underpinning injury management that must be followed, and includes guidelines that provide guidance on the establishment, content and implementation of injury management systems and return to work programs. It is not intended to be prescriptive as it is recognised that many employers have developed successful intervention programs. The legislation will provide that, in response to medical evidence from a worker’s treating medical practitioner, the employer will be required to establish a return to work program in accordance with the code. If requested to do so by an employer, the employer’s insurer will be required to discharge the employer’s obligation to establish an injury management system and/or return to work program in accordance with the code or to assist the employer to do these things.

Mechanisms to facilitate early identification of the need for intervention form an important part of the legislation. The amendments will require WorkCover WA to review the status of all injured workers at four weeks to determine whether there is a need for the employer to review the need for injury management intervention, which may also include the need for a referral for vocational rehabilitation. Section 84AA will be amended to require any employer who intends to terminate the employment of a worker referred to in section 84AA(1) to notify the worker and WorkCover WA of that intention no fewer than 28 days before the day on which it is intended that the termination take place. The notification will not, however, in any way affect employers’ requirements under any other legislation.

The name of the Act will be changed to the Workers’ Compensation and Injury Management Act 1981 to reflect the shift in focus from rehabilitation to injury management.

Common law: The Bill addresses the current absence of real choice and certainty for workers and the pressure on them to make an election to pursue common law damages within six months of injury when in many cases their condition has not stabilised. It also deals with the problem of delays and uncertainty in determining whether a worker meets the threshold for access to common law. The introduction of a threshold system based on impairment rather than disability will ensure greater consistency in decisions, and will bring Western Australia into line with other Australian jurisdictions.

The new process for accessing the common law system will require an election before the termination day, which has been extended to 12 months from the date a claim for weekly payments is made by a worker on his or her employer. This date is easily able to be identified and will reduce any confusion about when the 12-month period should start. The existing wording has led to disputes over the meaning of commencement of weekly payments. The new mechanism for calculating the termination day is intended to ensure that workers are not denied access to the common law system because of technical disputes about the date from which the termination day is calculated. Any worker who does not elect within the 12-month period will remain eligible to receive the benefits of the statutory compensation system to which he or she is entitled, but will automatically forgo any common law entitlement. In order to ensure that workers are aware of the election requirements, an employer will be required to notify each worker about six months before the termination day. Election to pursue common law damages will continue to be irrevocable.

The election period has been increased to 12 months to help ensure that a worker’s condition has stabilised before requiring a decision to pursue common law damages. An extension of the time to elect for up to a one-year period may


be granted to the small number of severely injured workers who have evidence from an approved medical specialist that their condition has not stabilised. Extensions also may be given if the director is satisfied that the employer failed to notify the worker in accordance with the Act of the date and importance of the termination day six months before the termination day, or an AMS requires more time before being able to assess the worker or the worker has requested an assessment but the AMS has not produced the certificate in the prescribed time frame.

Access to the common law system initially will require either a worker and employer reaching agreement that the worker’s degree of whole of person impairment, or WPI, is at least 15 per cent, or the worker obtaining an assessment from an AMS of the worker’s choice that indicates that degree of impairment. Such agreement or assessment will be recorded by the director only if the worker requests in writing that the director do so. The election must be made in accordance with the time frames set out in the legislation and cannot occur unless the director has, at the written request of the worker, recorded the agreement or assessment mentioned above. The provisions clearly state that the worker has to choose whether to have the director record a particular agreement or assessment. The worker may choose to have recorded a second assessment obtained by the worker, rather than a first assessment.

The current 16 per cent disability threshold has been reduced to a primary WPI threshold of at least 15 per cent WPI. The enhanced statutory framework will give workers who do not reach the 15 per cent threshold a more attractive option for pursuing a lump sum payment or remaining on weekly and other benefits up to the prescribed amount, which may be extended by up to 75 per cent when the worker has suffered a permanent and total incapacity. As mentioned earlier, the benefits of the statutory system have been significantly enhanced to ensure a better balance between the statutory and common law systems. As a result, it is anticipated that more workers will remain in the statutory system, which is focused on helping them return to work and get on with their lives.

Workers with an AMS impairment assessment or an agreement that they have at least 15 per cent, but less than 25 per cent, WPI who elect to pursue common law will have their weekly payments stepped down after the election registration day to 70 per cent for the first three months, and 50 per cent for the following three months. Under the existing system, weekly payments cease once the worker makes an election, when the degree of disability is not less than 16 per cent but is less than 30 per cent. The step-down provision is calculated as a percentage of the amount of weekly payments to which the worker is entitled, which may vary after election if there is a change in the worker’s entitlement to weekly payments. If the worker had no entitlement to weekly payments at election, no further benefit would be paid. Workers with a WPI of at least 25 per cent who elect will continue to receive all statutory benefits to which they are entitled, which reflects the current situation that applies to workers with a degree of disability of not less than 30 per cent.

Common law cases will be repositioned within the District Court system, thereby providing a well-established legal framework to hear disputes on negligence. Appropriate transitional provisions will enable the Dispute Resolution Directorate to hear disputes about the degree of disability under the existing common law scheme; however, they will be subject to the dispute process included in the Bill.

Upon the worker receiving notification of the registration of the election, he or she will be required to lodge a writ within 30 days or in accordance with the District Court rules. An employer may not dispute the worker’s assessment until the matter is dealt with in the District Court. When no agreement is reached between the parties in the District Court on the degree of WPI, employers may require a worker to attend an examination by an AMS for the purposes of obtaining an assessment. When this is the case, the assessment may be obtained only from a specialist on the register of approved medical specialists.

There will be a cap on the amount of damages that can be awarded when the WPI is less than 25 per cent. The existing cap applies to a degree of disability of more than 16 per cent but less than 30 per cent. The amount will continue to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that can be awarded. There will not be a cap on the amount of damages that can be awarded when the WPI is 25 per cent or more.

The new common law provisions will apply to any cause of action that arises on or after the day on which the new common law amendments come into operation. Any cause of action that occurs before this time will fall within the existing common law scheme. The evaluation of a worker’s degree of permanent whole of person impairment will be based on the injury or injuries arising out of a single event as defined in section 5 of the Act. This is to ensure that injuries that do not result from a single event are not combined in the evaluation of whole of person impairment. This reverses the decision of Girrawheen Tavern v Joseph [2003] WASCA 244, in which the Supreme Court found that a worker who had received distinct injuries on different days with the one employer could aggregate those injuries in assessing the worker’s degree of disability for common law purposes.

Secondary psychological, psychiatric and sexual conditions that may arise as a consequence of an injury will not be included in the assessment of impairment, but may be taken into account in an award of damages. The assessment of these conditions is contentious and subjective on the degree of impairment that may be attributed to the work-related injury. The assessment will not preclude such conditions when these conditions are a primary consequence of a work-related accident. An example is a stress condition experienced by a bank teller as a result of a hold-up. The preclusion of a secondary condition being taken into account will not apply to a schedule 2 impairment evaluation.


A special evaluation may be undertaken for common law purposes if an approved medical specialist has certified that a worker’s condition has not stabilised and the worker has already obtained two extensions to the termination day. This will enable the worker to make an election to pursue damages at common law before the extended termination day has expired, therefore enabling the worker to commence court proceedings. A special evaluation must also be made for the purposes of applying for a further additional sum under clause 18A. Such an evaluation will be necessary for this purpose due to the fact that one of the exceptional circumstances will be that operative intervention will result in further improvement of the worker.

An evaluation of impairment certificate provided by an approved medical specialist or approved medical specialist panel will be relevant only for the purpose for which it is given. For instance, a certificate given for the purposes of accessing the common law system cannot be given or used for the purposes of applying for the additional medical expenses under clause 18A. There are several reasons for this preclusion: firstly, special evaluations may be made for common law purposes to enable the worker to make an election before the extended termination day expires, but only under certain circumstances and subject to certain time frames. By contrast, although an evaluation for the purposes of clause 18A will be a special evaluation, this is due to the unique nature of the exceptional circumstances criteria, which must be met for that entitlement and is not subject to the other circumstances and time frames, which will apply to a special evaluation for common law purposes.

Secondly, evaluations made by an individual approved medical specialist will not be binding, whereas an evaluation made by an approved medical specialist panel will. Approved medical specialist panels will be used in the statutory system to assist in resolving disputes by making final and binding decisions about a worker’s degree of impairment. However, the panels are not used for common law purposes, as all disputes will be handled in the District Court. Therefore, it would not be appropriate for an evaluation made by an approved medical specialist panel for statutory purposes to be binding for the purposes of part IV subdivision 3. Thirdly, any secondary condition is to be disregarded in any impairment evaluation for the purposes of part IV division 2 subdivision 3, part IXA or clause 18A, whereas it is not disregarded in an evaluation for the purposes of part III division 2A.

Specialised retraining program: A new entitlement will be created of an amount equal to 75 per cent of the prescribed amount for a specialised retraining program for certain workers in relation to whom it is agreed or determined that the worker has a whole-of-person impairment of at least 10 per cent but less than 15 per cent; and the worker meets all the retraining criteria. This entitlement is intended to assist the small number of workers who would not meet the proposed 15 per cent impairment threshold but would meet the above requirements. The retraining criteria will be rigorous and will include the prior completion of a return to work program that has not been successful and a high expectation that the training program will provide the worker with the skills that will be successful in returning them to work. If there is no agreement between an employer and a worker that the worker satisfies all the criteria, a specialised retraining assessment panel must be convened. The decision of the panel is final and binding on all courts. The entitlement will enable a worker to undertake formal vocational training and/or study through technical or tertiary institutions or training courses of no longer than three years duration. The entitlement will include a weekly retraining allowance, and reasonable course fees.

Subject to the weekly retraining amount not exceeding a worker’s pre-injury earnings, the regulations may prescribe how these funds are to be apportioned and when they should be paid, including the rate of the weekly retraining allowance. To participate, the worker must sign an agreement with WorkCover WA. The ongoing payment of entitlements will be at the discretion of WorkCover WA, based on the worker’s demonstrated performance in the specialised retraining program in three-monthly reviews. Should the worker settle the claim through payment of a statutory lump sum, the worker’s further entitlement under the SRP will cease.

Dutch decision: Decisions of the Supreme Court, including Re Monger; ex parte Dutch and Ors [2001] WASCA 220 and Re Monger; ex parte WMC Resources and Anor [2002] WASCA 129 (“WMC resources decision”) have set precedents with unintended consequences for the operation of the current provisions of section 93D of the Workers’ Compensation and Rehabilitation Act 1981 - “the Act”. These decisions overturned determinations by the director of the Conciliation and Review Directorate to accept certain medical evidence as satisfying the requirements of section 93D(6) of the Act. The collective effect of the Dutch and WMC Resources decisions is that some injured workers who are claiming they have a disability and who sought to refer a question under section 93D(5) may be unable to progress their referral due to the Full Court’s interpretation of the requirements of the director in regard to “medical evidence”. The purpose of the amendments is to allow certain workers who have become or may become disadvantaged as a result of the Dutch decision and others by having the referral dismissed by a review officer or overturned by a superior jurisdiction, to be able to progress their referral subject to them referring a new referral of the same question and producing fresh medical evidence that complies with the requirements of section 93D within certain time limits.

This will enable such workers who subsequently obtain a determination or agreement that their degree of disability is not less than 16 per cent to make an election pursuant to section 93E(6). Such workers who subsequently obtain a determination - or agreement - that their degree of disability is not less than 30 per cent will be able to pursue common law damages. One of the criteria workers will need to meet for lodging a new referral will be that the worker originally sought to refer the same question on or before 30 September 2001. Referrals lodged up to this time, which was two


months after the Dutch decision was issued, may also have been supported by medical evidence that failed to meet the medical evidence requirements of section 93D(6). It is considered that after this time, workers and medical practitioners should have become sufficiently aware of those requirements in light of the Dutch decision. A new referral and supporting fresh medical evidence - if not already lodged - must be lodged with the director within three months after the day on which the part of the Bill commences or, if a superior jurisdiction overturns a decision of a review officer that dealt with the substance of the question, within three months from the date of the decision overturning the review officer’s determination. The retrospective application of these amendments will enable certain affected workers to progress referrals of questions, seeking a determination or agreement on their degree of disability for the purpose of pursuing damages at common law.

Hewitt v Benale decision: Another court case with unintended consequences is the Supreme Court decision of Hewitt v Benale. The Government will address the problems arising out of the Supreme Court’s interpretation regarding the application of section 175. The court found the provisions of section 175 deeming certain persons to be an employer extend to all provisions of the Act, including the requirements on seeking damages at common law. It is not intended that the common law restrictions on an employer be extended to a deemed employer; namely, the principal, under section 175. It has long been understood that the provisions of section 175 are confined to the statutory system to protect workers employed by a contractor in the event the contractor is not insured for workers compensation by making the principal jointly and severally liable for the contractor’s workers.

Amendments will be made to provide that a worker will not be constrained from seeking common law action against a principal and the provisions of part IV, division 2 do not apply to the principal, even though they could be deemed an employer under section 175 of the Act. This will operate prospectively only if the injury or cause of action arises on or after the day on which the new common law changes come into operation.

Restructure of commission: To ensure the efficient operation of the workers compensation system, amendments based on the Cooke report are introduced to restructure the Workers’ Compensation and Rehabilitation Commission. These will provide for greater administrative responsibility and accountability of the new governing body and ensure independent advice is provided to the Government on matters relating to workers compensation. In addition, the governing body will ensure diligence and discipline among service providers to achieve greater efficiencies. Functions will include responsibility for premium setting with an emphasis on a mechanism that balances the interests of employers and insurers on issues relating to loadings, notification and appeal processes.

Due to the significant reduction in workers compensation benefits introduced by the previous Government in 1999, over the past three years profits in excess of the range set by the premium rates committee were achieved by insurers. The Government considers some element of these profits should be applied to meet the impact upon claims costs of statutory entitlement increases contained in the Workers’ Compensation Reform Bill 2004 applying retrospectively to claims in the workers compensation system at the time of proclamation of that part of the Bill.

The Government has determined the Bill will have a transitional provision enabling the minister to direct the WorkCover WA governing body to exclude any cost or provision directly related to claims affected by the Dutch decision and the transitional costs associated with retrospective increases in statutory entitlements in the Bill for claims in the workers compensation system at the time of proclamation in the future fixing of the recommended premium rates.

Administrative changes: A number of administrative processes have also been reviewed to ensure the effective administration of the system and to include the definition of “chiropractor” being amended to remove the requirement for the Workers’ Compensation and Rehabilitation Commission to approve chiropractors. This is no longer necessary as the Chiropractors Registration Board now ensures suitably qualified chiropractors are registered in this State. A head of power will be introduced to ensure medical practitioners who issue more than one medical certificate comply with regulations governing the operation of the workers compensation system; for example, the requirements of an injury management code of practice. The Bill provides a general offence provision within the Act and head of power for WorkCover WA to influence insurer and self-insurer performance through fines and penalties. WorkCover WA will have an option to issue infringement notices against insurers and self-insurers with a modified penalty dollar amount prescribed in regulation.

Summary: This Government firmly believes a workers compensation system must be fair and must balance the rights of injured workers against the need for competitive, stable and affordable premiums for employers. Our reforms will help re-establish a fair balance between these interests and will also establish a better balance between the statutory benefits and common law parts of the workers compensation system. Amendments that improve the flow of statistical information between WorkCover WA and the WorkSafe division of the Department of Consumer and Employment Protection will also assist in improving occupational safety and health in Western Australia.

The Workers’ Compensation Reform Bill reflects the Labor Government’s commitment to the establishment of a fair, efficient and sustainable workers compensation system in which injured workers are more adequately compensated and assisted to return to work and employers have affordable and stable workers compensation premiums. I commend the Bill to the House.

Debate adjourned, on motion by Mr W.J. McNee.


ARCHITECTS BILL 2003 Second Reading

Resumed from 26 November 2003.

MR R.F. JOHNSON (Hillarys) [1.00 pm]: I first want to make it clear to the minister and the Government that the Opposition supports the Bill.

Ms A.J. MacTiernan: So that means you will be talking about it for only four hours!

Mr R.F. JOHNSON: No. I will reduce it to about two and a half hours. I want to keep the debate brief. I give that commitment, Mr Acting Speaker. I have already told the minister that if I keep my speech to about 10 minutes, there may be a little debt that she may want to repay me later in the day.

As I said, we support the Bill. The process that led to the introduction of this Bill began when I was the Minister for Works and Services. It was during my time as minister that the concept of the Bill was floated. I had many meetings with members of the Architects Board of Western Australia and people in the industry, and I gave a commitment that I would support a Bill of this type. That is the reason that I do not intend to deliberate on the Bill for too long.

I will now comment on a number of the things that the minister said in her second reading speech so that the minister will know that I do read what she says - all the time, in fact. The Bill will ensure that people who fraudulently claim to be architects are investigated by the board. That is very important. People in Western Australia who want to employ someone to design their house have several options. They can go to either an outline planner or an architect to get that job done, hopefully with the guaranteed knowledge that people who call themselves architects are fully qualified. That is not to say that people who are not fully qualified architects cannot design homes and buildings for people. However, if people want extra assurance, we hope they will get that by employing an architect.

It is interesting that the second reading speech states that the composition of the Architects Board of Western Australian is proposed to be broadened to include adequate consumer and educational representation in line with national and state review recommendations. It is important to have consumers on these types of boards, otherwise it will be a case of Caesar judging Caesar, which is not a good thing. I am pleased that the Bill will provide enhanced consumer protection by incorporating a new procedure for hearing and determining disciplinary matters with the establishment of the State Administrative Tribunal. That is very important. If people are aggrieved about the services of an architect, there must be an independent umpire somewhere down the line who can make decisions about whether they have had value for money. Before that disastrous day in February 2001 when the Government changed -

Ms A.J. MacTiernan: You mean the end of civilisation as we know it!

Mr R.F. JOHNSON: Before that day in February 2001, when this State was under really good governance, we made a commitment - I certainly made a commitment as minister - that we would support this type of Bill. However, concerns were raised about how such a Bill would be dealt with under the national competition policy guidelines. There is a place for national competition policy guidelines. However, they are not the be-all and end-all. We should not be dictated to on national competition policy guidelines that are not necessarily in the best interests of Western Australia. Our first priority should always be - as it certainly was under the previous Government, and as I hope it is also under this present temporary Government -

Ms A.J. MacTiernan: I did not think you had the same born-to-rule complex as the Leader of the Opposition, but obviously you do.

Mr R.F. JOHNSON: I have somewhat of an inferiority complex about the minister, because I feel bullied whenever she really has a go at me, so I will be very temperate in the words that I use. My knees start to shake whenever the minister interjects on me, because the minister can be very cutting in her remarks. The minister and I did have a chat before I started to speak, and the arrangement was that I would not the delay the Bill, and the minister would be equally generous to me at a later stage - perhaps even during this day’s sitting. I am sure we will stick to that arrangement, because I keep my word, and I am sure the minister keeps her word.

I will return to the Bill, because it is most important that we talk about the Bill before the House. As I have said, the most important people are the consumers. They are more important than the architects, house designers and project designers because they are the ones who pay for these services to be carried out. I suggest that many consumers would gain great comfort from knowing that the people who claim to be architects have taken the time and effort and have made the commitment to become fully qualified. They are to a large extent considered to be on the same level as lawyers, doctors and other people who have taken a great many years to gain their qualifications. In essence, those people should be more competent than people who design houses as a sideline and may think they know how to design but may not know all the pitfalls that architects obviously need to know.

I will not be proposing that we move into consideration in detail to discuss the Bill clause by clause, because I am more than happy with the clauses. I will be more than happy to facilitate the passage of the Bill through this House as quickly as possible so that it can reach the other place expeditiously. I am confident that the Bill will not take a lot of


time in the other place, because the Opposition does not oppose the Bill in any way. We support the Bill. I hope the Bill will be proclaimed at the earliest possible opportunity so that people in Western Australia will know that when they have their house designed by an architect, that person is fully qualified. Other people will still be able to do the job, if they wish to do so. It will be up to the consumers to say whether they want a qualified architect or somebody who is not necessarily qualified. The benefit of this Bill is that people cannot call themselves architects unless they are fully qualified. I hope that the board will keep a watchful eye over its members in this profession to ensure that the best possible service is given to the people of Western Australia on their housing and development projects.

I say to the minister that I am looking forward to her lengthy response to the comments I have made. I am sure they will be very interesting and amusing. We will conclude this Bill as soon as the minister finishes her response.

MS A.J. MacTIERNAN (Armadale - Minister for Planning and Infrastructure) [1.10 pm]: I thank the member for Hillarys for his fulsome support for this legislation. I note once again that he was gunna do it while he was the minister in charge; but, gosh, there were so many grapes to crush, so many boats to row and so many sewers to examine that I guess it was just not possible. However, we are glad that we have now been able to bring the Hilmer report on national competition policy to a conclusion and to satisfy yet another one of our national competition requirements.

I agree with the member that competition should not be seen as a god and an end in itself, but as a tool for a better, more effective economy that can produce better outcomes for the community. I have been a critic of some of the excesses of competition policy. However, I do not think anyone would deny that the modernisation of our economy, which began with the Hawke-Keating Government, has been a very positive development. There have been some areas of excess, but generally speaking it was a much needed modernisation of the Australian economy, and one that I believe has benefited us all.

Mr R.F. Johnson: I think the one problem with the Hilmer report on national competition policy is that he did not look in any way, shape or form at competition policy in industrial relations. That was a big fault of the Hawke-Keating Government of the day. It should have taken that on board.

Ms A.J. MacTIERNAN: The Hawke-Keating Government had other creative and imaginative ways of dealing with that. It is interesting that the degree of workplace change that occurred under that Labor Government was tremendous. Labor Governments have demonstrated that they are able to get sustained change because they manage change fairly. The trade union movement and the working men and women of Australia have confidence that under a Labor Government there will be a proper balance between the interests of capital and labour. Ironically, sustained change is more likely to occur under a Labor Government.

The Government thanks the member for his support. We are pleased for the architectural profession that we have been able to modernise its legislation, to recognise the important skills that architects have and to ensure that they are properly recognised and protected - protected not in the sense that no-one else can do their work, but in the sense that people who are not properly qualified cannot hold themselves out to be architects. Proper processes are in place now to provide disciplinary procedures. They are very important. I certainly believe that there should be similar provisions in other professional areas. I am thinking about some of the concerns that I have about conduct by various engineers in certifications of footing designs, which is an absolute scandal, and the collusion and the heartbreak that has affected many of my constituents who have had completely inadequate homes built. The building of those premises was made possible by engineers who signed off on footing designs without ever having examined the site. Unfortunately, there is no equivalent of the Architects Board to which we can take those engineers to have their conduct examined.

Some very good structures are in place in this legislation that will offer protection for the community and professional certainty for architects, but within a modern framework. I thank the member for the Opposition’s support for this legislation.

Question put and passed.

Bill read a second time.

Leave granted to proceed forthwith to third reading.

Third Reading

Bill read a third time, on motion by Ms A.J. MacTiernan (Minister for Planning and Infrastructure), and transmitted to the Council.

CIVIL LIABILITY AMENDMENT BILL 2004 Second Reading

Resumed from 6 April.

MR D.F. BARRON-SULLIVAN (Mitchell - Deputy Leader of the Opposition) [1.17 pm]: The Liberal Party will support this legislation, as we have supported any legislation that the Government has brought before this Parliament which we have considered to be reasonable and which will have the effect of reducing the problems with the availability of insurance in this State, particularly public liability and professional indemnity insurance. From time to time we have


been critical of the Government for not moving quickly enough on these matters, and we have raised the matter a number of times in Parliament, whether it be about public liability insurance, housing indemnity insurance, professional liability insurance or any other area of insurance. I believe we have done that in a constructive way. We have criticised the Government for being slow off the mark. However, when it has eventually brought legislation into this Parliament, we have worked in a positive way with the Government to try to get the best possible result for the broader community of Western Australia. Our approach to this Bill will be no different.

I will set the scene a little for our discussion on this legislation by indicating that although we support this Bill, we are not particularly happy with the Government’s approach to insurance matters overall. I suppose it is quite relevant, as we approach the budget for this coming financial year, to look at how this Bill sits in relation to the Government’s fiscal approach to taxation on insurance matters. Bearing in mind, as the parliamentary secretary has said numerous times, that the Government is bringing in a range of measures, ostensibly aimed at tackling the insurance problems in this State and contributing towards a national solution to the various problems in various areas of insurance, and bearing in mind that the Government has lauded the fact that it has a comprehensive approach across the board to such insurance matters, I want to highlight one matter, to start with, that needs to be addressed in tomorrow’s budget. That matter relates to stamp duty on insurance policies. This legislation will provide measures, which I will go into in more detail shortly, that, as the parliamentary secretary said in his second reading speech -

. . . are intended to slow the rate of increase of insurance premiums and make public liability and indemnity insurance more readily available.

There is, of course, one way to slow the increase in insurance costs and to reduce insurance costs in some circumstances. The Government could curtail the growth in stamp duty revenue and reduce the stamp duty impost on individuals, householders, home owners, motorists, businesspeople and community groups and sporting associations throughout the State. The 2003-04 Budget Economic and Fiscal Outlook, which was produced as part of last year’s budget papers - it will be interesting to see the figures in this year’s budget papers - shows that the story with regard to stamp duty is not good at all. Table No 1 on page 192 of that document details the operating revenue for the general government sector. Under the heading “Taxation”, which lists all the different tax components in the state budget, it can be seen that taxes on insurance now constitute the third highest taxation measure in the Labor Party’s budget strategy - if I can call it that. Members all know that payroll tax is the big revenue earner; it accounts for almost a third of state taxation. It sits at a little over $1 billion in the 2003-04 budget estimates. I doubt that that figure has reduced much throughout the year. The second highest taxation revenue is a group of taxes such as stamp duties on financial and capital transactions. That, of course, includes stamp duty on conveyances, transfers, mortgages and so on. The stamp duty on conveyances and transfers is worth well over $800 million. Coming in third place, with a whopping great big $330 million - I repeat, $330 million - is taxation on insurance. The stamp duty on insurance policies alone contributes $289 million to the State Government’s coffers. To put it bluntly, that is $330 million of direct cost that must be borne by home owners on household insurance; by motorists on car insurance; and by small businesses on every aspect of business insurance, whether it is property, professional liability, professional indemnity insurance or whatever. Of course, the tab is picked up by community associations and sporting groups throughout this State. It is incredible to think that the taxes on insurance raise more money in this State than taxes on gambling. It says something when the Government imposes more taxes on people who wish to do the right thing by insuring their properties and acting in a responsible way than it imposes on people who wish to gamble at the casino or bet at the TAB or whatever.

In addition, stamp duty on insurance raises more revenue than all the property taxes. All the property taxes, including the metropolitan region improvement tax, raise about $129 million, compared with $330 million that is raised for stamp duty on insurance matters, which raises even more for the Government than does stamp duty on vehicle licences. Surprisingly - I did not realise this - stamp duty on insurance costs to the Western Australian community raises even more than the total amount of revenue raised from motor vehicle registrations. Insurance taxes amount to $330 million, whereas taxes on motor vehicle registrations amount to $290 million.

It can be seen that the scope for any direct cost relief, or the scope indeed for a Government to keep to a minimum any increase in insurance costs, is very tangible. If the Government had wished to do so in its previous budget, it could have kept insurance costs down by refusing to allow a blow-out in stamp duty on insurance premiums. What is the Government’s record in that respect? Has it kept a clamp on stamp duty on insurance premiums or has the opposite occurred? It is no surprise that an examination of the situation from the 2000-01 fiscal year through to the current financial year shows that total taxes on insurance have been increased by nothing short of 51 per cent. That is a massive $112 million increase in taxation on insurance policies and other insurance matters. The amount of stamp duty on insurance policies alone has increased by a staggering 85 per cent. In 2000-01, the state government budget estimated revenue of almost $156 million from stamp duty on insurance policies, and the Labor Party blew out that figure, particularly in its first budget but also in successive budgets, by a staggering 85 per cent.

It is easy to see that total taxes on insurance policies have increased from $156 million to $289 million, which is an increase of $133 million. The Government has not put its money where its mouth is when curtailing increases in insurance costs. Putting it bluntly, recently the Commonwealth Government introduced measures to reduce insurance costs for doctors and specialists. That was a direct tangible benefit for people involved in the medical profession. On


the other hand, in Western Australia the Government has been prepared to pocket an extra $133 million in stamp duty on insurance policies while at the same time professing to care about the plight of small business community groups and sporting associations and others. They have experienced a huge increase in stamp duty costs.

Mr R.C. Kucera: You are misleading the House, member for Mitchell.

Mr D.F. BARRON-SULLIVAN: While we are dealing with tort law reform and legislative reform, it must be borne in mind - and the Government and the parliamentary secretary have acknowledged this - that the reforms we are dealing with today, which the Liberal Party supports and for which it has been pushing for sometime, will not have an immediate effect. I will touch on that later. An immediate effect would have been felt if the Government had taken the drip-feed out of its arm and had not imposed such a huge additional cost impost, particularly on the small business sector. It is interesting that the Minister for Small Business interjected a moment ago. I would have thought he would have gone to Cabinet and said that he did not want to see a continuing spiral in insurance costs. He should have told Cabinet that the Government had already hit the small business sector and others with a $133 million increase in stamp duty on insurance premiums and that the Government should do something about turning the tide and reducing the direct budget impact on insurance costs.

I wanted to put that on the record and point out that although the Government wants to make out that it is carrying out a range of reforms that will have a huge impact on the situation in Western Australia, where the Government can take action most directly and immediately, it has failed to do so. What effect does the blow-out in stamp duty on insurance premiums have for the groups, associations and businesses that are affected? The answer is very simple. As we are dealing with legislation that has relevance to the medical profession, I have picked an example from that sector. I note that the Australian Medical Association supports this legislation very strongly, and I have indicated that we also support it. However, I can assure members that the medical fraternity is extremely concerned by the substantial increases in stamp duty under the Labor Government. One example I have in front of me concerns a specialist obstetrician whose premiums have gone up in the past four years from $35 000, with a stamp duty payable of $3 500, to $53 000, $78 000 and $98 000. That means that that medical professional is now paying $9 800 in stamp duty on his medical insurance premium. That is a staggering increase in stamp duty from $3 500 to $9 800, and it represents a 180 per cent increase. Members can see how the Government has profited out of the misery of people in the business sector, medical practitioners, sporting associations and community groups throughout Western Australia. That is a very tangible and real example of how stamp duty premiums have been increased by 180 per cent. The Government might say that it is not responsible for the fact that premiums went up and that stamp duties are proportional on the premiums; therefore, it should not be blamed for all of that. However, the Government increased the rate of stamp duty, so it is directly culpable. As the base upon which a tax is calculated increases, there is nothing to stop the Government from reducing the rate in the dollar of a particular tax. If the Government had wished to keep the stamp duty costs on the medical fraternity down, it could have reduced the proportional rate of stamp duty on those respective premiums. There we have it: the Government is directly responsible for a $133 million blow-out in stamp duty costs on insurance premiums. In that one example alone that I have raised - I could have raised numerous such examples - we can see that the Government’s inaction and conscious decision to increase the rate of stamp duty have led to a 180 per cent increase in the stamp duty payable on that particular professional’s insurance premium.

In his second reading reply, I would also like the parliamentary secretary to give some indication of what the Government is doing to make sure that the insurance companies do the right thing and pass on the savings created by the sort of legislation we are now looking at, and, indeed, the provisions that have been passed through this Parliament previously. I say that because, as I alluded to earlier, the parliamentary secretary has stated that the measures in this legislation -

. . . along with other initiatives the Government has already taken, are intended to slow the rate of increase of insurance premiums . . .

The parliamentary secretary is not saying that the Government thinks that premiums will come down as a result of this, but that it will slow down the rate of increase and so on. People in the private sector want some specific details about that. It would be interesting to see whether the Government has done any research on what has happened to insurance premiums in particular areas. Certainly, anecdotal evidence suggests that insurance is now perhaps more available. There is not too much evidence of premiums coming down, and certainly we see premiums continuing to creep up in certain areas. However, the key question is - this is something that was raised in debate on previous legislation to do with public liability insurance - what will the insurance companies do now and how long will it be before we see a direct impact on the premiums that are being paid throughout the community? An article in The West Australian some time ago stated that a representative of the Insurance Council of Australia Ltd (WA) said that -

. . . the law reforms . . . had already stabilised WA’s insurance industry.

I would say that, in some areas, that is probably correct. Whether it is due solely to the legislation that has gone through the Parliament, to a flattening out of the cyclical effect on the industry or whatever, it would be interesting to get the parliamentary secretary’s thoughts on that. However, the insurance council’s representative went on to say in that article -


It’s certainly had an effect on the availability of insurance.

I would certainly agree. He continued -

I also think that it’s reasonable to say that as the claims start to reflect the changes in the reforms, that should start to be reflected in the premiums.

But these claims take five to seven years to see through, so at the moment we are dealing with claims from the late 90s and . . . these cases are not subject to the revised laws. They will have to go right through the system and be dealt with.

I read between the lines that the insurance council of WA is saying it could be up to seven years before we see the benefit of this sort of legislative reform in reducing insurance premiums. However, interestingly, in the same article it states that the -

. . . chief executive of Vero, an arm of Promina, said the WA legislation had brought the State into line.

Of course, those are the reforms the Liberal Party had been talking about for quite some time and pushing the Government to pursue as well. The article states that he went on to say -

NSW reforms had been put in place a year earlier and insurance premiums there would start to fall earlier . . .

That is an interesting point. The Liberal Party has been saying ad nauseam that the quicker we can get this legislation and the civil liability reforms through this Parliament, the quicker we will see a benefit in this State and a contribution to a uniform national solution to the problems. The Government dragged its heels, and I guess one of our main criticisms was just how long it took the Government to do anything about this matter, which has been confirmed by a player in the industry. In that article the chief executive said -

You start a policy today on liability and you might get a claim in a year and you might get it settled in two or three years time, . . . So any change in law today doesn’t impact for two to three years.

One person from the industry is saying that it could take up to seven years and another is saying that it could take from two to three years. I want to know what analysis the Government has carried out on the impact of the legislative change that has been put through this Parliament, and, quite frankly, when will the premiums be reduced, particularly in the small business sector? The chief executive to whom I just referred, Mr West, went on to say -

We are now seeing lower levels of increase but we are not, at this stage, and nor do we anticipate in the next 12 months, seeing reductions, . . .

He is now saying that it could be 12 months before we see reductions in premiums. The insurance council is hedging its bets and saying that it could take up to seven years, and a player in the industry is saying that the process takes another couple of years but we could see reductions in 12 months. I would like to see these comments quantified. I would like to be able to go to the small business sector and community organisations throughout the State and say, “Look, here’s some information. There is some hope on the horizon, a light at the end of the tunnel and we are going to see some premium reductions in the not too distant future.” I want to be able to explain to them that the measures we are taking in this Parliament, some of which have been quite tough, will be of direct benefit. I would also like to say to them that the Government is also going to curtail increases in its stamp duty impost on those sectors.

Turning to the legislation, there are two key areas in the Bill. The first is the introduction of a new evidentiary test for health professionals. I will leave it to the lawyers in this Chamber and in the upper House to go through the legal situation in some detail; suffice to say that at the moment, if somebody has a negligence claim against a medical professional such as a doctor, a surgeon or whatever, that matter can be dealt with in the courts. Quite simply, evidence is put up in support of a negligence claim and against it and the courts make a decision accordingly. As the parliamentary secretary pointed out in his second reading speech, the situation in the United Kingdom has been different for quite some time. In 1957 there was a court case called Bolam v Friern Hospital Management Committee. In that case the defendant or defendants acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular area. The court applied the test, which was the standard of the ordinary skilled man exercising and professing to have a special skill. For laymen such as I, essentially the court said that if a medical practitioner’s conduct was in accordance with accepted practice, or practice accepted by his or her peers in that field of expertise, that is a valid defence and an evidentiary test that would be used in such cases.

The situation in Australia is that in 1992 the High Court indicated that the Bolam test did not apply. The case of Rogers v Whitaker was alluded to in the parliamentary secretary’s second reading speech. I refer to a summary of the case. In 1984 Dr Rogers performed surgery on the right eye of Mrs Whitaker to improve its appearance and to restore more sight to the eye. She had been blind in the right eye since a childhood injury suffered when she was nine years old. After the operation Mrs Whitaker suffered sympathetic ophthalmia, which caused her to lose sight in her other eye, and as a result she became totally blind. Mrs Whitaker argued that she would not have gone ahead with the operation had she known there was a chance of developing that condition. Before the operation Mrs Whitaker had asked Dr Rogers a lot of questions and sought assurance that her other eye would not be affected by the operation. Dr Rogers did not warn


Mrs Whitaker of the possible complication of this condition, which has a one in 14 000 chances of occurring. The case was initially heard in the Supreme Court of New South Wales and then appealed unsuccessfully to the Court of Appeal of New South Wales and then appealed to the High Court. The High Court said that Dr Rogers was in breach of his duty of care in not warning Mrs Whitaker of the possibility that this condition could occur. Mrs Whitaker was awarded over $743 000 in damages. This is important: the court said that there was no question that Dr Rogers performed the surgery with the skill and care required. It was his failure to warn Mrs Whitaker of the possibility of this condition that was the issue.

That is important because it fits in with something in the parliamentary secretary’s second reading speech, in which the case is referred to. It is indicated that the Bolam principle that this legislation introduces will differ slightly from that which related to the 1957 case in the United Kingdom. The second reading speech states -

This modified Bolam principle -

That is the one that we are picking up in the Bill today -

will apply only to health practitioners whose profession is the subject of a statutory registration regime, -

They can be nurses, specialists, doctors and so forth, provided there is a statutory registration arrangement in place -

and will not apply to conduct in relation to informing a patient of the medical risks associated with proposed treatment or a proposed diagnostic procedure.

This Bill will extend the Bolam principle to the conduct of the doctor in the medical procedure, the diagnosis and the mechanical remedy, if I may put it that way, or surgery, but it does not apply to the advice that the doctor gives to the patient beforehand. A question I ask directly of the parliamentary secretary in response to the second reading speech is: if we were confronted with a situation that was exactly the same as that which Mrs Whitaker faced in 1984 and the matter was then the subject of court action, would the modified Bolam principle that we are dealing with in the Bill apply to Mrs Whitaker’s situation? My reading of the Bill is that it would not. In that case, Dr Rogers would still be found to be liable and Mrs Whitaker would still be awarded substantial damages. I suppose the very specific question relates to the fact that we are introducing this principle, but there is an exception in it, and that relates to the advice provided by medical practitioners. I want some further advice from the parliamentary secretary on whether that specific case would have been treated any differently had it been handled under the legislation as amended by the Bill. After all, the Rogers v Whitaker case is one that the parliamentary secretary raised specifically, I would suggest, as an indication of the need for change in this area as well as of what has happened legally.

Importantly, the Australian Medical Association is very supportive of this measure, as are we. We think it is one part of the jigsaw puzzle that is required to provide some relief to the medical fraternity in professional indemnity insurance matters. The quicker we can get this Bill through the Parliament, the better.

I mentioned the one exception relating to providing information. The Bill also exempts the giving of consent and provides that when a court might deem that a doctor’s assessment of or views on a particular matter are irrational, this legislative principle can be overridden. The advice that we have received from the parliamentary secretary’s office is that it is similar to the situation that has applied in the United Kingdom since 1998. In that respect we will be following the practice of the United Kingdom since that time. This principle will cover a range of health professionals; in fact, anyone whose profession is registered by statute. Importantly, that means that it will cover nurses, doctors and professionals in different specialist fields. The legislation also reiterates that the onus of proof remains with the plaintiff.

This is one of a number of measures aimed at achieving national uniformity with professional indemnity insurance and public liability matters. We sought and obtained advice on the state of play in the other States. It is interesting to see that the States are falling into line. Due credit must go to Senator Helen Coonan and to the federal Minister for Health as well for assisting - I think encouraging would be a diplomatic way of putting it - States to go down this path. New South Wales has specific legislation in this field, as has Queensland and Victoria. I understand that South Australia had legislation introduced on 3 April last year but it has not yet been passed. Tasmania and the Australian Capital Territory have similar legislation but the Northern Territory does not at this stage. To a significant extent there is uniformity in the approach to professional indemnity insurance in this field.

The Commonwealth deserves some special mention because although the Gallop Government is content to rip from the community an extra $133 million in stamp duty revenue from insurance premiums, the Commonwealth has stepped in and assisted the medical community directly. I have in front of me some information that was provided by Hon Tony Abbott and Senator Helen Coonan, the Minister for Revenue and Assistant Treasurer, dated December 2003, which deals with medical indemnity arrangements. Members will be aware that the Medical Indemnity Policy Review Panel was set up at a national level to look at that matter. The review panel made a range of recommendations on direct assistance, and the Commonwealth came to the party by providing financial relief in a number of respects to offset the blow-out in insurance costs. That in turn encouraged a number of professionals and so on to stay in the sector and to continue to provide services to the community. It went a little further. The press release they issued states that the Medical Indemnity Policy Review Panel -


. . . called on the states and territories to continue the process of tort law reform and the work on developing a scheme for the long-term care of the catastrophically injured.

As I said earlier, it is encouraging that the States have worked away on tort law reform. We are dealing with some of that today.

The third point on which I would like some advice from the minister is the activity at government level in Western Australia on planning or progressing this initiative for long-term care for seriously injured people. It is something that the Commonwealth Government has supported and encouraged over the months that have ensued since the panel made its recommendations. One thing that I have learnt quickly in this portfolio, and I am sure the parliamentary secretary would agree, is that although my emphasis is on the economic impact of tort law reform and these measures - a primary concern of mine is the plight of the small business sector and the various community groups that have been caught out - from time to time I must put on other hats. In my case I have become a lay lawyer. We also have to look at some health matters. I realise that that does not come directly under the parliamentary secretary’s portfolio and is perhaps being handled under the health portfolio, but I would appreciate some advice from the parliamentary secretary on what is being done in Western Australia in that regard. The panel recommended back in December 2003 that within 18 months a new working group be formed, which includes senior medical representatives, to consider the effectiveness of the recommendations made at that time, including further tort law reform and, if necessary, the feasibility of a doctor-owned monopoly medical insurer. That recommendation was adopted. The Commonwealth Government was prepared to look at the impact of tort law reform on the sector, and also at the feasibility of a doctor-owned monopoly medical insurer. I am interested to see how that pans out. The question I posed earlier was: what has the Western Australian Government done to assess the impact of its measures so far, and when does it think that the measures we are now dealing with might have some direct impact?

Australian Medical Association President Dr Bill Glasson put out a media release on 2 May, in which he states -

“Despite all the reform and goodwill, the adversarial court system is still undermining the security and affordability of the medical indemnity system in Australia.

“We still have two major problems.

“Doctors still do not have the confidence and security to stay in practice or to enter high risk specialties . . .

“And there is still no sign of decreases or even a levelling out in medical indemnity insurance premiums. Government subsidies are helping, but the actual premiums have not come down. This means doctors’ costs are still high and patients are paying higher gaps for their care.”

A few salient points can be gleaned from those comments. I am looking forward to the parliamentary secretary’s response to my questions, because I would like to know what else the Government is doing in this area. I have had discussions with the member for Murdoch, the shadow Minister for Health, who has done a great deal of work in this area. He has worked with the medical fraternity on some very positive ways to address these insurance problems. I want to know what else the Western Australian Government is doing. I realise that this touches on the health portfolio. However, we must wear a few different caps when dealing with indemnity insurance issues. The president of the AMA also confirmed what I said earlier; that there has not even been a levelling out of medical indemnity insurance premiums, let alone any sign of a decrease. We are looking to the Government to give some indication of its advice and when we might see some tangible benefits for this sector. The AMA media release also states -

“The adversarial court system that deals with medical negligence claims threatens the success of years of medical indemnity and tort law reform,” Dr Glasson said.

“A long-term care scheme would remove that threat.

“Such a scheme would be affordable and responsible. It would take away the blame game. It would restore justice.

If we are to fix the system, we need a cooperative effort involving all Australian Governments, the medical and legal professions, the insurance industry and the medical defence organisations. A long-term care scheme is commonsense. It would put fairness back into the system. I ask the parliamentary secretary to give us some advice on that. The AMA president referred to a lack of confidence. That goes back to what I was talking about with the Rogers v Whitaker case. One reason I would like some more information on this matter from the parliamentary secretary is that the Bill still provides exemptions. The advice we have received is that there will still be a great deal of uncertainty within the medical profession. As I indicated earlier, Mrs Whitaker found that she had a very serious problem in 1984 with an onset condition following surgery. From my cursory reading of this case and the advice we have received, it probably would not have been handled much differently under our laws, even after this Bill is enacted and assented to. There still will be a strong degree of uncertainty within the medical profession on indemnity matters. That is why we have been advised that there are still serious doubts that this one measure, on its own, will have a substantial impact on the indemnity insurance premiums of doctors and health professionals. We would have liked a far more extensive reform package. That is something the shadow minister has been talking about for some time. I leave it to the parliamentary


secretary to provide us with a lot more information during the second reading stage about what the Government intends to do to tackle professional indemnity insurance premium problems in this State and within the medical profession, and what it will do to pick up on the recommendations of the national Medical Indemnity Policy Review Panel, particularly the recommendations that were adopted by the federal ministers Hon Tony Abbott and Senator Helen Coonan.

The other major area covered by this Bill is proportionate liability. As members will be aware, the civil liability legislation that we previously discussed in this Parliament, which interestingly has not yet been proclaimed - I will touch on that in a moment - but which has passed through this Parliament, contained provisions to extend the concept and principle of proportionate liability. In a nutshell, the previous situation involving the principle of joint and several liability meant that when there was more than one wrongdoer and somebody wished to take on a party or parties, the plaintiff was likely to target the parties from which he thought he would achieve the greatest financial gain. Putting it bluntly, if a couple of people are at fault in relation to a matter and one of them has more substantial financial backing and resources or has better insurance, the claimant is more likely to target that person to get the best possible financial gain at the end of the action. That is not necessarily the fairest situation, but it is the result of the principle of joint and several liability that was in place at that time.

Debate interrupted, pursuant to standing orders.

QUESTIONS WITHOUT NOTICE GOVERNMENT TAXES AND CHARGES, REDUCTIONS

213. Mr C.J. BARNETT to the Premier:

I refer the Premier to his explicit pre-election commitment to not increase taxes and charges, which the Government has now broken three years in a row by increasing taxes by an average of $400 million every year on businesses and families in this State.

(1) Can the Premier confirm reports today of tax relief of around $133 million in the 2004-05 budget, which is far less than the total tax increases under his Government?

(2) Given that Western Australia is expected to receive a revenue windfall of an additional $231 million in commonwealth grants in 2004-05, will the Premier admit that his so-called tax cuts are just a cynical attempt to buy votes in a pre-election year?

Dr G.I. GALLOP replied: (1)-(2) In relation to this year’s budget, I urge all members of the House to wait until tomorrow when the Treasurer -

Mr C.J. Barnett: We don’t need to. I have already read about it.

The SPEAKER: Order, members!

Dr G.I. GALLOP: Mr Speaker, the people of Western Australia are interested in one thing: they are interested in what is in the budget and how it affects them. Tomorrow they will see a budget that is financially responsible and socially progressive, and that makes sure the infrastructure is being provided for economic development in Western Australia.

In relation to taxes and charges levied during the first three budgets of this Government, I remind the Leader of the Opposition that in the election campaign in 2001 the Labor Party made it very clear that it was going to put extra money into health, education and police services. A plan was put forward to fund that. We know what has happened with the Commonwealth Government in those three years and we know what happened following the first budget we brought down and the concealment from the people of Western Australia of certain commitments made in the budget - cynical concealment of the budget practices of the Liberal Party and the current Leader of the Opposition. We had to address that issue. We were open and accountable to the people about that, because we wanted to get the extra 1 000 nurses in the health system, the extra 500 teachers and the extra 145 police officers who have currently been added to the system. We will be adding to each of those areas in the budget that will be presented tomorrow. I will debate the Leader of the Opposition any day, any time on taxes and charges, and debate the priorities in this budget; the Australian Labor Party will come out well in front.

GOVERNMENT TAXES AND CHARGES, INCREASES

214. Mr C.J. BARNETT to the Premier: I have a supplementary question. I am happy to debate that right now. Given the Premier’s pre-election commitment to not increase taxes and charges, did he deliberately mislead the public? That is a straight up and down question. Did the Premier tell the truth or not?

Dr G.I. GALLOP replied: The Australian Labor Party put forward its financial plan for a four-year term at the last election. It has been open and accountable to the people of Western Australia on both the revenue side and the expenditure side.


PEEL DEVIATION, FEDERAL GOVERNMENT FUNDING

215. Mr D.A. TEMPLEMAN to the Minister for Planning and Infrastructure: Has the federal Government given any indication of its funding plan for the Peel deviation?

Ms A.J. MacTIERNAN replied: I thank the member for some notice of this question. I am happy to report that subsequent to my discussions with Deputy Prime Minister John Anderson and Minister Ian Campbell last week, I am rather confident that the federal Government will commit funding to the Peel deviation. In particular, Senator Campbell was very mindful of the powerful advocacy by the member for Mandurah in the local paper.

Several members interjected.


Ms A.J. MacTIERNAN: This is a very positive development. However, I am concerned that a plan may be afoot to undermine this very important project with a cheap political stunt. The Minister for Roads, Senator Ian Campbell, and his best mate Willy Packer have been running a campaign to have the money taken from the Mandurah rail budget to build the Peel deviation. Senator Campbell has also been claiming, completely inaccurately, that if the money were available, the Peel deviation could commence construction at the end of this year. That of course is complete nonsense, as he has been told time and again. Because of the environmental approvals that are required and the complex design that needs to be completed, there is no way that this project could commence before the end of 2007. This is a very large and complex project and there is no way that it could begin before the end of 2007.


The SPEAKER: Order! I call to order the Deputy Leader of the Opposition.

Ms A.J. MacTIERNAN: The aim of the Liberal Party and the National Party is to say that we should deliver only one project - the Peel deviation - to the people of Mandurah. We reject that and we say that they will have both projects, but they will have both projects in a timely fashion. Our priority is to build the rail and, having built that rail, we will build the road. That is a sensible and reasonable approach to the provision of infrastructure to the people of Mandurah.

BUDGET, HEALTH CAPITAL WORKS

216. Mr M.F. BOARD to the Minister for Health: I refer the minister to the budget papers “tabled” by The West Australian this morning and yesterday, which show that the Government has budgeted -

Mr R.C. Kucera: Your depth of research is amazing!

Mr M.F. BOARD: We are all capable of reading the paper. It shows that the Government has budgeted $162 million for health capital works in 2004-05.

(1) Can the minister confirm that, in order to properly fund the implementation of the Reid report while maintaining the existing program, the Government needs to double the health capital works budget each year for the next 12 years, as it has already publicly committed to?

(2) Does the minister concede that capital works funding for health services in 2004-05 falls far short of this target?

(3) Given this shortfall in funding, is the minister going to abandon long-awaited existing capital works upgrades to Kalamunda and Margaret River hospitals, or does he intend to abandon some of the recommendations of the Reid review?

Mr J.A. McGINTY replied: (1)-(3) I think we all learnt a little lesson about the member for Murdoch yesterday when he misled the House.

Mr M.F. Board: That was right.

Mr J.A. McGINTY: The member stood up during question time and said this in relation to the tragic events at the Swan mental health facility -

Why were the work safety orders issued by WorkSafe WA not complied with by the due date?

Mr M.F. Board: Correct.

Mr J.A. McGINTY: That is not correct. The member misled the House in posing that question. Secondly, he then said -

Why has the mental health service been told by the Department of Health that work safety orders will not be complied with due to budget cuts at the health service?


Mr M.F. Board: That is correct also.

Mr J.A. McGINTY: That is a bare-faced lie.

Withdrawal of Remark

Mr R.F. JOHNSON: Mr Speaker, I am sure you are aware of why I am on my feet. It is because the minister is in contravention of the standing orders of this House. He has accused one of my colleagues of lying. I ask you to direct him to withdraw that comment and apologise.

The SPEAKER: It is common knowledge that that word is unparliamentary and I ask the minister to withdraw that comment.

Mr J.A. McGINTY: I withdraw.

Questions without Notice Resumed

Mr J.A. McGINTY: The member for Murdoch came into this House and said something that was totally untrue. This is important because it relates to the question that was posed by the member.



Mr J.A. McGINTY: This is immediately relevant to the question that has just been posed. For the benefit of members, I will table a copy of the WorkSafe Western Australia improvement notices for the Swan Valley facility, including a three-page summary that shows that no work safety order issued by WorkSafe has not been complied with by the due date.

Mr M.F. Board: That is incorrect.

Mr J.A. McGINTY: I will table the information. The member provided no evidence whatsoever -

Mr M.F. Board: Go and have a look; I was there and saw it for myself.

Mr J.A. McGINTY: The member for Murdoch misled the House yesterday. I can give him the benefit of the doubt; he was given false information. He should not come in here without checking his information. I table the WorkSafe improvement notices for the Swan Valley facility and a summary of them.

[See papers Nos 2311 and 2312.]

Mr J.A. McGINTY: I have established that the member for Murdoch cannot be relied on to tell the truth in this place, because he did not tell the truth yesterday when he came in here and tried to grab a sensational headline.

Mr M.F. Board: I went there.

Mr J.A. McGINTY: The member is not an honourable person based on this performance. If the member reads the improvement notices and the dates on them, he will realise that he will need to apologise later today in this place for having misled the House. Everyone should understand that. The basis of the question that has just been posed by the member for Murdoch suffers the same defect.

DISABILITY ACCOMMODATION SERVICES, FUNDING INCREASE

217. Mr A.P. O’GORMAN to the Minister for Disability Services: I was delighted to hear the announcement by the Premier and the minister of a $108 million boost in funding for people with disabilities. Can the minister please outline how the increase for disability accommodation services relates to the level of known unmet need for accommodation services?

Ms S.M. McHALE replied: I thank the member for Joondalup for his question. Clearly the announcement on Sunday that the Premier and I made at a Nulsen Haven Association facility was excellent news for people with disabilities and their families, news which they have been waiting for and which we were able to deliver. On Sunday we announced that an extra $108 million will be allocated over the next four years to services for people with disabilities, of which $68 million will be allocated to the disability portfolio and $40 million to the education portfolio. I commend the Minister for Education and Training for his leadership and determination to get more funds for schoolchildren who have disabilities.

All members have been lobbied about accommodation support by individual families in their communities. We all know a family that has been struggling. I am delighted to announce that, specifically in relation to accommodation services, the single largest funding increase ever will be made to disability services in the next four years. That money will enable the Government to support more than 446 people over the next four years. We have proved in the past two years that, with vacancies, we can help other families; therefore, with that money and our vacancies, an estimated 525 people with disabilities will be supported with accommodation services - the most critical need for families. This is an unprecedented quantum of money in the history of the Disability Services Commission. In this budget we are


addressing the recommendations for the growth in unmet need in our accommodation strategy - which I released about 18 months ago and is referred to as the accommodation blueprint - and also the independent estimate of unmet need for accommodation by the Australian Institute of Health and Welfare.

Let us take it right down to the families. This now means that families can feel hope and can have better planning, and some of the pressure that they have felt can be taken off them and, in particular, older parents. Our Government stands for supporting people who are vulnerable in our community. Members have delivered to me some of the case studies of families. We have listened to those case studies and we have delivered the support needed by the families of people with disabilities. I am very proud that this Government has responded to the accommodation blueprint and has put the money in the forward estimates for the next four years.

EDUCATION, FUNDING

218. Mr J.H.D. DAY to the Minister for Education and Training: I refer the minister to the leaked budget summary obtained by The West Australian this week, as can be seen in this morning’s newspaper, which states that the Department of Education and Training will receive a funding increase that barely meets inflation and the growth in student population.

(1) How does the minister intend to fund his $30 million plan to increase the school leaving age without cutting existing programs?

(2) How does he intend to fund the teachers’ enterprise bargaining agreement increases without cutting existing programs?

(3) How does he intend to address the $88 million school maintenance backlog without cutting existing programs?

(4) Will he now admit that, in light of his Government’s refusal to provide additional funding, there is simply not enough money to address the urgent issues facing our education system?

Mr A.J. CARPENTER replied: (1)-(4) I wonder whether I am the only member in the Parliament who can remember the old cartoon character Sad

Sack. Do members remember old Sad Sack? The world was full of doom and gloom. Poor old Sad Sack could not see anything bright on the horizon; nothing good ever happened to Sad Sack. Every now and again I hear echoes of Sad Sack from across the Chamber. What a stupid question! The budget comes down tomorrow. The fact of the matter is that, in the last four years of the previous coalition Government, it spent about $6 billion on education - I think it was a bit less. In our four years we will have spent about $9.5 billion. We will have spent about 62 per cent more on education and training. Can members guess what we have done? We have delivered on every commitment within budget, because we are running the portfolio properly, unlike - members have heard it all before - the previous minister. The member for Darling Range should wait and see.

EDUCATION, FUNDING

219. Mr J.H.D. DAY to the Minister for Education and Training: As a supplementary question, with the minister’s pathetic, evasive answer, will he now concede that his Government’s spending priorities, including on the southern metropolitan railway, have impacted negatively on our state school system?

Mr A.J. CARPENTER replied: No.

POLICE STATIONS, HOURS OPEN

220. Mr P.W. ANDREWS to the Minister for Police and Emergency Services: Yesterday during question time I was surprised when the member for Kingsley asked whether the minister was aware that the Kenwick police station had its hours downgraded and the minister indicated that she was not aware of that and, in fact, believed that the member was wrong. Can the minister clarify this matter?



Mrs M.H. ROBERTS replied: I thank the excellent member for Southern River for the question -


The SPEAKER: Order! I call the member for Kalgoorlie to order for the first time.


Mrs M.H. ROBERTS: I thank the member for Southern River for the question and for his genuine interest in policing and law and order matters. I, too, would like to welcome the member for Kalgoorlie back into the Chamber. While he has been away, the member for Kingsley has gotten quite a few things wrong - more than the member for Kalgoorlie usually gets wrong. Yesterday she made a lot of assertions about the opening hours of police stations.


The SPEAKER: Order! I call to order the members for Kalgoorlie and Nedlands.

Mrs M.H. ROBERTS: Yesterday the member for Kingsley made assertions about the Kenwick police station in this place.

Ms S.E. Walker interjected.

The SPEAKER: Order! I call the member for Nedlands to order for the second time.

Mrs M.H. ROBERTS: Yes, I was very surprised and I told her that I thought she had her facts wrong. However, I like to check my facts before I correct someone. How many times did the member assert in question time alone that the Kenwick police station’s hours had been downgraded? She did that not once, but twice. Twice she told the House yesterday that the Kenwick police station’s hours had been reduced and it is no longer open 24 hours a day, as it was when she was in government. I have to ask the House: how wrong can a person be? I will tell members. There is no Kenwick police station!


Mrs M.H. ROBERTS: There is not now, and nor has there ever been, a police station in Kenwick.


The SPEAKER: Order!

Mrs M.H. ROBERTS: How can we rely on a single thing members opposite say?

KALBARRI, POWER SUPPLY

221. Mr M.W. TRENORDEN to the Minister for State Development: I refer the minister to the Minister for Local Government and Regional Development’s statement during question time in the Legislative Council yesterday that a new power line from Northampton to Port Gregory will be built only when the planning forecast predicts a shortage of electrical capacity to Kalbarri; that is, it will not be built until there is sufficient capacity requirement.

(1) Given that the numerous small businesses and industries, such as commercial fishing and tourism, complain about daily brownouts, blackouts and pole-top fires, will the State Government increase the reliability of power supplies to Kalbarri?

(2) If so, when?

(3) Is the minister aware that a local businessman, Mr Wayne Forrest, almost lost his life when this adaptor I hold blew out in a Kalbarri supermarket? This other adaptor I hold blew out at the Internet cafe at Kalbarri. Both incidents put people’s lives at risk.


The SPEAKER: Order!

(4) Given that these incidents happened at Kalbarri, why is the reliability of power to Kalbarri not an urgent priority?

Mr Speaker, I ask that these items be put on the Table of the House.

The SPEAKER: They are tabled for the balance of today’s sitting.

[The items were tabled for the information of members.]

Mr N.R. Marlborough: Are they safe?

Mr M.W. TRENORDEN: No.

Mr C.M. BROWN replied: Responsibility for matters of energy policy rests with the Minister for Energy. I am not the Minister for Energy.




HOSPITAL EMERGENCY DEPARTMENTS, GOVERNMENT’S STRATEGY

222. Mr A.J. DEAN to the Minister for Health:

Can the minister please report progress on the Government’s emergency department strategy?

Mr J.A. McGINTY replied: This morning I tabled in the House the Government’s comprehensive strategy to enable our emergency departments to better cope during the forthcoming peak demand period of winter. The document sets out a seven-point plan to enable our emergency departments to better cope. The plan’s key element is the opening of 332 additional general acute beds in our metropolitan government hospitals. Also, it includes reference to significantly increased funding for the ambulance service, the establishment of general practitioner emergency department clinics, capital investment, greater use of secondary hospitals, demand management and better management within the health system.

I am very pleased to report to the House that one-third of those beds - that is, 119 of those 332 winter beds - have been opened already. This is a key component of the strategy. Forty-five of those opened beds are in tertiary hospitals, with 74 in secondary hospitals. Those beds have already had an impact on the functioning of our hospital emergency departments. The total number of ambulance diversion hours for April 2004 was half the figure for March 2004, and half that for April 2003. The advice I have received from the Department of Health and from doctors is that this is substantially attributable to the opening of the additional beds. I table the figures for ambulance diversions for the three tertiary hospitals, as I have indicated to the House.

[See paper No 2313.]

Mr J.A. McGINTY: Substantially as a result of the initiative, the April 2004 ambulance diversion figure was the lowest this calendar year. This was achieved largely as a consequence of opening additional beds. It is early days. The complete strategy is yet to cut in, although the most important part is well under away; namely, the opening of the additional beds.

The strategy was developed in consultation with doctors, nurses and ambulance officers working in the frontline in our emergency departments delivering emergency medicine to the people of Western Australia. I trusted them to tell me what would make our system work better than it has for a long time. The early indications - I rate them no higher than that - are that it seems to be working. That leads us with some confidence to say that, short of an absolute catastrophe, our emergency departments should be able to cope and to provide world-class health care this winter to the people of Perth.

SOUTHERN RAIL LINK, CONSULTATION

223. Ms K. HODSON-THOMAS to the Minister for Planning and Infrastructure:

I refer to the minister’s statement in the Sunday Times magazine on 25 April 2004 regarding consultation on Labor’s southern rail link, in which she stated -

“I absolutely regret we didn’t do it better” . . . “I really didn’t want to make a decision before we went out and did more consultation but there were concerns within Government about doing it that way.”

(1) Will the minister now admit that her Government did not undertake enough consultation before embarking on such a costly project?

(2) Will the minister also now admit that as a result of her hasty decision, based on politics not planning, this $1.5 billion project is draining funds from core areas, such as health, education and law and order?

(3) Having shackled Western Australians to this massively overpriced, poorly planned project, will the minister guarantee the House that tomorrow’s budget will contain detailed costings on the southern rail link?

Ms A.J. MacTIERNAN replied: (1)-(3) I have absolutely no doubt that whatever process we used we would have come to the same outcome. I have

no doubt whatsoever that the rail project we are developing is absolutely the right project for this State. It is the only project that will deliver the benefits we want. My point was that it is true that we do not claim to get everything absolutely 100 per cent right. I believe in hindsight that we would have been much better to go out to the community earlier and put it on the table openly that we were considering an alternative option. The difficulty was that we were concerned that, given the statements made under the previous Administration, we might be creating expectations that we could not meet. The project was vastly superior, obviously; therefore, if we had opened it up for public consultation from day one, we may have landed ourselves with a project that we could not afford to fund. The work subsequently done indicated that we could do this project in a very cost-effective way, and well within the capacity of the State’s budget. The Government went down that path. In terms of the suggestion that we have not provided detailed funding, the Government has delivered to the member for Carine, the temporary opposition spokesperson on transport - I hope she hands them on to her


successor - boxes and boxes of detail. Thousands of pages of contractual data have been provided. Such material has never before in the history of this State been tabled in respect of a project.

Mr N.R. Marlborough: You have to supply a lot of pictures with her.

Ms A.J. MacTIERNAN: We will give her pictures. There has been unprecedented disclosure of the detail and costings of this project. I say to the Opposition that its members are flogging a dead horse - this project has massive community support.

SCHOOL LEAVING AGE, PUBLIC FORUM IN ALBANY

224. Mr P.B. WATSON to the Minister for Education and Training: I refer to the public forum held in Albany last week relating to raising the school leaving age. Can the minister please inform the House of the response of the Albany community to the consultation process?

Mr A.J. CARPENTER replied: It was a very good response. Over 100 people turned up at the forum, and a lunch was held with 25 community and business leaders. It was a good forum that expressed strong support for the concept. I thank the member for Albany for the pivotal role he played in pulling it all together. I look forward to similarly successful forums elsewhere.

WORKSAFE IMPROVEMENT NOTICES

225. Mr M.F. BOARD to the Minister for Health: I refer the minister to the WorkSafe improvement notices, which I spoke about yesterday in the House and to which the minister has referred today in question time. Indeed, he tabled the WorkSafe improvement notices. I refer to the three notices that I spoke about yesterday, particularly with regard to the Bill that was brought before the House. One was about the duress alarms being monitored. Contrary to what the minister has said in the House today, there has been an extension from 2 May to 30 June. Contrary to what the minister has said in the House today, the assessment to which I referred yesterday of the consultation rooms for safe systems, including layout and design and to keep the staff safe, has been extended from 14 May to 27 August. In addition, contrary to what the minister has said in the House today, there has been an extension from 30 April to 11 June of the barriers in the reception area that are adequately spaced, to which I referred in the House yesterday. The documents the minister has tabled today confirm that these things were not done and that extensions of time have been granted - I am not sure when. Does the minister think it is appropriate that those extensions have been given when the work should have been performed by now to keep the staff adequately protected?

Mr J.A. McGINTY replied: Yesterday the member for Murdoch asked -

Why were the work safety orders issued by WorkSafe WA not complied with by the due date?

No WorkSafe order has not been complied with by the due date. The member was completely wrong.

Mr M.F. Board: You just extended them.

Mr J.A. McGINTY: I did not extend anything. There is nothing contrary to what I have said to the House today in any way, shape or form. Let me make this point: on 6 March, Debbie Freeman was bashed at the Swan mental health facility. It was a tragedy and one about which everyone in this House felt considerable compassion. WorkSafe was brought onto the site the following Monday. Six March was a Saturday.

I will give the member an indication of what has occurred since then. The viewing panel from the interview room has been changed so that it now looks out into the corridor, as was indicated to the Premier and me when we visited the site on that occasion. Twelve personal mobile phones have been made available to the community mental health staff, which were not previously available. The pool of available vehicles has been increased to ensure that the community mental health nurses can get on with their job. These are all things that have been done. Alarm upgrades have now been undertaken at both of the mental health facilities on the Swan site. A cap has been placed on secure patients, down from the eight, which was the norm, to six. A team of three people, rather than two, has attended unknown community patients in the aftermath of an incident. That is an additional safety measure. What the future might hold in respect of that provision remains to be seen. However, it was thought important, so soon after the tragedy occurred, that additional staffing be provided to meet that need. There is an extra nurse per shift to provide additional security, and additional staff to undertake the work. Personal duress alarms have been agreed to in principle. However, that is now being addressed on a system-wide basis to make sure that those facilities are made available to everyone in the system, not just those people at the Swan facility.

It can be seen that there has been a substantive response to the tragedy that happened to Nurse Debbie Freeman on that occasion. For the member for Murdoch to make cheap political capital out of misrepresenting the position and out of a nurse who was bashed is about as low as it gets. To misrepresent the position, as has been done by the member for Murdoch, is despicable.


WETLANDS, TONKIN HIGHWAY-ABERNETHY ROAD

226. Mr B.K. MASTERS to the Minister for Planning and Infrastructure: In November last year the Environmental Protection Authority recommended against the proposal by Main Roads WA to build an on-ramp connecting Tonkin Highway with Abernethy Road in Kewdale because of the impact on important wetlands and on regionally significant vegetation.

(1) Is the minister aware of the environmental value of the wetlands, that they are listed on the Australian Heritage Commission’s Register of the National Estate and that the vegetation is contained within a Bush Forever site?

(2) Why has Main Roads submitted an appeal against the EPA’s recommendation to the Minister for the Environment?

(3) Does the minister support an appeal by her department against this recommendation of the EPA, in spite of the EPA saying that the proposal is environmentally unacceptable and should not proceed?

Ms A.J. MacTIERNAN replied: Did the member give notice of that question?

Mr B.K. Masters: Yes, I did. The notice was faxed through on 15 April.

Ms A.J. MacTIERNAN: However, he did not give notice that he would ask the question today. This is a question on notice. Therefore, I was supposed to bring into the House all the questions on notice. That is pretty extraordinary. However, as always, I will endeavour to answer the question.

(1)-(3) Main Roads has concerns that the EPA, in making its assessment, did not take certain factors into account. It did not take into account factors such as the value of land that was being set aside in lieu. I do not have all of that detail with me at the moment. However, roughly, that was the basis of the appeal that was lodged. There is no dispute that this is land of environmental value. However, there are a variety of ways in which an environmental issue can be resolved. In some instances it is setting aside other land of equal or greater value that was not previously proposed to be reserved. As I recall, when I last looked into this matter Main Roads believed that there had been an undervaluing of the alternative land that Main Roads had indicated it was prepared to reserve.

ACTING SPEAKERS, APPOINTMENT AND RELEASE Statement by Speaker

THE SPEAKER (Mr F. Riebeling): I wish to advise members of my nomination of the member for Mandurah as Acting Speaker for the remainder of this session and my release from nomination of the member for Carine as Acting Speaker. I thank the member for Carine for her past seven years of service in that area.

OCCUPATIONAL SAFETY AND HEALTH LEGISLATION AMENDMENT AND REPEAL BILL 2004 Consideration in Detail

Clause 1 put and passed.

Clause 2: Commencement - Mrs C.L. EDWARDES: This clause deals with the commencement date of not only the Act, but also the various provisions. Will the minister tell us which sections and/or parts and/or provisions will be proclaimed, and why are different days fixed for the proclamation of different provisions? What work needs to be done before that happens?

Mr J.C. KOBELKE: I think the member would know, as a former minister of some experience, that one cannot normally give a specific answer to that sort of question. A range of things will need to be put in place. Although I am fairly confident that the people from WorkSafe WA and the Department of Consumer and Employment Protection have an indicative list, it will be subject to a range of things that will need to happen. In order for the tribunal to be established, it will be necessary to have someone in the commission who fits the requirements. It may also be necessary for certain procedural matters to be put in place. We also need to consider the fact that training programs will need to be put in place for the provisional improvement notices, and that may be a staged process. The member quite correctly drew attention in the second reading debate to the fact that the Mines Safety and Inspection Act is also being amended. I indicate to the member informally that we are using the same draftsperson for the amendments to that Act, and many of the sections in those two Acts will be the same. There are already some tie-ups between the Mines Safety and Inspection Act and the Occupational Safety and Health Act, and we need to take those into account. It may be necessary to proclaim parts of this Bill at different times to fit in with that. Until we know how quickly the amendments to the Mines Safety and Inspection Act will come on we will not know whether that will be midway through the process or will drag behind the process. We need a commencement clause that provides flexibility so that we can ensure that the two Acts complement each other and we do not run into problems by doing one thing before something that needs to precede it is put in place.


Mrs C.L. EDWARDES: I thank the minister for his answer. It is obvious as we go through the Bill that some clauses will need to follow on from others. It may help if I break it down so that we can talk about what is absolutely necessary. The training for the safety and health representatives cannot take place until the elections have been held. Will it be necessary to hold up the establishment of the tribunal until the training of the safety and health representatives has taken place? That will probably not be necessary, because there will still be other matters that can go to the tribunal. What steps will need to be taken now, and what clauses will need to be held over to allow that to occur?

Mr J.C. KOBELKE: Some of those details are best brought out as we go through the various clauses, because the member may have a pertinent question about what should precede a particular clause, and therefore about the timing, and that will relate to what the commencement date should be. I do not think it will be productive in this debate on the commencement clause to go through the whole Bill and say why we need different clauses to commence at different stages. The member suggested that the establishment of the tribunal is somehow contingent on putting in place the training for the health and safety representatives. That is not the case. A procedure is already in place whereby the health and safety representatives will be able to take disputes to the industrial magistrate. We are putting in place what we believe is a better model. The timing is not conditional upon that. We may, for good management reasons, decide that we want to hold up the commencement of certain clauses, but that will be a management decision made in light of all the facts at the time. It is not something that we can foretell now. The tribunal will replace matters that are currently handled through the Industrial Magistrates Court, and that may raise issues with regard to cases that are already afoot, etc. The example that the member alluded to in her question - that is, the need to train the health and safety representatives - would not be a reason for holding up the appointment of the tribunal.

Mrs C.L. EDWARDES: I take the minister’s point that some of these matters may be more adequately dealt with as we go through the various clauses of the Bill. One part of the Bill that is very important, as I alluded to during the second reading debate yesterday, is the proposed amendments to the mining legislation. It is not clear from the discussions that have taken place where the mining industry sits with the transitional provisions and with the implementation of the establishment of the new committee and the abolition of the Mines Occupational Safety and Health Advisory Board contingent upon the amendments to the Mines Safety and Inspection Act going through both Houses of the Parliament. Perhaps the minister could explain that at this time, because some of those issues will not come up during the debate on the respective clauses as they deal specifically with the committee, so it is appropriate that they be dealt with here.

Mr J.C. KOBELKE: As I have indicated to the member, there is a range of complex issues, and it is not possible for me to answer them in a comprehensive way. A lot of work is going on. The kernel of the issue, and the potential sticking point, or the matter that we need to handle very carefully, is that currently the Mines Safety and Inspection Act relies on the Occupational Safety and Health Act to give the safety and health magistrate the power to take action in areas other than prosecutions. Therefore, if we were to remove that section from the Occupational Safety and Health Act, we would leave the Mines Safety and Inspection Act without that reference to the safety and health magistrate. That is one example of a clear constraint - perhaps the major constraint - that we need to manage in working on two amendment Bills at the same time. There are quite adequate solutions to deal with that, but it will depend on the timing of the amendments to the Mines Safety and Inspection Act and what is judged to be the best course of action at the time to ensure that the current provisions that are applied in those areas are not undermined by changes that are brought on before other things have been put in place. Clearly we need a flexible commencement clause to give us the ability to do that.

Mrs C.L. EDWARDES: Perhaps that is creating some confusion in the industry as well, because people do not know what will be in the Mines Safety and Inspection Amendment Bill with regard to the abolition of MOSHAB and the creation of the new committee. Given the fact that the minister is drafting amendments to the Mines Safety and Inspection Act and particular clauses of this Bill cannot be proclaimed -

Mr J.C. Kobelke: Some clauses.

Mrs C.L. EDWARDES: The clauses dealing with MOSHAB and the committee. Will those clauses be proclaimed prior to the introduction of the amendments to the Mines Safety and Inspection Act?

Mr J.C. KOBELKE: The important issue is not to undermine the operation of the Mines Safety and Inspection Act and MOSHAB. There are some complexities in how we will be able to handle that. I am leaving open the possibility that there may be some technical difficulties in the handling of that matter, but my clear expectation is that we will wait until we have dealt with the relevant sections of the Mines Safety and Inspection Act and we will then, in concert, be able to deal with those other sections.

Mrs C.L. EDWARDES: It would make a lot of sense for all of that to be done together. However, the minister has outlined his policy, and regardless of whether we agree with what the minister has outlined, the issue is still that we have not, and neither has the industry, seen the proposed amendments to the Mines Safety and Inspection Act. It may be the case that some unforeseen consequences arise. If the minister cannot tell us which clauses of the Bill will not be able to be proclaimed until the Mines Safety and Inspection Act amendments have gone through both Houses of the Parliament, then it would make a lot of sense to hold over the proclamation of all of these clauses until such time as the minister has brought that amendment Bill into this place.


Mr J.C. KOBELKE: I think the member is really jumping at shadows. The minister responsible for the Mines Safety and Inspection Act and I have worked in concert on these matters. The two agencies had very clear drafting instructions, and to the extent that there appeared to be any conflict, those matters have been resolved. One person has drafted both Bills. I do not envisage that we will face any insurmountable problems. The fact is that we are very keen to have this legislation in place. We do not know how long its passage may take in the other place. Therefore, it is best to bring it on and deal with it, as it is a very important Bill. Although the issues are real, we are quite confident they can be managed.

Mrs C.L. Edwardes: You cannot proclaim those sections until the Mines Safety and Inspection Amendment Bill goes through the House. Therefore, why not leave these proposed sections to go through with that Bill?

Mr J.C. KOBELKE: It is because they sit within this Bill and will sit within the Act. Therefore, it would be somewhat artificial, on the basis that we fear there might be a conflict, to haul them out. It would be much easier to retain them in the Bill, have the Bill passed, and be able to enact a whole range of other provisions that are not caught by these potential problems, and then simply hold back that section with which there must be a clear interplay with another statute.

Mrs C.L. Edwardes: I think the minister is missing the point. He is amending the Mines Safety and Inspection Act in the occupational safety and health Bill. There would therefore be no reason for not amending those sections of the Mines Safety and Inspection Act in the occupational safety and health Bill.

Mr J.C. KOBELKE: This is the basis not merely of a statutory review, which the member kicked off when minister; it has been a review that has looked to far reaching changes. To that extent the changes that affect the Mines Safety and Inspection Act have also been picked up. The Mines Safety and Inspection Act will follow through in the same vein because its review was conducted by former commissioner Bob Laing. The whole process from the start of the review has looked at how the two pieces of legislation might fit together, it being realised that there is a need for a specific jurisdiction for mining and a need to maintain a separate inspectorate and separate Act specifically for mining, but that there needs to be the overarching application of policy through WorkSafe.

Mrs C.L. EDWARDES: I will raise other issues related to that when we get to the relevant clauses, but given that this clause deals with the different days upon which different sections will come into existence, and knowing full well the level of expertise in the department, departmental officers would have prepared such a document because they know exactly what the steps are, what sections must be held over and the reasons for holding them over. It is a bit disappointing that the minister has not come into this House able to provide members with that information.

Clause put and passed.

Clauses 3 and 4 put and passed.

Clause 5: Section 19 amended - Mrs C.L. EDWARDES: Section 19 is probably the most important section in the Act. It deals with the duties of employers. The clause has been placed in division 2, which deals with general workplace duties. Section 19(3) reads -

If, at a workplace, an employee incurs an injury, or is affected by a disease, that -

(a) results in the death of the employee; or

(b) is of a kind prescribed in the regulations for the purposes of this subsection,

the employer of that employee shall forthwith notify the Commissioner in the prescribed form giving such particulars as may be prescribed.

Section 19(4) reads -

(4) For the purposes of this section, where, in the course of a trade or business carried on by him, a person (in this section called “the principal”) engages another person (in this section called “the contractor”) to carry out work for the principal -

It then sets out who will be deemed to be contractors and who will be deemed to be employees. Section 19(5) deals with the principals of the contractor or the duties of the contractor to persons employed or engaged by him. Where have subsections (3), (4) and (5) been replaced and what is the basis on which they have been replaced?

Mr J.C. KOBELKE: The member is correct in clearly pointing to section 19(3), (4) and (5) being repealed. Section 19(3) deals with injury and disease reporting. Section 19(4) and (5) deal with principal and contractor arrangements. They are provided for in proposed sections 23D and 23I.

Mrs C.L. EDWARDES: Why was it decided to take those provisions out of section 19?

Mr J.C. Kobelke: It was a drafting issue.



Clause 6: Section 21 amended - Mrs C.L. EDWARDES: Section 21 is another of the general duty provisions. It deals with duties of employers and self-employed persons. Some of the provisions have been repeated as opposed to being amended. What is the consequence of the change that is being imported in this clause?

Mr J.C. KOBELKE: The new section 21(1) imposes a duty of care on employers and self-employed persons. Section 21 is amended for clarity and confirmation of the extent of the duty. Proposed subsection (1) is a clear expression of the existing duty at section 21(1)(a) of an employer or self-employed person to look after his or her own safety and health. The reworded duty applies only to self-employed persons; that is, the reference to employer is removed. Given that such a duty cannot by its very nature apply to a corporate employer, an employer who is an individual is by definition under the Occupational Safety and Health Act also a self-employed person.

Mrs C.L. EDWARDES: I refer particularly to the member for Avon’s unfortunate story about the gentleman from Pingelly who was a tractor driver. WorkSafe could not prosecute his employer, the farmer on whose property he worked or the machine manufacturer. It ended up prosecuting the man himself. It is a bit difficult for the minister to spell out the public duty, but would it have come down to prosecuting the person who suffered the injury? Yes, he has a responsibility under section 21(1) to take reasonable care to ensure his safety and health at work, but what has that to do with an offence under the Act and action taken against that self-employed person if he fails the rest under section 21(1)?

Mr J.C. KOBELKE: The effect would be the same as that now because this amendment does not change that.

Mrs C.L. Edwardes: Can you tell us what the outcome is?

Mr J.C. KOBELKE: The case history and the way in which it has been interpreted have been built up over the years.

Mrs C.L. Edwardes: Which is?

Mr J.C. KOBELKE: I am not an expert on that. The member may be seeking legal advice.

Mrs C.L. Edwardes: I am not seeking legal advice.

Mr J.C. KOBELKE: The point is that although it is a valid question, the Bill has not changed or impacted upon the criteria.

Mrs C.L. Edwardes: Even if the amendment is a repeat of a provision, it gives an opportunity. Both the member for Murdoch and the member for Avon raised similar sorts of queries in respect of these types of actions being taken by WorkSafe. A self-employed person has a duty to take care of his own health and safety at his workplace. What is the consequence for him of not doing so? What is the public benefit?

Mr J.C. KOBELKE: The member should keep in mind that our amendments do not change the provision. The consequences - that is, what is done or not done - for the self-employed person will to a large extent depend on the particulars of the matter. It is very hard to apply a generality to so many different cases, but, clearly, there is an obligation on the self-employed person. We may find as we go through the Bill that that obligation is extended a bit, but it is not done in this clause.

Mrs C.L. Edwardes: What is the public benefit of that being a duty?

Mr J.C. KOBELKE: The public good is to require the person to be proactive. That very much relates to trying to be preventive; that is, people working to ensure that the workplace is safer by preventing certain things. We are putting in place a well-established public interest test. All those things come into play.

Mr W.J. McNEE: I would like some more detail. It seems that the minister is trying to override my absolute right. I put this to the minister. I am not at all satisfied with his answer. It has not provided any information. Let us say I was straining a piece of old wire on my farm and it broke and took out my eye. What would be the position of the people who would come after me, if anybody did come after me? What would they be entitled to? I was straining my own wire on my own property. I had judged the wire, although it was an old piece of wire, to be quite effective, but it broke.

Mr J.C. KOBELKE: We are considering clause 6, which amends section 21 of the Act. A blue copy of the Act is available. Section 21(1) of the Act states -

An employer or self-employed person shall -

(a) take reasonable care to ensure his own safety and health at work; and

In this Bill, that has been rewritten to read -

An individual who is self-employed shall take reasonable care to ensure his or her own safety and health at work.

I will also move to amend that proposed new subsection for clarity. The proposed new subsection is not intended to change the requirement that is already placed on people by the Act. That requirement is that people should be proactive and take care to ensure their own safety and health at work. It is not a change.


The member for Moore’s concern is about the operation of the legislation. That goes well beyond the proposed amendments to this section, but I will comment on it briefly. The member’s comments go to the professionalism of the department and the professional approach inspectors take in deciding whether they believe a breach of the legislation might be open to prosecution. That also rests on the prosecution policy of the department, which, the member will remember, the last Government changed following the death of the young Thorpe girl in Esperance. That change involved the inclusion of a public interest test. I certainly did not agree with the prosecution resulting from that death, but I was on the outside and did not have all the information before me. I thought that the decision to prosecute a father because his daughter had died sent rural safety backwards. I saw no point in it at all. The prosecution policy has since been changed, and inspectors must take into account what is in the public interest. I certainly would not see any public interest in taking prosecution action against a father on the basis that his daughter had been killed.

Mr W.J. McNee: You saw no public interest in that. Neither did I.

Mr J.C. KOBELKE: Exactly. I did not at the time, and I said so publicly. I was speaking from the point of view of someone who did not have all the data before him. However, nothing has since come to my attention to suggest that my call at the time, which was most probably the same as that of the member opposite, was a bad decision. Since then, the prosecution policy has included a public interest test. There has also been a real change in the approach of the WorkSafe officers and inspectors to work with industry. That does not mean, as I said to members last night, that sometimes a big stick does not have to come out. That is not the primary issue. The primary issue is engaging with the industry and working with it to make sure it understands how it can improve safety. It is about working on that together. However, that goes well beyond what we are dealing with here.

I move -

Page 3, line 14 - To delete “An individual who is self-employed” and substitute the following -

A self-employed person

This change is being made because “self-employed person” is defined in clause 3 as “an individual who”; therefore, it is considered a matter of simple drafting to tie it to that rather than include the definition in this clause.

Amendment put and passed. Mrs C.L. EDWARDES: The question the member for Moore was asking is the question to which every farmer who is self-employed and every other self-employed person who operates in the metropolitan area and around the State wants to know the answer: what is the value of the clause? I know that it is a rewrite, but there have been changes of policy and personnel. Those people need to know the value of that particular duty and have an idea of what would be the public good in taking action against a self-employed person. For instance, we are all well aware that the member for Moore suffered a serious injury last year when he fell off a silo and broke both his ankles. Obviously, there was no public benefit in pursuing the member for Moore about it at that time. However, what would be the basis of WorkSafe’s decision to pursue a self-employed person who suffered a serious injury?

Mr J.C. KOBELKE: I put to the member a question that she might like to consider and answer by interjection, if she wishes. Does she consider that we should not require self-employed people to look after themselves?

Mrs C.L. Edwardes: The question I am putting to you is the question they have asked me.

Mr J.C. KOBELKE: I will answer that question and we will move on. I am trying to find the limits. The member has some concerns, or wishes to receive some assurances that this does not go too far to one end. Let us look at the other end. I do not think this is the case, but I ask whether the member is saying that we should remove this requirement and not have as a very clear guide the principle that self-employed people should be required to take reasonable care to ensure their own safety and health.

Mrs C.L. Edwardes: No; because there is a valuable link with workers compensation. However, within what parameters is there a public good in WorkSafe taking action against a self-employed person for breach of that duty?

Mr J.C. KOBELKE: That is a subsequent question.

Mrs C.L. Edwardes: It is the same question.

Mr J.C. KOBELKE: It rests on it, but it is a subsequent question. The principle we are dealing with in section 21, which we are amending by clause 6, is that an individual who is self-employed shall take reasonable care to ensure his or her own safety at work. I do not think anyone is suggesting that we should move away from that. That is already in the Act, and we are maintaining it. There is only a minor rewrite for clarity. We are not changing the basis of it. However, people want to build on that and say that it has implications for a lot of other things, and they ask what it means. It has a lot of meanings, and I have tried to cover those. However, they do not specifically relate to this clause. Proposed new subsection (2), which we have not addressed, puts a responsibility - a requirement - on an employer or self-employed person to ensure that someone who is not an employee is not adversely affected, either wholly or partly, as a result of things that the employer or self-employed person does. That is quite important. If someone was digging a trench and left it overnight, that person would have to be wary that members of the public might fall into it.


Mr W.J. McNee: Surely I could dig a trench on my property and leave it overnight.

Mr J.C. KOBELKE: Not necessarily.

Mr W.J. McNee: Come on!

Mr J.C. KOBELKE: Let me address it. This is a real issue, and I think it is worth talking about.

Mr W.J. McNee: It is not a real issue. If you are on my property after dark, you had better look out for yourself.

Mr J.C. KOBELKE: In many farms, there is usually a long driveway to the house.

Mr W.J. McNee: Yes, but you have no right to be there.

Mr J.C. KOBELKE: I do not know whether the member has a fence at the front of his property or a cattle pit.

Mr W.J. McNee: I have both.

Mr J.C. KOBELKE: People have to open a gate and come in?

Mr W.J. McNee: Yes, they do.

Mr J.C. KOBELKE: What if the member did not have a gate and there was just a cattle grid?

Mr W.J. McNee: They would still have no right to come in.

Mr J.C. KOBELKE: What if the member dug a two-metre deep trench just inside the cattle pit and put no warning signs up and someone came along the road, took a wrong turn, pulled onto the member’s property and had a major accident because he went into a two-metre deep trench that the member had left unmarked?

Mr W.J. McNee: You’re changing the argument.

Mrs C.L. Edwardes: What makes that an issue as against a public liability issue?

Mr J.C. KOBELKE: It could be a public liability issue, but the issue is that there is a requirement not to leave hazards around that could cause an accident or affect in a direct way people’s health and safety.

Mrs C.L. Edwardes: What would be the difference between it being a public liability and a WorkSafe issue?

Mr J.C. KOBELKE: The issue is that each case has to be judged on its merits. There are a range of cases and I do not want to go into particulars. A member of this House was involved in an issue that had a direct impact on his or her family. Was it a road accident, was it a WorkSafe accident, or was it a public liability issue? He or she gets mixed up, but there can be judgments that matters are caught by the Occupational Safety and Health Act. Therefore, there is a need to ensure that people accept that they have a responsibility to make sure they do not leave hazards for other people and they also look to their own health and safety in the way they do things. That is not being changed in any real way. We are just looking to have clearer wording. It already exists and it is being reaffirmed by what we are doing here.

Mrs C.L. EDWARDES: This has been amended, it is in the Bill and it is able to be raised appropriately in this House. When the minister is amending the Occupational Safety and Health Act, everybody has questions, such as what it may mean for him or her. The question I have been legitimately asked, not only by the member for Moore but also by others, such as self-employed persons, is: what are the limits? If I am a self-employed roof tiler and I do not have anybody else working with me and I fall off the roof, why is that duty of care in the Bill? First, people must take care of their own health and safety. Everybody knows that. What is the public benefit in having the duty of care there? I agree there are valid links with workers compensation, but where does it lead to the rest of the Act and prosecutions? Penalties have been increased. People are legitimately asking what it means for them?

Mr J.C. KOBELKE: As I said, there are myriad examples and they have to be judged on the particulars of each case. I cannot give a general answer that will apply to a whole group of cases. In another example, a woman was killed by a truck going along the road because a part of the equipment or load on the truck was not properly tied down and it swung out and hit her. The clear issue is that that driver was probably self-employed, but he had a duty of care to make sure that the way he loaded and drove his truck would not be a danger either to his employees or to members of the public. That is what this legislation is about.

The member for Moore and the member for Avon have raised the fact that in the past there was a clear general judgment that things went too far, and changes were then taken administratively to put in a public interest test. We have done a lot to train the staff and the inspectors to get the right approach, to create an atmosphere in which health and safety will be promoted and not to get people offside in an antagonistic way. These things will be continually monitored. At some time in the future a case may come up about which there is general agreement that the law was taken too far. The member cannot give me the number of cases in the past two or three years when there has been an abuse of this law or the law has been applied in too strict a way. That will always be a balancing act. It will be affected by the determinations of the court and how it is judged, but primarily it will be affected by the way WorkSafe does its job and by the guidelines and prosecution policies that apply, together with the professionalism of the staff. That will have to be judged on a case-by-case basis. I have a great deal of respect for the inspectors at WorkSafe because they


sometimes have to make the call. They front up and they have the power to decide whether to work with people and talk about the matter or to go beyond that and perhaps look at giving a notice or taking prosecution action. The advice will then come back from senior officers about how the whole thing will be handled. If members have heard of cases in the past two or three years that have not been handled well, I am happy to look at them. I could count on perhaps one finger the cases I am aware of when we could have handled the matter a bit better. There were no prosecutions, but it was the attitude that was taken when addressing people, and we could have done better. We are trying to do better.

Mr W.J. McNEE: I am not suggesting that it has been too hard in the past or anything like that, but we are changing something. That is when I get a bit careful. I can accept change, but I want to be sure, as Joh Bjelke-Petersen said once, that I do not put my foot on the fly tape before I need to. The minister talks about public interest and about the man driving down the road. He is covered by the Road Traffic Act and a lot of other things. As I see it, that does not have a lot to do with WorkSafe.

Mr J.C. Kobelke: It was a health and safety issue. Health and safety inspectors went and investigated.

Mr W.J. McNEE: Perhaps they did. Why would the police not attend? That does not matter. I do not want to argue about that. However, one is on a public road, and it is different on private property. I am already responsible for all sorts of people who come onto my property without any invitation. We carry huge public liability insurance to cover them. They were never invited there. I am sorry to delay the minister, but could he explain this public interest issue?

I referred to someone straining a piece of wire. That is a matter that is dangerous and I am a bit careful about it. Who judges professionalism? People like me have been straining wire for 60 years. Would I be judged as professional? Would my judgment be worth anything? Would the fellow who came to make a judgment about me be able to put up equivalent experience? They are the sorts of things that worry me. He could be some brand new university graduate, with a brand new degree and he thinks he knows it all. That is a bit of a problem. I would like a bit more explanation on that public interest issue. I am not suggesting the inspectors are not skilled.

Mr J.C. KOBELKE: I will address the issue of the public interest test, realising it does not deal specifically with this issue but relates to other matters for which this is the basis.

Mrs C.L. Edwardes: Contravention of this issue can constitute gross negligence.

Mr J.C. KOBELKE: No.

Mrs C.L. Edwardes: Yes, it does.

Mr J.C. KOBELKE: There must be other conditions as well. It is one of the prerequisites.

Mrs C.L. Edwardes: It is one of the prerequisites, so it is very important. It can lead to imprisonment.

Mr J.C. KOBELKE: Referring to the request by the member for Moore, the issue of the public interest test was placed in the prosecution policy following advice from the Director of Public Prosecutions because of the Zara Thorpe case, which involved a prosecution against a farmer over the death of his daughter. The issue of public interest was that even if there was a lay-down case - I am not saying it was in that instance - with the person who caused the death being totally culpable, then the public interest test would be whether it serves the public interest if that person has lost someone close to him or her. How could a greater penalty be put on that person? The issue then is what that will do when it comes to working with that industry sector or that community, which would be up in arms that such a callous action could be taken. Those sorts of factors can be taken into account in a public interest test. Therefore, it may be decided that, in the public interest, the person will not be prosecuted, even if it was a lay-down case and the person was absolutely wrong and was totally culpable. There would be flexibility to ask whether it was in the public interest. That test was introduced when the member for Kingsley was the minister. That is just one aspect of the way the whole issue is handled and one improvement that has been made in the past four or five years.

Clause, as amended, put and passed.

Clause 7: Sections 21B and 21C inserted - Mrs C.L. EDWARDES: Proposed section 21B identifies the duties of a body corporate that is not an employer. Can the minister explain who and what type of body he is targeting and the sorts of actions that are likely to arise out of proposed subsection (2)?

Mr J.C. KOBELKE: These provisions create a new general duty of care owed to non-employees by corporate entities. They are not employers, but operate for gain or reward. The duties are modelled on those in proposed section 21B(2). This amendment closes a gap in the coverage that arose because of the definition of “self-employed person” that meant the duties of a self-employed person under proposed new section 21, as amended, do not apply to a body corporate. With the continued expansion of labour hire arrangements as a means of engaging workers, an increasing number of corporations are no longer considered employers. Although the duty owed to workers engaged under labour hire arrangements is dealt with elsewhere in the Bill, this additional change is required to ensure that members of the public, work experience students or others present at the workplace are protected when a business is operated by a body corporate that is not an employer.


Mrs C.L. EDWARDES: The term “body corporate” is not defined. Can the minister tell us the definition of or what would constitute a body corporate?

Mr J.C. KOBELKE: I am sure that, as a lawyer, which I am not, the member has a better understanding of the term “body corporate”, which goes beyond what we think is just a corporation. There are a number of bases in law. I do not have that information here to be able to give the member that sort of legal background about a body corporate.

Mrs C.L. Edwardes: It is important to have it on the record, again, for the sake of completeness.

Mr J.C. KOBELKE: I am happy to provide that information to the member and ensure that it goes on the record.

Mrs C.L. EDWARDES: Proposed section 21C deals with breaches of proposed section 21B, to which we have just referred and which deals with the duties of a body corporate that is not an employer, work that is being done by the body corporate that may affect a person who is not an employee and the hazards that arise from the work that is being carried out by the body corporate or a person working under the direction of the body corporate. Proposed section 21C is the very first of the provisions that refer to the new tiers of penalties. If a body corporate contravenes proposed section 21B(2) in circumstances of gross negligence, the body corporate commits an offence and is liable to a level 4 penalty. Given that the level 4 penalty can be imprisonment of up to two years, can the minister tell us what is likely to be the contravention of proposed section 21B that would result in a body corporate being liable to a level 4 penalty?

Mr J.C. KOBELKE: Penalties apply in accordance with the new penalty regime, which is referred to later in the Bill, and the member has already alluded to one aspect of that. The penalties in the Bill are set at the same level as those for other duty of care breaches committed by non-employees. As the member has alluded to, under proposed subsection (1), a breach committed in circumstances of gross negligence attracts the highest penalty, a level 4 penalty; that is, a maximum of $500 000 for a first offence and $625 000 for a subsequent offence by a corporation. Clause 16 of the Bill, which inserts proposed section 18A, defines “gross negligence”. The definition includes the constraint that it is applied only when the offence has resulted in serious injury or death. Those various parts must be put together; that is, the contravention must meet the definition of “gross negligence” and there must also be the resulting serious injury or death. All factors must be lined up before there is any potential for the penalty of a jail sentence to be given.

Mrs C.L. EDWARDES: I do not want to talk about the penalty itself, other than to say that the contravention attracts a very serious penalty, because we will deal with the penalties when we get to that clause, and I am happy to do that. The very first element that is important is contravention. What is the contravention of proposed section 21B(2) that will attract a level 4 penalty? There is the definition of “gross negligence” and all of that. However, what will be the contravention? Contravention is very important. That is why I think the definition of “gross negligence” is far too broad. The minister needs to be able to tell this House what is the likely contravention of proposed section 21B(2) that will attract a level 4 penalty. What would attract a level 3 penalty? What would attract a level 2 penalty? The minister needs to be able to explain to this House the differences between those contraventions.

Mr J.C. KOBELKE: Proposed section 21B and particularly proposed section 21C seek to ensure that bodies corporate are also picked up by the provisions in clause 6. The member will see that they are very similar, but these provisions deal with a body corporate. That is the difference that we are addressing. There are more fundamental issues that the member is seeking to raise about what will be the interpretation. However, this clause specifically provides that those measures that apply to employers and self-employed people will also apply to bodies corporate.

Mrs C.L. Edwardes: Because you are dealing with proposed section 21C(1), which attracts a level 4 penalty, proposed section 21C(2), which attracts a level 3 penalty, and proposed section 21C(3), which attracts a level 2 penalty, you need to be able to explain to the House the particular contraventions under proposed subsections (1), (2) and (3) that will attract the different penalties.

Mr J.C. KOBELKE: That is a different question.

Mrs C.L. Edwardes: No, it is the same question.

Mr J.C. KOBELKE: The member is now referring to the levels of penalties.

Mrs C.L. Edwardes: No, I do not want to talk about the penalties. I am talking about what will be the contravention of proposed section 21C(1) that will attract a level 4 penalty. The minister needs to be able to explain proposed subsections (2) and (3).

Mr J.C. KOBELKE: That is proposed section 21B(2). The answer to the first part of the question is proposed section 21B(2), which I will read for the record. If a body corporate contravenes proposed section 21B(2), it is liable to a level 4 penalty. Proposed section 21B(2) states -

A body corporate to which this section applies shall, so far as is practicable, ensure that the safety or health of a person is not adversely affected wholly or in part as a result of -

(a) work that has been or is being undertaken by -

(i) the body corporate; or


(ii) a person carrying out work under the direction of the body corporate;

or

(b) any hazard that arises from or is increased by -

(i) the work referred to in paragraph (a); or

(ii) the system of work that has been or is being operated by the body corporate.

I will compare that proposed section with proposed new section 21(2), which states -

An employer or self-employed person shall, so far as is practicable, ensure that the safety or health of a person, not being (in the case of an employer) an employee of the employer, is not adversely affected wholly or in part as a result of -

(a) work that has been or is being undertaken by -

(i) the employer or any employee of the employer; . . .

I jump back to what we are dealing with there. The wording is similar, except that the body corporate applies instead of it being an employer. Current section 21B refers to any hazard that arises from or is increased by the work referred to in paragraph (a). That is the same wording. “The system of work that has been or is being operated” by the employer or the self-employed person is the same wording, except that it applies to a body corporate. The issue, in part, relates to the extension to corporations and, in part, deals with the different levels of penalty. The fundamental matter the member was rightly trying to bring in relates to the same issues debated regarding section 21 of the principal Act.

Mrs C.L. Edwardes: That is not the point. You can substitute a self-employed person and body corporate. The self-employed person in terms of the penalties is picked up in the later provisions of the Bill. We will get to them. At this stage, I can only ask you the questions in relation to section 21C and the contravention of section 21B. I will refer to self-employed persons when the House gets to it. Trust me - I will get there! I want to know the contravention of section 21B(2) in section 21C(1) that will attract a level 4 penalty. I will ask the same question concerning sections 21C(2) and 21C(3). What is the contravention?

Mr J.C. KOBELKE: The member’s question is mixing up the three intertwined parts, and, in part, relates back to only one section of the matter. The level four penalty requires that the definition of gross negligence be met. The House will debate that matter later. A death or serious injury occurs as a consequence of that action. The prerequisite the member is alluding to is that there must be a breach of the stated general duty of care. This provision contains the general duty of care.

Mrs C.L. Edwardes: What does contravention mean in this Bill? It is not defined. We will reach the definition of gross negligence. This is another indication that the definition of gross negligence is far too broad. If the minister cannot tell us what contravention means, imagine what the courts will do with it.

Mr J.C. KOBELKE: I do not think it is a problem.

Mrs C.L. Edwardes: It is.

Mr J.C. KOBELKE: The courts are already giving determinations based on this general duty of care.

Mrs C.L. Edwardes: They are; is that on “contravention”?

Mr J.C. KOBELKE: It is in the existing section 21(2). That word will not change. It will be removed but put back in.

Mrs C.L. Edwardes: Can the minister table in this House a precedent whereby contravention has been referred to, and a definition has been put?

Mr J.C. KOBELKE: I will certainly have a search done; if it is available, I will have it provided. I presume there is, but I cannot vouch for it.

Mrs C.L. Edwardes: It is vital to have it when we get to the penalties.

Mr J.C. KOBELKE: I give that undertaking.

Mrs C.L. Edwardes: I thank the minister.

Mr W.J. McNEE: When the minister speaks about a corporation, I think of a large corporate company. The minister can correct me as I am most likely incorrect. Everybody these days must be incorporated. Is that anything to do with, say, the local football club putting in a crop, as sometimes happens? Some of them may well be corporate bodies. I am not aware of the precise details of why these things are incorporated these days. Do they fall into that category?

Mr J.C. KOBELKE: There is expanded use of corporate structures, and issues arise concerning labour hire and corporations being employers, but not being judged technically to be the employer. Therefore, the Government is ensuring they are caught. This Bill is not driving change. It is trying to catch up with changes that have taken place. The member alluded to factors that drive the change, and it is not appropriate to enter that debate now. The Bill is


trying to recognise the way people do business these days. More people use corporate structures, which have been extended and used in ways not thought of before. Therefore, these structures should have the responsibilities that apply to an individual or a private company. A corporate structure should not be used to avoid those responsibilities.

Mrs C.L. EDWARDES: The reference that the member for Moore made to the local football club as an incorporated association is applicable to the definition of body corporate.

Mr J.C. Kobelke: We will get that answer to you.

Mrs C.L. EDWARDES: The minister will get back to the House the definition of body corporate. Yes, the local footy club could be caught up in this provision.


Clause 8: Part III Divisions 3, 4 and 5 and heading for Division 6 inserted - Mrs C.L. EDWARDES: Clause 8 will create a new division headed “Certain workplace situations to be treated as employment”. The first provision deals with a public authority. Business is to be defined as including a public authority. A public authority means a minister of the Crown, a state government department and any other body or person carrying on a social service or public utility. Can the minister relay to the House the reasons, apart from his wishes that the public sector be institutions of excellence and leaders in occupation health and safety, for the incorporation of public authorities into the Bill?

Mr J.C. KOBELKE: “Public authority” is defined and an explanation is provided. “Business” includes the operation of a public authority. The only use of a public authority is in this explanation of business. These explanations of terms have been introduced to address concerns that section 19(4) of the Act dealing with principals and contractors may not apply to some government bodies because the work undertaken falls outside the normal meaning of trade or business. New provisions dealing with principal contractor arrangements also use “trade” or “business”, and the explanation in section 23C makes it clear that the provisions will apply to public authorities.

Mrs C.L. EDWARDES: The example that I was given was that a grey area arose under the Prisons Act whether operations could be subject to improvement or prohibition notices by WorkSafe. That is a reason for the introduction of the measure. That covers that area.

Mr J.C. Kobelke: That is not the authority, but the contractor who may work for it.

Mrs C.L. EDWARDES: The AIMS Corporation, for example.

Mr J.C. Kobelke: Yes.

Mrs C.L. EDWARDES: That was one of the concerns raised last year. The issue I raised in the second reading debate, and was subsequently raised by the member for Murdoch, is very real. It is not a concern or a criticism; it is to be taken in no other way than explaining for the record the extent of the changes the Government is putting in place for public authorities. It is not only for public authorities, but also for ministers in terms of accountability in occupational health and safety. This change is significant. One could take the example the member for Murdoch raised yesterday concerning WorkSafe improvement notices to a government department or agency. If an order has not been complied with, and for some reason the explanation provided, as identified through internal memos, was that budget funds are not available for that upgrade, change, maintenance etc - I am moving away from the example, and refer to a likelihood - enormous onus would be placed back on the minister, the Treasurer and the departmental CEO. What will the Government do to put in place proper processes so that there will be no toing-and-froing between government departments, agencies and ministers about who will be likely to be sent to jail under a tier 4 penalty? That is an extreme case, but it is a real possibility. Chief executive officers are not always supportive of their ministers. At the end of the day, there could easily be a breakdown in relationships and the like. Covering one’s butt, to put it mildly, is well known in the bureaucracy. If people can pass it on to the minister of the day, I have no doubt that they will do so. That is a likelihood. What process will the Government put in place to ensure that the work gets done, that the government sector takes on the role of dealing seriously with occupational health and safety and that it is not just a case of buck-passing?

Mr J.C. KOBELKE: Public sector employees and management are already caught. The amendments we are making in this legislation do not change the effect of the law and the responsibility that exists. Those problems already exist and are being managed. We need to manage them better. However, that is already an issue. Currently, there is some difficulty in taking a prosecution within the public sector. There is a limited ability to do so. We are making it very clear in this legislation that it will be possible to bring prosecutions against public sector agencies and public sector management, and that can go right through to the minister.

Mrs C.L. Edwardes: I know that that has always been the case to a great degree. However, the issue is that there are now serious consequences. The penalties have been upped. There is imprisonment and gross negligence. There is a likely chance of buck-passing. What requirements will the Government put in place for agencies to meet their occupational health and safety responsibilities?


Mr J.C. KOBELKE: We are already doing that, and it is a task that we must continue.

Mrs C.L. Edwardes: What are you doing?

Mr J.C. KOBELKE: We have a special unit within the Department of Consumer and Employment Protection.

Mrs C.L. Edwardes: Must the CEOs report on it?

Mr J.C. KOBELKE: No. Work is being done with government agencies in which there are designated issues. One of the issues that is being worked on relates to the purchase of cars and whether, in seeking to get cheaper vehicles, the agencies were perhaps getting less safe vehicles. People have been looking at the standard that should apply. Another area relating to vehicles has been raised with me when I have been in regional areas. When people go off road and into areas that are a long way from the nearest settlement, what standards are required for their vehicle and their provisions, and what are the costs associated with making sure that those people are properly equipped for their own safety? There are operational issues in those areas as well. Should a work roster be left for people that means they must drive after dark in an area in which there might be a lot of kangaroos, or should their work be structured so that -

Mrs C.L. Edwardes: Are you going to redo the Parliament House roster accordingly?

Mr J.C. KOBELKE: If the kangaroos become abundant in this area, we might have a problem. They are real issues. They are being dealt with, and we have a lot more work to do in that area. However, that is not being changed in this legislation. The fact that that there is the potential to take prosecutions will help drive it harder and make sure people take it seriously. The State of Western Australia, as a corporate body, and other corporate bodies cannot themselves have imprisonment.

Mrs C.L. Edwardes: No, but the minister or the CEO can.

Mr J.C. KOBELKE: However, there is a further burden of proof for those individuals as opposed to the system being shown to be a vital part of the failure to meet the standards required.

Mrs C.L. Edwardes: If the argument used is budget constraints, what process will the minister put in place - if I were a minister, I would look at it - to ensure that no excuse is made, such as, “Sorry, our budget is set and we cannot spend the money”?

Mr J.C. KOBELKE: We must work that out. The private sector and businesses do that every day. They must work out how they can remain viable and productive, and still give proper attention to occupational health and safety. The overwhelming majority of companies are able to manage that. There might be a bit of pain from time to time when they must make an adjustment and put in new equipment or change around a process, but they manage it. Similarly, in the public sector, with good managers, which we have, they will manage it.

Mrs C.L. EDWARDES: I will come back to this when we deal with the definition of “gross negligence”. However, the knowledge does not have to be actual knowledge. A minister of the Crown or a CEO can have imputed knowledge from one of his public servants. I believe that will be a serious issue with the way in which the definition has been drafted. I am sure that it was not intended to mean the knowledge of an employer. As the minister said, in corporations in the private sector, that knowledge is already being used. Knowledge of an employee can be imputed knowledge from the CEO. That will be incorporated in this provision - very much so.

Mr M.F. BOARD: I am interested to hear the shadow minister continue her remarks about this issue.

Mrs C.L. EDWARDES: I am sorry, I resumed my seat before I realised we are still dealing with clause 8 and the rest of the provisions.

Mr J.C. Kobelke: There are other matters.

Mrs C.L. EDWARDES: There are plenty of other matters. I move on to proposed section 23D, which deals with contract work arrangements. It states -

This section applies where a person . . . in the course of trade or business engages a contractor . . . to carry out work for the principal.

The example the member for Murdoch gave yesterday was that he would be renovating his own home extensively and would be bringing in contractors to carry out work for him. That is the sort of example we are talking about. Proposed subsection (2) states -

Where this section applies, section 19 has effect -

It must be remembered that section 19 is the general duties section -

(a) as if the principal were the employer of -

(i) the contractor; -

The householder who will be renovating his home will become the employer of all those people that he brings into his home to do the work -


and

(ii) any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned, -

Therefore, he will become the employer of not only the contractor but also the contractor’s workers -

in relation to matters over which the principal has the capacity to exercise control;

The householder is not an expert in plumbing or electrical work.

Mr J.C. Kobelke: I draw the member’s attention back to the introduction. It states that this section applies where a person in the course of trade or business engages a contractor. I used that term when I spoke previously. If a business engages someone for a personal matter that does not relate to its trade or business, that is not captured by this provision.

Mrs C.L. EDWARDES: Okay. A householder may be doing extensive renovations for a friend, and it is a sideline.

Mr J.C. Kobelke: The issue is that it is not his trade or business. There might be a grey area in between, whereby the person has a second job of renovating houses.

Mrs C.L. EDWARDES: Yes, and he gets money for it. He becomes the employer of the contractors and the contractors’ employees. This is getting back to the capacity to exercise control. He is just the person pulling it all together. He is the facilitator or the bloke who is organising the rostering - who will come in and when. He pays all the bills and gets all the licences etc. He is not an electrician, a plumber or a tiler. How would that sort of circumstance apply under this clause when we are talking about the exercise of control?

Mr J.C. KOBELKE: The member has made it difficult for me to answer that question, because she has actually given a very good explanation of the situation herself.

Mrs C.L. EDWARDES: I do not have the answer to it. Is the minister saying that if a contractor does not have the expertise to do the electrical work, the plumbing work or whatever else, he has no control? He does have control. He has control over where the workers work and when they come to work. However, he does not provide the tools, and he does not control how they go about their work. Is the normal control that we understand in master-servant relationships the control that is envisaged here? Mr J.C. KOBELKE: We are designating a person as the principal if he has a contract to carry out work, in order to pick up situations in which people come in under labour hire arrangements or under contractual arrangements different from those we would normally expect from an employee. We want to cover that type of person so that he cannot opt out by saying that he is a separate company.

Mrs C.L. Edwardes: Is this the proposed labour hire section? Mr J.C. KOBELKE: No. That is in proposed section 23E. Mrs C.L. EDWARDES: What does the minister expect to cover by this proposed section?

Mr J.C. KOBELKE: With assistance from my adviser, I will attempt to answer the question. The control of work is a different matter. I will give an example that may help clarify the matter. A person may be the principal in charge of an estate subdivision development and have a range of contractors working for him. He may put out guidelines about the movement of vehicles, for example, which has been the cause of three fatalities in the past three months or so. Different contractors may have control over the particular work that is being done at the time, but the principal will have overall responsibility in terms of his control over the overall site. He will not be expected to control the contractor who may put the electrical services through the subdivision. However, he will still have responsibility, as the principal, for what is happening on the site. Mrs C.L. EDWARDES: In the example that I gave of the bloke who is renovating homes, even though he is not an expert, and it is not for his own purposes - it may be for investment, or it may be that he is doing it just as a sideline - he is the one who has employed the contractor and the contractor’s staff, so, under this proposed section, he would be the employer. Mr J.C. Kobelke: He would be the principal.

Mrs C.L. EDWARDES: He would be the employer of the contractor and the contractor’s staff, because he has control of the work site. Mr J.C. KOBELKE: Yes, to the extent that that control extends, which will be judged according to the particular circumstances of the case. Mrs C.L. EDWARDES: Proposed section 23D(4) states -

The further duties mentioned in subsection (3) are -

(a) the duties of an employee under section 20; and -

That section deals with reasonable care -


(b) the duties of an employer under sections 23G(2) -

That section deals with an employee who occupies residential premises that are owned or under the control of the employee’s employer, and the occupancy is necessary for the purposes of the employment -

and 23I(3).

That section provides that the relevant person must notify the commissioner of the injury.

Proposed subsection (3) states -

Where this section applies, the further duties referred to in subsection (4) apply -

(a) as if the principal were the employer of -

(i) the contractor; and . . .

Therefore the contractor will now have duties, and the contractor’s employees will also have duties. Proposed subsection (5) states -

An agreement or arrangement is void for the purposes of this section if it purports to give control to - . . .

Therefore, the principal cannot say to a contractor that he, the contractor, has control of the work site. An investment company may put out for tender a contract to build an apartment block on a particular site, and put in place a contractor to perform that work. Would such a person be caught under this proposed section?

Mr J.C. KOBELKE: Yes, as the principal.

Mrs C.L. EDWARDES: I am trying to determine how far this proposed section will go. If an investment company were to put out for tender a particular job, it would expect the person who won the tender to do the work. It would expect that person to put up the fences and do everything that was necessary on the site. It would not want to know about the job until such time as it had to pay the bills. Why then would the minister regard the investment company as the employer and as being in control of all the work on the site? What situations is the minister trying to cover now that have proved to be a problem in the past?

Mr J.C. KOBELKE: The responsibilities are still there. This is ensuring that people cannot contract out of those responsibilities. It clarifies the issue of control.

Mrs C.L. Edwardes: If Main Roads put out a tender for building a road, is it the employer under this clause?

Mr J.C. KOBELKE: As far as control extends by being the principal, it has responsibilities.

Mrs C.L. Edwardes: I am trying to determine the extent of the control. If a Minister for Housing and Works is building a port or a set of Homeswest units, is he or she the employer under this clause?

Mr J.C. KOBELKE: The liabilities only come back if, for example, it can be shown that matters were set up in such a way that it was an attempt to abrogate their responsibilities.

Debate interrupted, pursuant to standing orders.

STATE FLAG BILL 2004 Second Reading

MR C.J. BARNETT (Cottesloe - Leader of the Opposition) [4.00 pm]: I move -

That the Bill be now read a second time.

The purpose of this Bill is to provide the legal status to the Western Australian flag that it deserves, and to ensure that this Parliament recognises the historic and cultural significance of the flag to all Western Australians. The state flag of Western Australia has been a symbol of our State for over 130 years. It is the pre-eminent emblem of Western Australia, marking out our State and our history as distinct from the rest of Australia. The flag has links to our indigenous people, our early explorers and our history as a British colony and continues to endure as an important part of Western Australia’s cultural heritage.

The Western Australian flag features a depiction of a black swan - one of Western Australia’s most important historical icons. The use of the black swan to symbolise and distinguish Western Australia predates federation and is a unique part of our history as a distinct settlement with its own traditions. Black swans are native to Australia and are found throughout the country. However, they were marked out as a special emblem of Western Australia thanks to our early explorers and settlers. In particular, the Dutch explorer, Willem de Vlamingh, who explored the lower reaches of the Swan River in 1697, named the river for the black swans he found there. The colour of the swans was of curiosity to the Dutchman, who had only experienced the white swans of Europe. Western Australia’s first free settlement was established on the banks of the Swan River in 1829 and was originally called the Swan River Settlement. The black swan is an important link to those early days. It appeared on Western Australia’s first postage stamp issued in 1854. In the 1830s it was used on bank notes, on the Swan River Guardian newspaper, first published in 1836, and the first issue


of the Western Australian Government Gazette also published in 1836. The black swan is especially significant to Aboriginal people, and is a part of many different legends and dreamtime stories among different tribes. In Western Australia, there is apparently a story that tells of how the family ancestors from part of the Bibbulmun tribe were black swans who had been changed into men. The black swan remains important to this day. It is a central part of the state coat of arms, appearing on the shield. The black swan was declared Western Australia’s bird emblem in 1973 and is used to this day to represent all manner of things that are Western Australian. It is therefore fitting that the black swan is featured on our state flag.

The Western Australian state flag is a British blue ensign with the state badge of the black swan on a yellow disc. Apart from a minor change in 1953, when the direction of the swan was changed to face the staff, our State’s flag has remained virtually unchanged since it was adopted in 1870. That we recognise the flag as the state flag of Western Australia is a historical convention as the flag has never been declared as our state flag by law. As one of our most important symbols, the flag deserves to be recognised by this Parliament and declared by law as the definitive flag for Western Australia. The Australian flag was given legal status by the Commonwealth Parliament in the Flags Act 1953. The Western Australian flag deserves similar status. This is a simple Bill that gives the design of the Western Australian state flag legal recognition and protection so that it cannot be altered without the agreement of Parliament. This is provided for in clause 4, which declares the flag as described in the schedule as the Western Australian state flag. This description takes the same form as the declaration of the Australian national flag in the Flags Act, which involves both a written description and pictorial representation.

Western Australians are proud of their heritage and share the strong bonds of community. Our flag is a symbol of our shared history, culture and identity, which have been forged through triumph and adversity. Our flag represents the pride we have in the achievements of all Western Australians and it is fitting that in 2004 - the one hundred and seventy-fifth anniversary of Western Australian settlement - that this Parliament should give appropriate recognition to our most important Western Australian emblem. It would be particularly noteworthy if the Act could be in place by Foundation Day on 1 June this year, which will be a special commemoration of the one hundred and seventy-fifth anniversary of the foundation of the Swan River Colony, and Western Australia’s progress into a diverse and prosperous community. This year is also a special year of anniversaries for Western Australia with the one-hundredth anniversary of the State Parliament building.

This Bill provides the opportunity for this Parliament to recognise the Western Australian flag and its place in Western Australia’s culture and history. I hope that all members will support its quick passage through the Parliament. I commend the Bill to the House.

Debate adjourned, on motion by Mr J.C. Kobelke (Leader of the House).

LAND CLEARING, REMOVAL OF RIGHTS OF PRIVATE PROPERTY OWNERS Motion

MR P.D. OMODEI (Warren-Blackwood) [4.07 pm]: I move -

That this House condemns the Gallop Labor Government for its blatant actions in removing the rights of private property owners to manage their own land through the Environmental Protection Act 1986 and Environmental Protection (Clearing of Native Vegetation) Regulations 2003 and in particular its failure to -

(a) give all farmers and pastoralists representation on the working group discussions from 27 February 2004 to 26 March 2004;

(b) provide workable regulations so that farming and pastoralists’ ownership and incomes are protected;

(c) allow landholders to clear one hectare or less per year per property around buildings, sheds, storage areas, farm water supply, dams and other infrastructure;

(d) give landholders the right to clear for new fencelines, access tracks, walkways, firewood, craftwood, paddock trees, construction sites and fence posts;

(e) provide automatic exemption to allow landholders to graze riparian zones to control fire hazards should the landholder deem it necessary;

(f) allow automatic exemption to allow clearing of regrowth;

(g) let farmers manage their own native vegetation as a commercial activity without any government interference;

(h) protect farmers’ rights by compelling them to negotiate with a working group loaded with bureaucrats, the Conservation Council and the Environmental Defender’s Office,

and calls on the Government to recognise private property ownership rights and acknowledge its failure to understand normal farming practice in its attempts to usurp private property ownership with this extreme, green, city-centric legislation.


I move the motion with some reluctance because I do believe that the Government would like to have workable legislation in this State. Certainly Her Majesty’s Opposition is of that view. It appears to me that the regulations that are being proposed in draft form and advanced for finalisation are draconian by any measure. The Government has failed to consult with those parties who are most affected. The first part of the motion refers to pastoralists’ and farmers’ representation on the working group.

The working group on the Environmental Protection (Clearing of Native Vegetation) Regulations was set up by the minister after a meeting in Mt Barker, at which the minister was roundly criticised by the 300 or 400 people who attended about the way in which the Government had gone about drafting these clearing regulations. The passing of the main Bill - the Environmental Protection Bill 2002 - allowed the regulations to be put in place. That discussion took place between 27 February and 26 March and, in the end, everybody just agreed to disagree. It should not have come to that. As far as farmer representation across the State is concerned, the Pastoralists and Graziers Association of WA is a major organisation and so is the Western Australian Farmers Federation. They represent farmers in Western Australia very well, but they do not represent all farmers. I must ask the question: how are other farmers who are not members of those two organisations represented, and why are the Environmental Defender’s Office and the Conservation Council of Western Australia involved in a discussion group with farmers and pastoralists about what happens on private property - I emphasise private property - because the Environmental Defender’s Office has nothing to do with what happens on my property. If we were talking about regulations for the clearing of public land, I would have no problem with any group being involved in an advisory capacity or taking part in some discussions, but that committee, which was chaired by Hon Ken Travers from the Legislative Council, floundered towards the end. I will quote from a letter written to Mr Travers from Craig Underwood, the Chairman of the Private Property Rights Committee of the Pastoralists and Graziers Association. It states -

That position slipped away considerably at the last meeting . . . and it should be noted the PGA flatly rejects negotiating away any day to day farm practices or the right to farm with the Conservation Council W.A. or Environmental Defenders Office representatives.

That is a legitimate argument. This is an attempt to resolve these regulations - unworkable regulations, I might say - with a group of people who are anti-farmer, anyway. What were they doing on the committee? They should not have been there. If the Government wanted cooperation from farmers and wanted to get some kind of resolution of this matter, those people should not have been on that committee. The joint response from Craig Underwood and Trevor De Landgrafft, the new President of the Western Australian Farmers Federation, said exactly the same things. The joint letter states -

In February 2004, WAFarmers provided a submission in response to an invitation to comment on the regulations. The February submission addressed broader impacts of the proposed regulations, including “right to farm” issues. Whilst this current submission is focussed on the draft working group report in relation to the regulations, comments made in the February submission remain pertinent and should be read in conjunction with those contained in this document.

The Western Australian Farmers Federation further states -

WAFarmers has participated, in good faith, in the Ministerial Working Group chaired by Hon. Ken Travers, charged with providing the Minister with advice in regard to the regulations. Regrettably, the working group has been unable to find common ground on many issues contained within the regulations.

One of the critical issues is this -

The State Government has consistently maintained that the regulations will not impact on normal farming practices. WAFarmers has consistently rejected this statement.

The major sticking point in the Working Group’s debate is the “one hectare provision”.

The one hectare provision exists under the Soil and Land Conservation Act. The proposal was that if farmers were allowed a clearance of up to one hectare per annum per farm property for normal farm management practices, a lot of these regulations would not be necessary. The advice given by the soil and land section of the Department of Agriculture was that that one hectare provision has not been abused in any way. It could be argued that a farmer will clear one hectare this year and one the year after, but it really concerns only the areas around sheds, dams, stockyards and so on. It is a very good proposition that the minister should take up. I think it would resolve a lot of these issues.

I will now move to some of the regulations themselves. The regulations refer to a whole range of things. I have read the debates that occurred in the other place - which is not really my wont; I do not think there is a lot that this House can learn from the “House of Lords” - and I refer to a statement made by Hon Robyn McSweeney. She has championed the cause of farmers in relation to these draconian regulations by attending a number of meetings around Western Australia. She has picked up a number of technical points - things that even members on our own side of politics overlooked - and has been proved to be correct. I am sure the Minister for Agriculture also overlooked many of these issues. It is incumbent upon the Government to ensure that when regulations or legislation is brought in that will impact on


landholders and their property rights, the Government must get it right. It must ensure that when the legislation comes before the Cabinet, that not just one or two people have the charge of that legislation. I know the current Minister for the Environment is quite passionate about a number of things, but I do not think she was on the ball when these matters came before Cabinet, and they will have a major impact. Hon Robyn McSweeney said -

The minister even told me that he could not see anything wrong with these regulations. They are terrible regulations.

The response from Hon Kim Chance was -

I thought the draft 14 regulations were reasonable.

The regulations that came into my possession were draft No 13. I put the motion on the notice paper a few weeks ago and did not want to come into this House and make an absolute fool of myself - I am pretty good at it usually - but I noted that my copy was draft No 13. In order to do the right thing, I rang the Department of the Environment and asked if I could have a copy of draft No 14 of the regulations, just in case changes had taken place following the meetings chaired by Hon Ken Travers and attended by the Western Australian Farmers Federation and the Pastoralists and Graziers Association. I was told there was no draft regulations No 14, which means that the minister did not know what he was doing. Perhaps this minister can respond by way of interjection and advise whether there is a draft No 14 of these regulations? Dr J.M. Edwards: I do not know. Mr P.D. OMODEI: Obviously the Minister for Agriculture thought there was, and obviously this minister does not know. I will go through some of the matters in the regulations to highlight my concerns. Regulation 6, which is the main bone of contention, refers to prescribed clearing and section 51C, and states -

Clearing is of a kind prescribed for the purposes of section 51C(c) if - Then there is a whole table of what happens in relation to the description of clearing: clearing to construct a building and clearing of a site for construction of a building. These are exemptions, by the way. First of all, if refers to whether the construction is lawful and the clearing is no more than 2 000 square metres and so on. Then it tells us who the responsible person is in relation to that issue. Clause 6(3) states -

Clearing to reduce the risk of injury to persons if -

(a) The vegetation to be cleared exceeds 2 m in height; and

(b) It is not practicable to reduce the risk other than by clearing. That is all sensible stuff. Then we get to clearing for firewood -

Clearing to provide firewood use by the owner or occupier of the land on which the vegetation is located for domestic heating or cooking if -

(a) in the case of living vegetation - the clearing does not kill the vegetation and does not prevent regrowth of the vegetation; and

(b) the vegetation is not riparian vegetation. I will also refer to the explanatory notes. People are allowed to clear for firewood, but only for their own use. Farmers who have had dead jarrah trees on their farms for many years will be able to watch for the limbs that drop every year and to pick up only the sticks. The trailer load of wood that they used to take to their mums will no longer be allowed. That goes to show that whoever drafted the legislation did not understand normal farming practice. Draft regulation 6.6, headed “Clearing to provide fence posts”, is the daddy of them all, and states -

Clearing to provide fence posts for use by the owner or occupier of the land on which the vegetation is located for constructing and maintaining fencing on land in the possession of the owner or occupier if -

(a) in the case of living vegetation other than jarrah (Eucalyptus marginata) - the clearing does not kill the vegetation and does not prevent regrowth of the vegetation; and

(b) the vegetation is not riparian vegetation. This has changed from the early drafts, when a person could not even cut down a jarrah tree. If someone wanted to use a tree for fence posts, he could not cut down the tree if that would kill the tree. How someone can cut down a tree without killing it has me lost. I have spent my lifetime on a farm. Is there some other tree species that people can cut down without killing it? The minister would have been concerned about this. The exemption is Eucalyptus marginata, which is jarrah. What other vegetation can people cut down to use for fence posts that would not kill the tree? Does the minister know of any other species? Dr J.M. Edwards: The Lazarus tree, I would think. Mr P.D. OMODEI: I thought it might be jamwood. I bounced that idea off some of my colleagues. Jamwood trees are a couple of inches or 50 millimetres thick - I am still a bit old-fashioned. That wood is well known for its durability,


hardness and so on. That indicates that the people who drafted the regulations do not have much idea about practical, commonsense farming. Again, why would anyone want to interfere with what a farmer does on his own property? If a large area of forest is involved, the farmer must get a permit under the Soil and Land Conservation Act and through the Department of Environment. We are talking only about traditional things that farmers have done for generations. As I said during the debate on the original legislation, no farmer would deliberately destroy the asset that provides him with a living. We can go back through the history of Western Australia and the history of the clearing of land in Western Australia. There was a rabbit plague in the 1930s and the million acres a year clearing program occurred in the 1960s. No farmer went out to clear land to deliberately damage his livelihood, his long-term future or the very asset into which he had put his blood, sweat and tears. The clearing of this fantastic land of ours has destroyed many a body. For some jumped-up bureaucrat to come along and tell a person what he can do on his property after he has been farming for three generations is just a bloody insult, if I can put it in the country vernacular.

Point of Order

Ms A.J. MacTIERNAN: I think there should be a level of decorum. I think the member’s language is transgressing that.

The DEPUTY SPEAKER: That is an interesting remark. The minister has a point that it is language that is best avoided. I ask the member for Warren-Blackwood to continue and to be mindful of that.

Debate Resumed

Mr P.D. OMODEI: I will say three “Hail Marys” and a couple of “Our Fathers” to ensure that I am contrite enough. I have heard far worse language used in this place. It is something that farmers say. I am sure that the member for Collie was raised on words such as that. It has not hurt him.

Ms A.J. MacTiernan: Us urbanites are very sensitive. We are not used to it.

Mr P.D. OMODEI: I am not very sensitive about it at all. I am trying to describe something in a graphic way so that people like the Minister for Planning and Infrastructure can understand. I do not think she would be too averse to using the odd word or two from the same category. The minister is being very delicate about this. I will reiterate what I am trying to say: if I can find someone who can explain how a tree can be cut down for use as fence posts without the tree being killed, it will be a revelation to me. It is really an insult to the people who are having these impositions placed on them.

The other issue concerns clearing along fence lines. In the old days, owners of conditional-purchase land were required to clear a certain proportion of that land. The member for Bunbury is an old Nannup boy and will know that down in the Scott River-Lake Jasper area when conditional-purchase land was released in the late 1960s, people were required to clear a certain proportion of that land, fence it within four years and clear five feet outside the boundary, otherwise the block would be taken off them. People right around Western Australia now look at this kind of legislation and ask where we are going with it. The new legislation provides a width of 2.5 metres on either side of a fence. If someone wants to put a fence line through bush on his property, he is allowed to clear only 2.5 metres either side. That is a pretty tight squeeze for any modern-day machinery that would be used to keep the fence line clear. Mr F.M. Logan: That is five metres.

Mr P.D. OMODEI: It is 2.5 metres either side of the fence. Mr F.M. Logan: Five metres is a fair bit.

Mr P.D. OMODEI: We do not yet have tractors that can run over the top of a fence. When the scrub grows it will probably do a lot of damage to the tractors. A greater insult occurs with land that is adjacent to crown land. People can clear 2.5 metres on their side of the fence, but can clear only one metre on the other side of the fence. That means that access to that one-metre clearing would be only by foot. No-one could get machinery into such a narrow area to keep it clear. That is in great contrast to the permits that farmers have received in the past from the Department of Conservation and Land Management, which allowed four metres to be cleared outside the fence. That happened at my property. Dr J.M. Edwards: What is to stop you from getting a permit under this? Mr P.D. OMODEI: In my case it was state forest. I presume that this applies also to other types of land tenure. Otherwise, the legislation would again be flawed. When CALM officers came to burn around my place in December last year, they arrived with a bulldozer and grader and knocked down about 50 trees. They put in a magnificent break that is about 15 metres wide in places. I will make sure that it stays 15 metres wide, if I can. I will encourage the CALM people to maintain their firebreak. However, under this legislation, that break would be only one metre outside the fence. Bush invariably burns sooner or later. If it is not control-burned, it burns on its own or as a result of a lightning strike or whatever. If there is only a one-metre break, the wires on the fence will burn, even if it is a galvanised steel fence and even if the wind is blowing away from the fence. The practical side of this matter is just nonsense. There needs to be a decent firebreak outside the farmer’s fence. In the end, what are we trying to protect? An extra two metres of bush? Some of these properties are large and have steep terrain and overhanging trees. What


happens when trees fall from state forest or crown land onto a farmer’s property? Who clears it up? It is certainly not the Government. I will give an example of how ridiculous our laws are. If a farmer’s land is bounded by national park and his cows get into the bush because a CALM or government tree has fallen across his fence, he is not allowed to use his dog to get his cows back onto his property because dogs are not allowed in national parks. A ranger recently told a farmer’s wife who was at the boat landing area at Donnelly River with a little black poodle that he hoped she would not let the dog get into the national park, because he would have to shoot it. How he was never shot for that kind of behaviour has me absolutely staggered! That happened only two months ago, yet people wonder why farmers get angry with the bureaucracy.

There is the issue of clearing along fence lines. There is also the ability to clear eight metre wide fire access tracks, provided there is no other cleared land nearby. The same applies to woodwork. There is a section on clearing for woodwork. Clearing can be carried out to provide timber for use by the owner or occupier of the land on which the vegetation is located for non-commercial woodwork in the nature of furniture making, wood turning or carving, but not of building or construction if, in the case of living vegetation, the clearing does not kill the vegetation and does not prevent the regrowth of the vegetation. Again, this is just nonsense. These are quite comprehensive regulations that were considered by that working group. Members can imagine the frustration of the rural people who discussed these issues. Changes were made to the amount of firewood that can be taken away. At one stage it was limited to only six cubic metres. On and on it goes. This motion is saying that the Government needs to take stock of itself and ensure that it brings in regulations that are sensible.

Paragraph (3) of regulation 4 of the Soil and Land Conservation Regulations 1992, “Notice of clearing”, states that subregulation (1) does not apply to the proposed clearing of land that is an area of one hectare or less. That would solve a lot of the issues with these regulations that people are talking about. There is no native vegetation left on my property, apart from that which is below the dam bank. I like to keep it fairly clean because vermin and blackberries on the property need to be controlled. The regulations also refer to wetlands. I could go through this ad infinitum. Different sections of the legislation refer to wetlands that had been identified in various Water and Rivers Commission studies of the Busselton to Walpole areas. Most of those wetlands have been cleared. Under these regulations, farmers would be prevented from maintaining their grazing lands and so on. People need only take a drive down the coast road towards Mandurah to see the hills and landscapes that have been dramatically altered in the name of progress and residential subdivision. Most of the city of Perth sits on a series of wetlands. A range of issues has arisen out of the subsidence of land when subdivisions have been built on wetlands. It seems as though there is one law for the city slickers and a totally different law for the cockies in Western Australia.

Ms A.J. MacTiernan: That’s right!

Mr P.D. OMODEI: Members opposite say that that is right and that is the way it should be. I put it to them that a number of people believe that the Labor Party in Western Australia thinks that Western Australia finishes at the escarpment and south of Armadale. That is why the Minister for Planning and Infrastructure spends money on railway lines instead of fixing up a few country roads.

Only last week a letter was written to the editor of the Countryman by a Mr Ferguson and a Mr Kenneison. The letter states -

The concern of this Government finishes at the top of Greenmount, with everything to the east being irrelevant. To heed the call to arms outlined in the article, a united front, by those whose property rights are affected, must be presented. This will assist in the defeat of this Government at the next election.

It goes on.

Ms A.J. MacTiernan interjected.

Mr P.D. OMODEI: I can hear somebody yelling in the background.

Mr W.J. McNee interjected. Mr P.D. OMODEI: I have a letter to Phil Shearer, the secretary of the Avon sub-branch of the ALP.

Mr W.J. McNee: Does he belong to country Labor? Mr P.D. OMODEI: I am not sure whether he is country Labor. He might be part of the 60 per cent of members of the Labor Party who belong to the union movement. He might be a member of one of those sub-branches that do not exist!

Mr W.J. McNee: I think he stood for them once. Mr P.D. OMODEI: He did. As a matter of fact, the letter I have in my hand is from the fearless Leader of the Opposition in 2000, Hon Geoff Gallop, MLA. The letter is dated 15 December and refers to land clearing policy. Obviously he is responding to Mr Phil Shearer. The letter states -

Your specific request was that I make a public statement to the effect that Labor, in government, will not consider any amending legislation in relation to land use or land clearing prior to publication of the final report on land clearing by the Legislative Council Standing Committee on Public Administration. Further, the sub-


branch has asked that any future legislation of this type should be referred to a Ministerial advisory committee with the involvement of Primary Industries and other appropriate portfolios.

Obviously that sub-branch has a bit of commonsense, even though it is a sub-branch of the Labor Party, and consists of practical people, because they come from Avon. The letter goes on -

I am aware of the significance of the issues that the Standing Committee is scrutinising and I believe that it would be appropriate for a Labor government to carefully consider the committee’s findings before proposing any legislative action. To do otherwise would be to pre-empt the committee’s final report on the matter.

It then states -

Similarly, such legislation would require thorough scrutiny and consultation by Cabinet, within the appropriate agencies, and by industry and the public, before it was introduced. No legislation of this nature is currently under consideration by Labor in any case.

There we have it - straight from the current Premier’s mouth. No such legislation will be considered. Where is the consultation with the appropriate agencies, industry and the public? Where is the thorough scrutiny of the Cabinet? Have we been led to believe that the Cabinet allowed the regulations and the legislation to go through, not realising that if a tree is cut down, it will die? I want the Parliament to know that this matter is very important to farmers. Some farmers are distraught over this matter at the moment. Even though this legislation encourages people to cut down fewer trees, paddock trees in rural Western Australia are going down like ninepins at the moment. The talk about this legislation is out there and farmers are taking matters into their own hands. I hope that, under the environmental protection legislation that has been passed, the minister will not send out her environmental police to prosecute farmers. What is the difference between a paddock tree that is 50 metres from the boundary or a patch of bush and one that is 45, 48 or 49 metres from the boundary or a patch of bush? If it is a paddock tree that needs to be removed to enhance the efficient running of a property, it should be allowed to be removed; farmers should not need permission from any bureaucrat for that to occur. That is the sort of thing that is in the legislation. Talk about using a sledgehammer to crack a nut! When we debated the original legislation, I said that it was giant overkill. In the old days the Soil and Land Conservation Act controlled clearing, and it still does to some extent. Soil conservation officers, many of whom were long-term, experienced men within the Department of Agriculture, came out to the farmer’s property and said that he was not allowed to do this under the legislation, but that if he did it another way, he would get a similar result. They were very good people. Can members guess what happened to them? They got a call one Friday night and got the DCM - “Don’t come Monday.” In the Swan coastal plain area, 15 land conservation officers were removed from their jobs. Guess who took over? It was the Department of Environmental Protection based in Perth. A land conservation officer, or equivalent environmental officer, who probably was just out of university and had no farming background, came down from the city to tell farmers what they could do with their properties. I recently had cause to ring the Department of Environmental Protection. The officers were very polite. It was the first time I had been in touch with the officer in charge of clearing, and I was told there was a 20-week wait for approval for clearance for a dam construction and a 22-week wait to clear trees. The people involved with that matter wanted to clear six or eight trees to extend their vineyard. They were told to wait 20 weeks. The best time to build a dam is when the sun is out, which is usually between November and about May. If an application has a 20-week wait, the dam cannot be built that year. Therefore, the farmer cannot do what he wants with his land, and cannot bring in the much-needed income to make ends meet on that property. It is a 20-week wait. Farmers are putting up with such things right now.

The second time I had cause to ring the department, its officers were again very polite. I must commend the people in the Bunbury office as they were very accommodating. I was told that I could not talk to the officer I had spoken to before. Since I called the last time, I was to be transferred to a person who takes all calls from members of Parliament. Members of Parliament do not have two heads. I have been around the south west all my life. I know hundreds of very good bureaucrats who do a very good job, and I have never have had cause to have a fight or argument with any of them. To be referred to a special officer because I might have some sinister plot to cut down some trees or allow someone to cut down trees is overkill. I implore the Government at the very least to listen to the Farmers Federation and the Pastoralists and Graziers Association. Listen to what they have to say. Look at what farmers do to protect their asset to ensure their water is not polluted, to ensure they have cut-off drains to stop phosphorous and fertiliser and other chemicals entering the water supply, and to ensure they have water for their cattle and wind protection for their crops. They do it anyway. This kind of legislation is an absolute insult to such people. A letter from the Premier stated that no such legislation was currently under consideration by Labor. With the greatest respect to you, Madam Deputy Speaker, and the position you hold in the Labor Party, I do not think anything stated can be believed. I tell the Parliamentary Secretary to the Minister for Agriculture, Forestry and Fisheries that his minister has been absent without leave on this issue. He obviously did not look at this legislation. If the Labor Party is putting through such legislation to ensure it gets support from the Greens (WA) at the next election, it is a disgrace. It appears to be the case. I do not like to be too critical of the Minister for Agriculture. I have good dialogue with the minister and


we have worked together on a number of things. He has been AWOL on this issue. The minister has been absent, full stop. Apart from fronting up at Mt Barker, and the bloke with the red beard giving you the rounds of the kitchen, Madam Deputy Speaker, the minister has been absent. This Government is completely out of touch on this issue. I implore the Government to sit down again and to start from scratch. Sit down with farmer groups and the land conservation district committees to discuss the matter. If the Government wants a summit, hold a summit, but please do not impose such legislation onto farmers in Western Australia.

MR J.P.D. EDWARDS (Greenough) [4.44 pm]: I support the motion. I start by paraphrasing part of a speech made by the then Leader of the Opposition, the current Premier, to a conference of the Western Australian Farmers Federation in 1999. He stated -

Australian farmers (and by farmers I mean all those men and women who make their living from the land) are among the most successful and independent in the world.

No-one would disagree with that statement. He continued -

Your industry used to preoccupy Australians and their governments. Much of our literature, distinctive vocabulary and traditional cultural values derive from rural Australia. In the 60s, that changed. Our mining and petroleum industries became the focus of government and business investment. Now we are told, information technology and financial services are the way ahead for Australia. Whatever priority we give to these new developments, we shouldn’t overlook our most efficient and enduring industry, farming and the people who work in it and how governments can better work with it.

I emphasise that point. The then Leader of the Opposition further stated -

. . . in States as large as Western Australia, there must be a prominent role for government in the provision of essential community services. It is all about fairness. It is all about equal opportunity.

He went on to say that these matters are the responsibility of State Governments, and that country people are being marginalised and portrayed as a drain rather than a resource. The Leader of the Opposition at that time undertook a regional audit taking him to 30 towns and communities from one end of the State to the other over 12 months. He stated in his address to the conference -

. . . it is of concern that some Australian governments are not in touch. Fairness is not achieved by making it harder for rural families to get access to education, health and other essential services.

He outlined that from the Kimberley to the south, he had seen small communities affected by the privatisation of Main Roads Western Australia and cutbacks to health services etc. He outlined that small businesses that serve farming communities had suffered from increased electricity charges. This referred to 1999. The current Premier then stated -

What we gained from the regional audit we conducted over the last 18 months, and from the unique opportunity to stop and listen for a while that a spell in opposition provides, is that farmers and country people generally have been taken for granted for far too long.

It is interesting that today’s Premier, the then opposition leader, made those comments. What has changed under a Labor Government? As the member for Warren-Blackwood rightly indicated, farming communities do not believe they are getting the support of the Labor Government. The Environmental Protection Amendment Bill 2002 was probably the most draconian piece of legislation ever to affect farming communities. I have not heard a farmer yet have a good word for it.

It would be true to say that some of the amendments, particularly the changes to the requirement for clearing of agricultural land, passed through this place with perhaps not enough scrutiny from some of us from rural areas. Perhaps we did not understand exactly its ramifications on the farming community. I commend Hon Robyn McSweeney in the upper House for her role in drawing the ramifications to the attention of not only the Legislative Council, but also the farming community and others. She delved a little deeper. Consequently, the Minister for the Environment and the Minister for Agriculture have had to amend some of their thinking and views on the matter. I suggest that a failing seems to have occurred in the coordination and communication between the two departments. Certainly, when it came to representation of the farming community, that communication was almost non-existent. Perhaps I will get back to that matter later.

I refer now to a matter that prompted me more than anything else to be aware of this situation. A group of farmers in the northern wheatbelt in the Binnu area have cleared land. In the first instance, it was illegally cleared. About three years ago, there was a very grey area in terms of application. The Department of Agriculture handled the applications for the Soil and Land Conservation Council, but it did not really understand, certainly not in the Geraldton region, to what those applications referred. I believe there was a misunderstanding between the department and the farming community. The farming community was frustrated and needed to get on with farming, and to be able to do what they have always done to crop and feed their animals, and to use their land as they saw fit. Consequently, they went ahead and cleared. I think some four families were involved. Two farmers were prosecuted subsequently. Having cleared the land, one farmer decided to not crop it. The prosecutions against the two farmers have now been withdrawn. They


have had two years of crops from their land. Consequently, they have probably made a reasonable profit in those two years. The one who did not crop his land has suffered some financial loss in those two years. He is now looking at a third year in which he will probably suffer another financial loss. The 200 hectares that he wishes to crop could probably make the difference between a profit or a loss from his property. Until last year there had been a drought. Therefore, he cut back his number of sheep and other animals and had been relying on cropping. Of course, the increased cost of machinery, fertilisers and other overheads has had an effect on his profit.

There certainly was not enough consultation with the farming community. Those farmers feel threatened by these regulations. They do not understand them; they have not been made clear enough to them. As the member for Warren-Blackwood has already commented, Hon Ken Travers chaired the committee that reviewed these regulations. I believe there was also a representative from the Western Australian Local Government Association, two members of the Pastoralists and Graziers Association and a representative from the Western Australian Farmers Federation. I believe there was a representative of the Environmental Defender’s Office (WA) - I question why somebody like that would be needed on a committee dealing with a farming issue - and two representatives from the Conservation Council of Western Australia. PGA and WAFF do not represent all farmers. Therefore, it is questionable whether the farming community was adequately represented.

There is no flexibility at this stage, or there does not seem to be any negotiated flexibility for the farming community to have the freedom to work their land for productive economic use under these regulations. The member for Warren-Blackwood went into a fair amount of detail about the distance and width of fence lines. I believe my colleague the member for Moore mentioned just now that a fence line is 2.5 metres. That is seven feet or something like that. Today, most tractors are probably eight to 10 feet wide. Therefore, a farmer would not get a tractor down one of those fence lines anyway. The blade on the front of the tractor that is clearing the area would probably be 15 feet wide. It seems to me that there has been no forethought and that no direction is being given by the people who put these regulations together. I suggest that they probably come from a university background and have never sat on a tractor or talked to a farmer, let alone tried to understand what rural pursuits are about.

I am being general in my comments because the member for Warren-Blackwood was specific in some of his comments, and I understand other people wish to speak to this motion. The farming community sees the development on the coastal plain around Perth - from Perth to Mandurah, back up to Guilderton and beyond. They see sand dunes being knocked over and wetlands being filled in, all for development. They feel - I believe justifiably so - that their right to farm to make their living is being jeopardised by people who come out of the grey mist somewhere and make rules and regulations, without any consultation with them and without giving any thought to the end result of their decision making.

As a passing comment, I indicate that one farmer in Binnu cleared his land and has not farmed it. He cleared about 500 acres early in the piece and grew trees and shrubs on it. He is now alley farming that land. For those who do not know what alley farming is, it is an avenue of trees that are spaced every so often. Farmers usually alley farm on the low ground. That is the sort of commitment farmers have to their land. They will not jeopardise that. As with any businessman, they want to get the best out of their property and out of the business they run.

I very much support this motion. I have covered most of the general points I wanted to cover. I come back to the fact that I believe there has been a real lack of discussion between the departments. From an environmental point of view and from an agricultural point of view, I would be interested to know what discussions there have been between Minister Chance and the Minister for the Environment. It seems that currently the right hand does not know what the left hand is doing. Some of the questions that have been asked in the other place and the answers that have been given do not seem to marry up with what has been put into the regulations. Much of this has been done on the run.

As I said earlier, Hon Robyn McSweeney has asked some pertinent questions and has constantly had the writers of the regulations running back to make changes to them. Those changes were not suitable, and they did not have answers to some of the questions. They had to do it again. It even reached the point that Hon Robyn McSweeney sent some 1 400 letters to the farming community. She was perhaps doing the Government’s job for it by consulting with the farming community and advising it about what was happening.

The Government needs to get its act together and resolve this issue as soon as possible. Quite frankly, farmers are now becoming stressed. It is impinging on their personal life. I am aware that some of the farmers about whom I have been talking are suffering not only financial stress but also family stress. This is affecting the way they operate their business. The minister should take cognisance of that and address the issue as quickly as possible.

I will comment on the prosecutions. There does not seem to have been much consistency with the prosecutions. They dragged on for far too long anyway. Even now, I do not believe that those two farmers who had prosecutions brought against them have been given an assurance that they will not be prosecuted again. There are many grey areas that do not seem to have been cleared up. Many people have been left hanging on decisions for far too long. This Government has been too indecisive. Again using the words of the member for Warren-Blackwood, I implore the minister to do something about it and to work and consult with the farmers and with local government, because local government has a role to play in this as well. The minister was at a meeting that I attended the other day. I know that local government


has some real concerns as well. The minister needs to address those concerns as soon as she possibly can and at least have some people on the ground who understand farming and what the farmers are looking for. She should consult with them and bring them on board so that they can work with her and not against her. Hopefully, the minister will find a solution.

MR W.J. McNEE (Moore) [4.59 pm]: Country Labor is absent again. That is par for the course. I was not going to talk about it, but country Labor members keep sticking their nose in. However, they are absent. Anyway, the voters are going to be absent on polling day, so do not worry. Clean out your desks, boys!

I think it has already been mentioned by the member for Warren-Blackwood, in the excellent speech that he made, that many years ago farmers had to clear every acre of their land to get a title, because they had to get rid of the vermin. That is one of the things that happened. I suppose that if we were clearing Australia today, we would not do it in that way. Imagine the huge task it would have been to try to crank up Australia in those days had the conditions that apply today applied back then. As I drive around rural Western Australia I see a wonderful, vibrant country that is threatened only by the rotten Government that we happen to have in this State - just temporarily, I must say; it will not last long. If I were to do it all again, I would do it in the same way, because the risk was worth taking. When we get back a Government that is willing to deal properly with issues such as salinity, we will get on top of these problems. When we get back a Government that is willing to work with the farmers, that will happen. That will not happen while members opposite are in government, because they are so keen on regulation and binding people up in red tape and tying the place up in knots, that they are running the State as though they are driving a car with the handbrake on. That is what they are really like.

Mr P.D. Omodei: And driving in reverse.

Mr W.J. McNEE: Yes - stuck in reverse, and driving at great speed.

In the late 1950s and early 1960s we had a competent Government called the Brand-Nalder Government. We were still clearing land in those days. The Government, through the then Department of Agriculture, encouraged all landowners, certainly in farming areas and in the wheatbelt where I was, to leave a two-chain strip of vegetation around the perimeter of their property. There was no compulsion. There were no bureaucrats running around with, as someone has said here today, the big stick. That did not need to happen, because the landowners in those days were responsible, hardworking people, just like the landowners of today, who are working on ever-declining profit margins, much of it caused by this Government. Make no mistake about it.

Mr F.M. Logan interjected.

Mr W.J. McNEE: The member for Cockburn can get up in a moment and defend, on behalf of Country Labor, his position. I would be happy for him to do it. I would be happy if all the members of Country Labor were to get up and defend their position. The socialists used to say that they want to own our land. We now have the modern-day socialist, with a few Greens chucked in. They are pretty close, are they not? They are paid-up members. However, they have come to realise that they do not want to own the land any more. They want to keep us working, and they will tax the guts out of us while we are doing it. They will direct us on what we can do with our land, because what they really want to do is have control over what people are doing on their land. They want to control people’s lives. That is the socialist philosophy. That is important to the socialists. For as long as I have been in this place while this Government has been in office, and in previous times before we managed to get rid of the other bunch, the one thing they have always talked about is getting control. They want to control us even more particularly if we are self-employed or have a business or whatever. They do not like that.

Mr M.P. Murray: If you get back into government, will you remove all the clearing bans?

Mr W.J. McNEE: The member for Collie should get up and say what he is going to do. I will not be here, so there is no sense in my making empty promises. I will say yes, of course I will, because my promise, if I were to make one, would be as good as the Premier’s promise on salinity and on no new taxes - as good as. Make no mistake about it. That is all right. The member for Collie, not me, is the bloke who will have to defend his Government on election day. I will be relaxing somewhere and having a good time. I will not have to answer to the people. The member for Collie is the one who is going to have to explain his Government’s attitude to rural people. I am glad I do not have his job, because he will be battling to do it. If I were the member for Collie I would be cleaning out my desk. I would not be leaving my desk too untidy.

I turn now to a decision by the High Court that dealt with landowners’ rights on fee simple. I will quote from some notes that I have been given. The notes state -

In the High Court of Australia decision between the Commonwealth-v-New South Wales Justice Isaacs describes Fee Simple or Freehold: “In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate” -

“A Fee Simple is the most extensive in quantum, and the most absolute in respect to the rights it confers”.


“It confers, and always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste, and, for all practical purposes of ownership, it differs from the absolute dominion of chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at present day confers an absolute right, both of alienation inter vivos and of devise by will”

That is what Justice Isaacs said. However, that is not what this Government is saying. This Government wants to interfere with my inalienable rights, and the inalienable rights of the people in my electorate. Who can remember the Community Drug Summit? That was a typical Labor show. All those people were brought into this Chamber, and they had all the answers before they even got here. Labor did that also with the salinity committee. It loaded it up with people who have no idea about farming, much less about owning a piece of land and what the heck to do with it once they have it. They would have no idea. Labor loaded up that committee, and now it is wondering why farmers are complaining because the committee came up with the wrong answer! The committee was so loaded that one could not get any reasonable argument out of it at all if one was a Pastoralists and Graziers Association of Western Australia representative or a WA Farmers Federation representative. It was hopeless. People in this place who are better informed than I am said precisely what would happen with the drug summit, and that is precisely what did happen. The salinity committee was a re-run of it. We need only to look at some of the dopey answers it came up with. It certainly did not provide workable solutions. That is the problem. We are proposing in the motion to allow landholders to clear one hectare or less per year per property around buildings, sheds etc. Of course we should. Why would we not allow that? It is part of management. It is not something farmers just go out and do. Mr A.D. McRae: So you are agreeing with it?

Mr W.J. McNEE: I am agreeing with what the member for Warren-Blackwood has put up. They are merely management issues, yet the Government wants to interfere with them in its socialist way. That is precisely what its regulations would be doing. That is fine, because everybody is talking about them, they are all scared of them and they will all be marching to the polling booth on election day and they will not be voting for the mob opposite.

I was on a farmer’s property the other day. He showed me a fence that he must replace within the next few months. I reckon that the fence is probably 70 years old. It is a rabbit-netting fence that passes through some timber that has never been cleared. I did not realise that there was a fence there until we came across it. It was completely overgrown. If he is to put a new fence there, he will have to clear that land. There is no way he will be able to deal with the wire other than by pushing it up with a bulldozer. There is no way that he can pull it out. If the Government intends to restrict his ability to clear to seven feet either side of the fence, it had better do the job for him because government members’ experience is obviously greater than his. I do not know what machine could work in that limited space. As the member for Greenough said, a bulldozer can have a 12 to 15-foot blade on it. People cannot hook up only one part of the blade. Those are the sorts of dopey, impractical ideas that are put forward by people who do not know what they are talking about. They have some fixed idea about what is good for my industry. They seem to think that they might save something.

The Government is setting that farmer an impossible task. He asked me, as a person who had farmed for a day or two, what I thought. The only thing I could say was that he would have to push what he had to push and that he would have to take up a bit of room. He asked whether the little inspector would be along. I said that I did not know but that what I had suggested was a practical and reasonable thing for him to do. That fence is 70 years old and has probably been overgrown by vegetation for 25 or 30 years, maybe longer. He said to me that it was his biodiversity patch. I said that he should use the expression more frequently because government members like that and most of them understand it, or pretend that they do. That is the sort of problem that stupid legislation creates. I have not had much experience with swamps because, as members would understand, people in the wheatbelt do not suffer a lot of problems with swamps. A chap was saying to me that on his property he had a swamp. He said that as the weather had been dry for some years the swamp had become slimy mud. He said that he would like to get a machine into the swamp and push the mud out to clean the swamp so that the water could come back. I have no idea whether the water would come back, but he told me that it would and so I accept it because he has been there for a long while. He told me that the wildlife that had vacated the swamp would come back. He said that he could achieve two things: he could get the wildlife to return and he could water his cattle. I would have thought that if the farmer did that, it would be a good thing. However, I have no doubt that if he spoke to the bureaucrats, they would tell him not to do it. He does not farm in the wheatbelt, but he might be in a constituency that one of the government members represents. If I were a government member, I would be urging the Government to look at those practical things. What socialists do not understand in their absolute desire to control things is the simple things that they stuff up when they make dopey regulations. Mr R.F. Johnson: Tell them what you mean, Bill. Mr W.J. McNEE: I am working hard. As the member for Warren-Blackwood has said, farmers should be allowed to manage without government interference. That is what I have been talking about. We do not want government


interference. It is an odd thing, but many years ago the skeleton weed levy was introduced. The member for Stirling will correct me if I am wrong, but I think when the levy was introduced farmers paid a certain amount of money on the first load of grain. It was all over, red rover.

Mr A.D. McRae: Did everybody pay it?

Mr W.J. McNEE: Every farmer who delivered a load of grain, whatever it was, paid the levy on his first delivery. If government members had enough brains, they would realise how government affects farmers. The levy has been gradually increased and farmers are now being asked for 65c a ton.

Mr D.A. Templeman: A ton or a tonne?

Mr W.J. McNEE: Members can please themselves. I have never bothered to convert it and I will not waste my time doing a conversion.

Mr B.K. Masters: Ask them the difference between a joule and a calorie.

Mr W.J. McNEE: All I know is that it comes off the bottom line. People now talk about the triple bottom line, whatever that means. God save me from it. I know it is bad news. I am saying to government members that when they light a fire they do not really know where it will end. They are quite happy to sit down without a care and impose regulations on farmers, and that is the end result. Of course, right will reign because, come election day, people will have the right to say that they have had enough of it. I urge the Government to talk to people like Craig Underwood who have a desire to get the right answer. They are farming people; they are not there to damage things but to ensure that their children and grandchildren can farm a piece of ground.

Mr A.D. McRae interjected.

Mr W.J. McNEE: The member can have his say in a minute. Country Labor members are not here but the member can have a go as soon as he likes. He can defend his position if he wants to. He need not worry, I am quite capable of defending mine. He should look after his own.

The point I keep making is that this Government is so keen on regulation and control that it is out of control and, what is more, it is creating a bureaucracy that is out of control.

Mr R.F. Johnson: Tell them again, Bill. I do not think they are listening. Have an extension!

Mr W.J. McNEE: They will listen on polling day, and they will be sorry that they did not listen to me. I urge the Government to have a look at this matter and support the motion of the member for Warren-Blackwood. It is an excellent motion, and I fully support it.

MR T.K. WALDRON (Wagin) [5.19 pm]: I support the motion. I have some real concern about what is happening to the rights of landowners across Western Australia. I know that many landowners have real concerns as well. Over the past 12 to 18 months it has been one of the major issues that have been raised at my electorate office in Narrogin. Many landowners have come to see me because they are confused about what is happening with the Environmental Protection Act and the regulations. I will come back to that in a moment. One thing that really brought it home to me was when we talked about farmers. Having come from a farming family, having been a farmer myself in my early years, and having been involved in the farming industry as a real estate person and as a member of the community, I have got to know farmers very well because I have dealt with them a lot over the years. As in every other industry, there are good farmers, there are great farmers, there are average farmers and there are some poor farmers; but, when it comes to the environment, I find that 99 per cent of farmers are real practising environmentalists. Things happened in the early days, but farmers were doing what they thought was best. I know that with conditional purpose land etc farmers had to clear and do things to develop their land. They were forced to do things and maybe some mistakes were made, but this is about going forward. Modern day farmers realise that some damage was done earlier, and they are about going forward.

About a year ago there was an environmental problem with a road south of Kojonup that was cleared before it should have been. It went through a process, and I was present at a meeting attended by a well-known farmer called Arnold Bilney, who was a great community leader, a highly respected bloke in his own right and very much an environmental farmer. One only has to look at his properties to see that. There was a person at this meeting who was very green, an environmentalist, and who may have been very well intentioned, but she demonstrated that sometimes people go over the top and get so carried away on their high moral ground that they forget about the practicalities and the realities. After this lady spoke, Arnold Bilney said to her that he felt she had shown him no respect. She was virtually saying that farmers and landowners just did not care and that they should not be doing anything; they should just stop and shut up shop. I acknowledge that sometimes a small percentage of farmers cause problems, and I think those in the farming industry would be the first to jump on them. Arnold Bilney said that farmers are the best practising environmentalists because their future and the future of their families rely on it. In future it will become more and more important. As we discuss these rights, we need to keep that in mind. Farmers used to say that they wanted to be able to do anything they wanted. Modern farmers are not like that. They realise that there have to be regulations, and that environmental issues


need to be addressed. Salinity is the biggest environmental disaster we face today, and we must acknowledge the great work that farmers are doing.

One of the main concerns of farmers is the over-regulation proposed in the environmental Bill. A lot of farmers are quite scared. I know that the minister has been to Mt Barker and that there is a lot of misinformation and emotion about, but some real issues need to be addressed. We have not yet seen the final regulations and people are still confused. There were so many amendments to the Bill. Consultation was mentioned. There needs to be a better plan for that consultation, and more people should be directly involved to help construct the Bill. That would help prevent the utter confusion, fear and misinformation.

People are very worried when they see the cases that were highlighted with the Department of Conservation and Land Management and Mr Carmody and Alan Yandle etc. Those sorts of issues have really put fear into rural landowners. That is understandable, when good, well-intentioned people, who are actually environmentalists, are being penalised because they are trying to do the right thing. If people deliberately transgress the law they must cop it. The problem is there is so much confusion that people do not know where they stand. Whatever happens from here on, people need to know where they stand.

I want to comment about some of the issues that were raised by the member for Warren-Blackwood and member for Moore. They have covered matters such as fence lines and the clearing of timber in paddocks etc. We need to make sure that whatever regulations are put in place, they allow practical and commonsense decisions to be made. I want to talk about fire, because I have a real fear, after going around my electorate and getting towards the more forested country, that there will soon be a major fire disaster in this State. Whatever we do with the application of these regulations, we must always keep in mind protection from fire, because if we want to protect the environment we must make sure we can control fire. Human life is a major part of our environment. We do not want any more loss of human life or property from fire and the very environment that we are trying to protect. I feel we will have a massive fire sooner or later. The member for Warren-Blackwood spoke about firebreaks, and I know that in my electorate next to Dryandra there were some problems with CALM and some local farmers about a year ago. The farmers actually support Dryandra because they know the environmental benefits of the Dryandra forest. I know the minister does. She was opening Barna Mia, which is a terrific set up. Farmers also acknowledge the benefits of that timber for their rainfall, windbreaks and shelter in some of the adjoining paddocks, but they do not want fire to destroy Dryandra or their farmland. They got together with CALM and made their own local rules. I do not know whether that was properly in line with the current legislation, but they got together and worked it out with CALM so that they could work in harmony to provide a commonsense, practical outcome that I hope will ensure there are no major fires there into the future.

I will now refer to firewood. People say we should not worry too much about the firewood side, but it is really quite an issue. This has been raised by people who cut firewood commercially or who want to use it on their own land. It is spelt out reasonably clearly, but I am interested to see what the final regulations are for firewood. People are now operating without permits who should have had them. I have told them that nothing will really change for commercial firewood gatherers, that they will still have to have the permit etc, but most of them did not know about permits anyway. That needs to be set out very clearly. Let us face it, there are heaps and heaps of wood-burning stoves - we probably do not need as many as we have - and firewood will become a bigger and bigger issue as time goes on. It is quite important.

Either the member for Warren-Blackwood or the member for Moore raised the issue of country people seeing development in Perth. That gets raised with me all the time. People are having these restrictions put on them, and to a certain degree they are happy as long as it makes commonsense, but they see these latest regulations as going over the top. They see all the development happening in Perth and it is hard for them to come to terms with that. Maybe some education is needed. I certainly do not know the forward requirements for the clearing of land for development as suburbs creep out in Perth. Environmental issues are also involved there.

I am not sure when we will hear about the final regulations. Will it be soon?

Dr J.M. Edwards: Yes.

Mr T.K. WALDRON: The real problem has been the ongoing battle with these regulations. I admit I am even confused about some of them, but they keep changing when different ideas are put forward. I hope some commonsense prevails and some of those regulations are watered down to achieve the desired results. Whatever happens, we will need a strong education campaign and the situation will need to be made clear so that people do not get caught breaking the law when they did not even realise they were breaking the law.

Another matter that worries me is the way the inspectors will apply the laws. People do not always agree with regulations. Obviously my constituents and I will not agree with some regulations. The education of inspectors and those who will police and enforce these regulations needs to be spot on. It is in the interests of everyone that these regulations be applied with practicality and commonsense; otherwise, there will be court case after court case, which will not help the Government of the day or the landowner. It will cause a lot of ill feeling. I guess solicitors will be


happy about that, but there will be a lot of costs for many people that will not be necessary if the regulations are enforced with practicality, commonsense and consistency.

Concessions should be allowed for the clearing of regrowth timber. Maybe that needs to be considered case by case. I am not sure how that will apply fully. In a number of cases, regrowth is an absolute mess. It does not do the environment any good. It would be better to clear it, leaving proper bounds of bush so that we have the best of both worlds.

The environment is vitally important to all of us. It is vitally important to the farming industry. Narrogin is struggling to raise $600 000 to complete the pilot oil mallee plant. It is a huge environmental pilot plant. I have spoken to the Treasurer about it many times. We have federal money and we need only $600 000. We have already invested $9.3 million of commonwealth and state taxpayers’ money. There is a possibility that the plant will not work, but I am confident that it will work. There are advantages down the track in having more oil mallee plants. It must be a positive thing to have that number of oil mallees planted in Western Australia, let alone the investment that will be made in the industry, particularly by Japan. Japan is waiting while we are haggling over $600 000 to get on with the plant; it is just sitting there. We can talk about the environment and the farmers who will get on board so that it works, but we need to progress that plant because it is vitally important.

Mr B.K. Masters: What about the farmers who have already planted oil mallees? That is a very significant investment and now one of their economic options is being withdrawn from them because that $600 000 has not been made available.

Mr T.K. WALDRON: The member is dead right. The other problem is that now is the time farmers should be planting more oil mallees, but farmers are asking why should they plant oil mallees, because if the pilot plant does not go ahead, they will not get a return. That is critical. Once the budget is brought down, I will put more pressure on the Treasurer. This is commonsense. We got an extra $1.4 million from the federal Government. I am really sincere about this. It is ridiculous to need only $600 000 when $9.3 million has already been invested. I know that the Treasurer supports the program, but he has lots of things on his plate. This is really important.


Mr T.K. WALDRON: Good. The parliamentary secretary needs to keep at him because it needs to be done, and done quickly.

I attended a conference in Katanning on forestry in the wheatbelt, which is a great initiative, and the oil mallee is part of that. A lot of farmers and landowners are extremely interested in getting involved in forestry in the wheatbelt. I think it is important and can be successful. Let us go for that. Let us apply commonsense to develop that initiative. All I ask is that we not go over the top and be ridiculous about these regulations and get into a situation in which inspectors rub people the wrong way by following the letter of the law completely. The next thing we will find is that there are court cases and bad feeling, and it will not progress our State at all. I support the motion.

MR B.K. MASTERS (Vasse) [5.34 pm]: In 1983 I attended a fundraising function held for the Liberal Party on the Dardanup property of June Craig, who was then a member of Parliament. It was in the lead-up to the 1983 state election. I clearly remember a minister by the name of Graham MacKinnon, whom some members will recall, standing on a rickety kitchen chair in the middle of the barbecue area and giving a warning to us Liberals at that time. He said, “Whatever you do, don’t allow Brian Burke to become the next Premier of the State.” He went on to say that Brian Burke had so little respect for the Parliament of Western Australia that he even wore safari suits into the Legislative Assembly. To be quite honest, I thought to myself, “Graham MacKinnon, you silly old coot. How on earth can you judge a person by the type of suit he wears?” I am both pleased and sorry to say that Graham MacKinnon was right. As everyone will now realise, only a few years later Brian Burke showed himself to be one of the most disgraced and possibly the worst politician this State has ever elected into the Western Australian Parliament. Even today, 17 years or thereabouts after he left government, that politician is costing the taxpayers of Western Australia significant expenditure of funds.

What does this story have to do with the motion before the House? When I first came into this place in 1996 as a newly elected member, I had been told by many people from all walks of life that private property rights were under attack in WA and that I should fight to protect the right of landowners to use their land for any purpose they thought desirable. To be honest, I have to admit to being somewhat sceptical at that time of that point of view. First, I did not believe that landowners and other property owners were losing their rights. Secondly, even if their land uses were being constricted or constrained in some way, the Government, in my view, would never expropriate land in unfair or inappropriate ways.

Just as I learnt from the warning given by Hon Graham MacKinnon in 1983, so I learnt very quickly in my first few years as a member of Parliament that Governments of all colours often have no respect for private property rights. I was a member of the Liberal Government for four years and I must admit that, in that four-year period, the Government in different ways attempted to expropriate or succeeded in expropriating private property rights from legitimate landowners. Very quickly I will mention some of them. The Swan coastal plain environmental protection policy was designed to protect wetlands on the Swan coastal plain. In the Leeuwin-Naturaliste Ridge Statement of Planning Policy


some 200 properties were to be zoned for conservation, effectively ensuring that no development would occur on those properties. In 1996 or 1997 the Shire of Busselton town planning scheme was before the State Government for approval. Western Power built powerlines across private properties without bothering to pay compensation and, in fact, without legislatively needing to pay compensation. Many members will know about the dairy industry deregulation, whereby a private property right - namely, the milk quota that was either given to dairy farmers or bought by them from other farmers - was abolished at the stroke of a legislative pen and no compensation was payable. There are still farmers in the Kemerton industrial area who, 10 or more years after the planning laws were put into effect in the area, cannot get compensation for the loss and diminution in value of their private property. In hindsight, the coalition’s record in my first year of Parliament was 50:50 in its actions in this regard. For example, I was able to negotiate with people like Graham Kierath, and we were able to arrive at an acceptable compromise. Some diminution of private property rights occurred, but there was payment of compensation in various forms for those losses of property rights. My biggest worry has been since the Gallop Government was elected in February 2001. This has been a significant disaster for one of the underlying principles upon which our society is based - respect for property rights. On significant and frequent occasions, the principle of respect for property rights I regret to say has been happily ignored by this Government. The worst example enshrined in the motion today is the control placed on native vegetation clearing in the draft regulations, the implications of which we clearly understand. That is the worst example by far. However, there are other examples. Western Power continues to build powerlines, including in my electorate, and either chooses to pay minimal compensation or no compensation for the loss of use of various private properties affected by the powerlines. The Water Corporation continues to build pipelines across farming properties, causing significant damage to the productive capacity of the property owners, yet minimal or no compensation is paid. I emphasise that the clearing controls under discussion today in the motion are the most draconian and damaging example I am aware of ever in Western Australia in their lack of respect for private property rights.

Why do I say that? In 1979 the Government of Sir Charles Court introduced a clearing ban in the catchment of the Wellington Dam on the Collie River. Two messages came from the decision of that former coalition Government. First, as there was no consultation with farmers at that time, I understand that within the three or four months between the rumour of the clearing ban entering the public arena and the creation of the law that effectively stopped any clearing, significant clearing of native vegetation took place on private properties. This was because landowners were not involved in the process. Government was acting, and bureaucrats were working in the background trying to achieve that control. The word got out, as it always does. Unauthorised and unwise clearing of native vegetation took place for three or four months. Only two years ago, someone from the Water Corporation advised me that it took from 1979 until 2001 for the land that had been cleared in that three to four-month period to be revegetated; that is, the impact was such that the salinity level in the Wellington dam catchment only then returned to where it was prior to the first rumour of the clearing ban. The first message from the actions of the Sir Charles Court Government of 1979 relates to the need for consultation. The State is going down exactly the same path in this case as that followed by Sir Charles Court’s Government in 1979. Consequently, farmers in the bush have been doing things that in many cases are illegal. However, in many cases they were given no choice, because they were forced into it by threats being made by the Government about the severity of the controls to be put in place on properties.

The member for Roe referred to the Queensland example. I have no facts or figures on that matter. However, in the early 1980s, the Don Dunstan Government talked about a clearing ban in the entire State of South Australia. Every bulldozer in South Australia and the western parts of New South Wales and Victoria was in South Australia for about six months bulldozing every square inch of vegetation farmers could pay to have cleared in the lead-up to the imposition of those laws. The message, minister, is that when doing such things, talk to the landowners and those who will be affected by the decision. The first message is community consultation. There has been virtually no such consultation on the clearing controls in this State. It is happening now, but the consultation is tokenism at best and landowners have a weak hand in negotiating with the Government.

The second message from 1979 is that once the clearing ban came into effect, all affected landowners were compensated for their loss of economic benefit as a result of the ban. Although the Government of the day in 1979 did not handle the community consultation aspect well, it respected private property rights. In other words, the Government of Western Australia knew compensation had to be paid for the restrictions placed on private property owners. The Queensland Government last year was re-elected on the promise of paying $150 million from the State’s coffers, with no federal money involved, as compensation to landowners affected by its clearing policy. That party was duly elected on a commitment to pay $150 million, and a commitment to allow another 500 000 hectares, or 5 000 square kilometres, of native vegetation to be cleared under a ballot process. That process has not commenced, but I understand it will be finished this year. The Queensland Government recognised the need to pay compensation for the loss of private property rights arising from a clearing ban.

I understand that the federal and New South Wales Governments are currently talking in a mutually beneficial way about the payment of compensation to landowners in New South Wales if a clearing ban on native vegetation is instituted. A federal election will be held in September, October or November this year. I expect some significant announcements to be made by the federal Government about the payment of compensation to farmers adversely impacted upon by a clearing ban. I hope this program will apply to Western Australia, but I suspect payments will


apply mostly to New South Wales farmers affected by the New South Wales Government’s desire to have a clearing ban in force.

Let us look at what this Government is doing. Firstly, it is bringing in no compensation. I have raised the question of compensation with the Minister for the Environment at different times in the past, and I think she is on the public record as stating that no compensation will be paid to farmers whose properties are adversely impacted upon by this legislation. That is a very serious omission in terms of one of the principles that should be enshrined in both the thinking of the Gallop Labor Government and the legislation that the motion today seeks to criticise.

The second reason for supporting the motion today is that the regulations the Government has proposed are unworkable. They are slowly getting better.

Mr R.C. Kucera: Are you suggesting it’s coalition policy to compensate landholders?

Mr B.K. MASTERS: Yes. I am happy to say it is. If the minister goes to the Leader of the Opposition’s web site -

Mr R.C. Kucera: I don’t normally read that.

Mr B.K. MASTERS: I cannot blame the minister for that. The second or third position statement written by the Colin Barnett Opposition after becoming the Opposition in February 2001 was about private property rights and a commitment to respecting those rights.

Mr R.C. Kucera: If the legislation goes through, do you intend to put that into your forward estimates?

Mr B.K. MASTERS: The minister is talking to an Independent member. I cannot make any commitment for the Liberal Party. I am sorry; maybe the minister should apply some influence to that party.

What is the consequence of the two very bad aspects of the legislation? I refer to the fact that no compensation is to be paid, and that the current regulations are unworkable. There are a number of consequences. The first is that there is a lessening of respect for government, for government processes and for the political process in the minds of those people whose properties are being affected in this way and in the minds of those people whose economic viability is being affected in this way. Politicians are not held in very high esteem by the public at the moment. The regulations that the Government is pushing through will not help remedy that lack of esteem for politicians in any way.

The second consequence of this legislation is that there is, and will be for many years, clearing by stealth. What do I mean by that? I mean that the accidental fire will go through a wetland or a bushland area. There will be the accidental spread of fertiliser from an area of pasture next to bush. That fertiliser will move into the bush because the wind is blowing in the wrong direction. The consequence will be that, without any active support of the landowner, weeds will move into that bushland. Therefore, effectively those weeds will clear out or diminish the number of native plants; in other words, clearing by stealth.

The third and most serious consequence of this legislation is that because so much bad faith has been displayed by government as a result of these regulations, the bushland that is theoretically protected by the minister’s new regulations will not be managed in the medium or short term. Therefore, it will degrade. I talked about accidental fire and the accidental ingress of fertiliser. There will mysteriously be lightning strikes in areas of sensitive bushland that will result in intense fires. Over time, the frequent and intense fires will cause ongoing damage to the biodiversity of the area. Farmers will stop laying fox baits because there is no benefit to them in looking after bushland when that bushland is simply an economic millstone around their necks.

[Leave granted for the member’s time to be extended.]

Mr B.K. MASTERS: The native vegetation that the minister is trying to protect under this legislation will degrade over time because she does not have the farmers, the owners of that bushland, on side. They will do as little as possible to manage that land that the minister and I both agree is of high environmental and conservation value and should be protected.

The question that must be asked is: why would a Government and its Minister for the Environment risk the protection and management of the bushland and wetlands in perpetuity, which is the very thing that their legislation is trying to achieve? The answer to that question is that the Government is trying to make short-term political gain. It is trying to get and retain preferences, primarily from the Greens (WA), at the next election. I am sorry to say - or pleased to say - that there is a false perception that the Greens delivered the Gallop Government into a position of power in the February 2001 election. The Gallop Government does not like admitting it, but an examination of the votes that were cast in the 2001 election and an analysis of the preference allocations show beyond any shadow of doubt that the preferences from One Nation put this Government into power. It was not the preferences of the Greens. They helped; I grant that. However, overwhelmingly it was the preferences from One Nation that put the Gallop Government into power.

The minister and the Government are now making decisions designed to shore up the Greens preferences at the next election. Although the Greens vote will be down in the next election, I am sorry to say that because of the actions of this current Government, the number of people who vote for One Nation will go down even further, and there will be a


stronger primary vote for the non-socialist parties and a stronger flow of preferences to the conservative parties, if I can use that term, rather than to the Australian Labor Party. I believe I know why the minister is doing what she is doing. It is all about short-term benefit. The sad reality is that she is sacrificing the medium and long-term environmental values of the bushland she is trying to protect because those values will degrade over time, and she is doing that all in the name of short-term political gain. I am sorry to say that the minister will be remembered as the Gallop Government’s minister who did more than any other minister to turn the gulf between city and country people into a chasm. That in itself is bad enough. However, I believe that at the next election the Government will lose virtually all of its non-metropolitan seats primarily because of this legislation. I refer to the motion itself. I am pleased to say to the member for Warren-Blackwood that I do not disagree with a single word in this motion and I would not change a single word. Essentially, the member for Warren-Blackwood has encapsulated the thoughts and fears of literally thousands of farmers and other landowners in the State of Western Australia in the half-page motion that is before us today. For example, paragraphs (a) and (h) of the motion summarise the fact that the Government is trying to be too clever by half. That is sad. It is trying to say to the farmers that it will work with them. It will even set up a working party, and there will be representation of the farmers on that working party. However, the farmers will be a small minority on that working party. They will be so heavily outnumbered by representatives of the Conservation Council of Western Australia, the Environmental Defender’s Office (WA) and the very bureaucrats who are following the minister’s direction on this legislation that the voices of sense and reason of the farmers will, as has been shown already, be ignored. It is clear from paragraph (b) of the motion that the regulations, as they currently stand, are unworkable. I understand that the member for Warren-Blackwood has dealt with some of the reasons that they are unworkable. I will finish with some specific comments on the motion. Probably the most important part of the motion is paragraph (c), which calls upon the Government to allow landowners to clear one hectare or less a year on their properties. When I debated the legislation with the minister in 2002, I think - I believe we were in the Legislative Assembly committee room at the time - at no stage was I given any indication that the principles enshrined in the Soil and Land Conservation Regulations, which had applied until that day, would not also carry through to the new legislation. The most workable and the most sensible part of the Soil and Land Conservation Regulations was that landowners did not need permission to clear or deal with native vegetation on areas of land less than one hectare. That is the monkey on the Government’s back. It is the greatest imposition on landowners. I plead with the minister on one matter. I predict that if the Government reinstitutes that one-hectare minimum clearing area, 95 per cent of the objections to the Government’s regulations will disappear overnight. I do not believe that the farming bodies - the Pastoralists and Graziers Association and the Western Australian Farmers Federation - will say publicly that that is their view. However, being a member of the WA Farmers Federation and having had many dealings with the PGA over the years, my belief is that if the Government reinstitutes the one-hectare minimum clearing area without a permit, the minister will be able to sleep easy at night for the rest of her term. Mr F.M. Logan interjected. Mr B.K. MASTERS: Because it is not part of their political process to say good things about socialist Governments. Mr F.M. Logan interjected. Mr B.K. MASTERS: Yes, I know. However, we are talking about political games being played. Mr F.M. Logan: I have never found the PGA to be a shrinking violet.

Mr B.K. MASTERS: That is true. The PGA will say that it has many other legitimate concerns about the legislation. However, I assure the parliamentary secretary that the one-hectare minimum area restriction is undoubtedly the most severe. I am happy to publicly state my support for the principles behind the legislation. However, it appears to be beyond the minister’s capabilities to turn those principles into practical regulations. That is not because the minister does not understand what she is doing. I believe the minister knows exactly what she is doing. The minister is effectively trying to bribe her way into ensuring that the Greens’ preferences continue to come the Labor Party’s way at the next election. I fear that although the minister may succeed in achieving that outcome, the regulations as they currently stand will not be respected by the people to whom they should apply. Therefore, the regulations, being unworkable, will be seen as bad legislation, and the minister will be held responsible for that adverse outcome. If the minister genuinely wants to protect native vegetation in Western Australia, she should work with landowners to achieve common goals. The current regulations are dictatorial, impractical, unfair and unworkable. I have no doubt the minister knows what she needs to do. I just wish she had the courage to do what is right. DR J.M. EDWARDS (Maylands - Minister for the Environment) [6.01 pm]: I thank the members who have participated in this debate. This is a useful and timely debate given that these are draft regulations and have been out for public consultation and are currently being considered within government. These regulations flow from the Environmental Protection Act, which is why they are Environmental Protection Act regulations. The purpose of the regulations is to streamline the process that is currently in place to regulate land clearing. I have found to my displeasure as I have gone around the traps that when I have raised some of the things that are already being regulated,


people have not always known that they are regulated. Therefore, we are dealing not only with the draft regulations and some new ways of doing certain things, but also with bringing people up to speed with the regulations that exist already.

Under these new regulations, biodiversity, soil erosion, water quality and salinity will be considered up-front under the application to clear, rather than the process that applies at the moment, under which a person must lodge with the Commissioner of Soil and Land Conservation a notice of intention to clear. That application to clear may then be referred to other agencies in a sequential manner, and it may take a long time to achieve a result, particularly if the application is referred from the Department of Agriculture to the Department of Conservation and Land Management and the Department of Environmental Protection, and then to the Environmental Protection Authority for assessment. For many people this will be a more streamlined and quicker process, because there will be a single point of contact. It is important to point out also that although the focus tonight has been on farmers, these regulations will apply all over the State, in the city as well as in the country, and will cover public landowners as well as private landowners. There will be much more equity in these regulations than exists at the moment.

It is important to point out also that the regulations are not a total ban on clearing, as some people are portraying them to be. They outline the way in which people will be able to get a permit, or, as can be found on many pages of the draft regulations, list what people will be able to do without a permit. I think some people are reading the list of what people can do with a permit as though people will need a permit to undertake those activities. The debate tonight has been useful, because I am awaiting the final report from the department so that it can help inform my decision.

I will now address some of the issues that have been raised. There has been consultation about the regulations. Consultation on the regulations started in August 2003. It was held mainly with the peak bodies. However, from August 2003 those peak bodies have been working with my department to look at what will be in the regulations and how they are put together. The draft that has been referred to tonight - draft 13 - was circulated in December of last year. It was sent to those peak bodies, and also circulated more widely in the community, and people were given about three months in which to comment on the regulations.

Mr J.P.D. Edwards: I know that the peak bodies were notified, but how much wider did it go? To which other people did it go?

Dr J.M. EDWARDS: The list of peak bodies is quite extensive. We assumed that the peak bodies would talk to their members and further afield. However, we extended the public consultation time frame when it became clear to us that some people were saying that only the peak bodies had been consulted and we were not casting the net wide enough. That raises an interesting issue as to how far we go down the consultation process and consult to death versus to what extent we ask the peak bodies, which generally have the strongest opinions, to talk to their members and spread the word in that way. In front of me now I have 69 submissions as a result of that public comment period. I also have the submission from the working group, which I will be going through in coming to the final set of regulations. When we do that, we will be consulting with the peak stakeholder groups in a final quick round to bring it all to a close.

People have made comments about the working group. I do not accept those comments. I think it is fine for the minister to set up a working group that has representation from the Pastoralists and Graziers Association of WA, the Western Australian Farmers Federation, the Conservation Council of Western Australia and the Environmental Defender’s Office (WA). The reason we have chosen to have representation from those bodies is that they have some very sensible lawyers who have made a significant and positive contribution to this debate. Obviously we have also had representation from the Western Australian Local Government Association, which has a lot of interest in this area. We had separate working parties dealing with WALGA to look at roadside conservation and clearing. So yes, within any group that is looking at regulations that cover the whole of the State, not just farmers, there will be disagreement. However, that working group has been important, because it has also found some areas of common ground, and that will help us all to move forward.

One claim has been put forward tonight that is categorically wrong. Some people have been saying that under the Soil and Land Conservation Act farmers can clear up to one hectare per annum. That is not true. It is up to one hectare, but no time frame has been put on it. I will take those comments on board. However, the people who make those comments need to realise the complexity that these regulations will apply across the State across the board, full stop. Although it may be easy to justify one hectare a year on a large property, it becomes more difficult if a farmer has a much smaller landholding on which sequentially over a short number of years, if we were to allow one hectare a year to be cleared, quite valuable and potentially conservation land could be cleared in that manner. It is a matter of finding an outcome that is practical and commonsense and that works for everyone who is covered by the regulations.

Another issue that has been raised is firewood. I believe we can make improvements with regard to firewood. I think that matter was raised by the member for Warren-Blackwood, and also a member on this side - and perhaps also the member for Wagin. People have come to me with their comments about firewood. That can be improved upon, and the working group has been looking at that.

Mr P.D. Omodei: I understand that it has been changed from six cubic metres to a greater amount. The problem is that if you cut down a green tree for fence posts, the regulations then prohibit you from using the rest of that tree for firewood, because it is a green tree. There are a lot of issues in there that are just not practical.


Dr J.M. EDWARDS: Presumably it would be possible to dry the wood and then use it as firewood anyway.

Mr P.D. Omodei: If you cut down a green tree, in a year it will be suitable for firewood.

Dr J.M. EDWARDS: Absolutely. I agree with that. We can bring more commonsense to that matter, and we will do that. It is a similar situation with clearing along fence posts. My instruction to the department before I get the final report is that it must use commonsense and reflect some of the things that actually take place. The member for Moore raised the issue of the fence line that has 70 years of regrowth over it. I have a pretty good imagination. I imagine that one can hardly see the fence and it is probably being held up by all that vegetation. We need to be sensible about this matter. The other day someone suggested to me that perhaps a farmer should walk around every bit of fence each year and make sure it is clear. I said get real. That is silly. I will not even countenance a suggestion like that. What I want is a set of regulations that will show commonsense and be workable.

Mr P.D. Omodei: These are not.

Dr J.M. EDWARDS: I think there are aspects of these regulations that are not, which we will look at, but I believe there are aspects that are workable and we will move forward on them. If the member gives me as much practical feedback as he wants to in the next few weeks, I will take it on board.

Mr P.D. Omodei: Read my script.

Dr J.M. EDWARDS: I sat and listened.

Mr M.G. House: You visited Mt Barker nearly six weeks ago. There has not been a lot of progress since then because the working party that has been trying to resolve some of the issues has not been able to get agreement out of your officers. You said in Mt Barker exactly what you have said just now. You asked people to give you examples and said that you would work on them and come up with some sensible solutions. People left that meeting with the view that you would have a genuine crack at resolving those practical difficulties. That has not happened.

Dr J.M. EDWARDS: It has not happened with the working group, but I am waiting on that working group’s report to me. A summary of submissions has come to me. I have made very clear to the department that we must have workable solutions. Some of the suggestions put forward tonight are not workable and some are not the truth. We need a commonsense, practical application.

Mr M.G. House: When you get people who interpret regulations in the way the Department of Conservation and Land Management officer Laurie Anderson does in Albany, it is very difficult to get people to work with you in a sensible way, because the guy is over the top.

Dr J.M. EDWARDS: I will respond to the member’s comments at the end. It picks up on something that the member for Wagin said.

I want to address issues that have been raised about firebreaks. These regulations contain nothing that alters the powers under the Bush Fires Act or the Fire Brigades Act, so there are no changes to current fire suppression arrangements or what people do in an emergency situation. If a fire control officer says that a firebreak must be so wide, that will be exempted under this legislation. The power of the fire control officer to determine what is needed locally to control fire remains as it is. We are not interfering with that.

Mr P.D. Omodei: Are you saying that the Bush Fires Act overrides the Environmental Protection Act?

Dr J.M. EDWARDS: It overrides these regulations, yes.

Mr P.D. Omodei: You know that the Environmental Protection Act overrides every other piece of legislation in the State.

Dr J.M. EDWARDS: If the member refers to the Act, a section of the Act lists the Bush Fires Act under the list of approvals that are exempted.

Mr P.D. Omodei: Why put the 2.5 metre and one metre provisions mentioned in the regulations?

Dr J.M. EDWARDS: It is because it refers to clearing to maintain or construct a fence line. It is not talking about the firebreak. It is quite separate. Does the member not want sometimes to be able to get into an area to construct a fence? He would not want to have to get a permit.

Mr P.D. Omodei: If you build a fence, you build it with a firebreak outside the fence. Every time you build a fence next to bush you build a firebreak.

Dr J.M. EDWARDS: People do not always do that. I have been to parts of the State where people have not built firebreaks.

Mr P.D. Omodei: Is that right?

Dr J.M. EDWARDS: That is right.

Mr P.D. Omodei: What happens to their fences when the first fire comes through?


Dr J.M. EDWARDS: Sometimes they are burnt down!

The member for Moore talked about a five-metre fence line not being enough. That again has been discussed with the working group. It is clearly silly to have a regulation if machinery cannot fit into the fence line. That is being looked at, and I look forward to seeing what the officers finally come up with.

The member for Wagin made the comment that farmers are some of the best practising environmentalists. That is probably true. He then went on to make comments about the recent Carmody and Yandle cases, but I would urge some caution. The Carmody case was referring to clearing on a nature reserve. It did not have to do with clearing that they were doing on their own land; it was clearing on a nature reserve. That is why CALM became involved. The member then went on to make comments about how regulations are effectively policed. This really picks up the comment of the member for Stirling; that is, of course when policing regulations there must be as much consistency as possible across the whole State between different officers, because in a State as large as ours, officers are based throughout the State. I have been talking to the department about the need to get that uniformity of view and the training that must occur with our staff who are responding to questions about what is exempt, when a permit is needed and, if unlawful clearing has occurred, how it is looked at. Consistency is important. I am involved in discussions with the chief executive officer to make sure all those things are set up.

Mr M.W. Trenorden: The Avon National Park, which I hope you have been to, is a magnificent national park at the bottom of my electorate. However, because CALM has not maintained the roads, members of the public are driving their four-wheel drives through the bush to get around potholes, rocks and other things they do not want to drive through. You cannot allow that, particularly in a national park, when the prosecutions you just talked about are allowed. It makes a mockery of the whole process. There is a cottage in the Avon National Park and a ranger, but he has been removed from the park for most of the time because of under-resourcing.

Dr J.M. EDWARDS: I am happy to raise that matter with the Department of Conservation and Land Management. Attention must be paid to the roads. I will follow-up on that matter.

The member for Wagin raised some other issues. I have dealt with the issue of firewood. Regrowth is proving to be a tricky issue. However, the working group has been paying a lot of attention to it.

Finally, I refer to the comments made by the member for Vasse. Perhaps he was making comments setting out his re-election platform as an Independent member. Although it was an interesting argument, it was not entirely relevant to what is being discussed tonight. It is important to emphasise that we are not talking about a clearing ban; it is a system to regulate clearing. Clearing will continue to occur because people have exemptions that are laid out in these regulations. Perhaps they are not as clear as they could be, but certainly people will be able to see the exemptions. If people are not eligible for an exemption and they want to clear land, they will have to apply for a permit. The process of getting a permit will be carefully laid out and people will know what must be done.

The member for Vasse raised the awful prospect of clearing by stealth. In doing that, he has undone the arguments of other opposition members tonight. The member for Wagin said that farmers are model environmentalists and the member for Vasse has told us that the farmers will firebomb and fertilise land to clear it by stealth.

Mr B.J. Grylls: We will run with what the member for Wagin said.

Dr J.M. EDWARDS: Absolutely. The member for Vasse also raised the issue of not compensating people when they are not permitted to clear their land. It is important to point out that these regulations cover the whole of the State. When people who live in the city are told they cannot clear certain areas of land, they do not get compensation and neither will people who live in the country. The Government is considering what assistance can be given to people in the country and what type of adjustment, or whatever set of words are used, can be made to help those whose livelihoods are affected when this decision is made.

As I said, I am waiting on the final reports, the compilation of the 69 submissions and the final report of the working group. I intend to introduce a set of regulations that are practical and contain commonsense, but which, above all, are workable. Despite this debate, I believe that members share the common aim of wanting to ensure that the environment is properly protected.

MR M.G. HOUSE (Stirling) [6.18 pm]: I want to add a couple of comments to this debate. I am heartened by the comments the minister made a few minutes ago except that they are identical to the comments she made at a public meeting approximately six weeks ago at Mt Barker. In the meantime, a lot of effort and energy has been put into this matter by a combined working group that was chaired by a local government -

Dr J.M. Edwards: It was chaired by Hon Ken Travers.

Mr M.G. HOUSE: Was it chaired by Hon Ken Travers? Certainly the group comprised members of local government, the Pastoralists and Graziers Association of Western Australia and the Western Australian Farmers Federation. After talking to a couple of those members about a week ago, it is my understanding that they have not been able to reach any agreement about the issues that were raised by the minister. While I am heartened by the fact that the minister says she will still find a practical resolution, these are practical people who have been trying to come to some terms of


arrangement with her officers and at this point have not been able to find that common ground. That is of concern to me. We are talking about regulations and legislation. The legislation is already in place. The minister knows full well that she could tick off on any regulations and they could be changed the week after, in a matter of days or weeks, not necessarily by the current minister but by another minister who might take over her responsibilities, or after another election. The danger we face now is that there is legislation in place that allows some very draconian things to happen to people who own private property and who believe that they have a right and entitlement to do certain things. I think most of us accept that they do, because if we go back to the grants that were made in the early days of the colony, the principle of private property rights was enshrined and this Parliament has upheld them up until this legislation. It is the legislation that is at fault, in that it allows a minister by regulation to do certain things that are right outside our understanding of the principles of private property ownership. That private property ownership and the right to do things are under threat. In the past, Governments took land from people under certain circumstances. They have certainly learnt a lesson from that. Governments do not take land away any more; they just make it so damned hard to own and manage properly that it becomes an impossible task when the regulations are so difficult to enact in a sensible and practical way.

I want to make this point very clear about these regulations. I assure this House that it will not be long before some other minister, maybe of a different ilk, brings down a different set of regulations. This House may allow those regulations to pass and the other House may or may not, but it is the legislation that needs to be changed. There are a lot of very practical people out there who believe in land and soil conservation and they want to leave their land to the next generation in a better condition than they found it. This legislation does not allow them to trade off things. Like many other farmers and landowners, whether or not they earn their living principally from farming, I have planted thousands of trees, put in hundreds of hectares of contour banks and fenced land on soil tops. I have done all the things that are recommended with the scientific knowledge that we have today and behaved in a very reasonable and responsible manner. Farmers have spent thousands and thousands of dollars on no-tool machinery in our part of the world so that our soil will not blow away. We have put stubble back into the ground. We have done things that were not even thought of 10 or 15 years ago.

Mr F.M. Logan: Have you been through the wheatbelt? You can’t see from one side of the road to the other.

Mr M.G. HOUSE: Sometimes interjections are not of much value.


The ACTING SPEAKER (Mr A.J. Dean): Order, members!

Mr M.G. HOUSE: In this case they are of great value because they indicate that the parliamentary secretary, who has some influence on the Government and some responsibility in this matter, does not understand the practical aspects of what we are attempting to do in rural Western Australia. That is the danger. By his interjection he has highlighted the point I am trying to make.


The ACTING SPEAKER: Order!

Mr M.G. HOUSE: If the member wants to continue to describe farmers as ignorant, if he wants to continue by interjection to belittle the interests of farmers, then so be it.


The ACTING SPEAKER: Order, parliamentary secretary!

Mr M.G. HOUSE: His Government will have to accept the consequences of that in time. I hope it does.

To get back to the point I was making, what this legislation does not allow is for some compensatory commonsense and practical trade-off approach to what we are trying to do. I will give an example of that. This legislation states that a farmer cannot clear a single tree within a certain distance of another tree. It states that a farmer can clear only a certain distance from a fence line. Whether that is practical or not has not occurred to the people who drafted the legislation. It does not take into account that a farmer might have planted thousands of trees along a creek line within a few metres of that fence, or that an individual tree might be a hindrance to the way the farm operates as a practical agricultural enterprise; it takes none of that into account. I cannot see, for the life of me, why some commonsense cannot be applied to this legislation. If it is so easy to pass legislation, then surely it must be easy to apply a practical commonsense test to the sorts of things we are doing, and pay a bit of credit to and take heed of the people who apply sensible, commonsense measures on their land. At stake is the creation of an over-the-top, heavy-handed legislative response, and for what reason? Nobody has been able to say why.

We have been focusing on large-scale land clearing. Large-scale clearing largely - I stress the word “largely” - ceased in this State at least a decade or so ago. Some individual cases have been raised in which people want to clear large areas of land, but, by and large, that is not the case. By and large, people have been planting more trees than they have been clearing, except in the metropolitan area where land is being cleared for housing developments. It seems to be all right to do that. Members should look at the coastal dunes in the northern suburbs. A few years ago, a person driving


up north to Wanneroo would see a sign that said “Please don’t drive dune buggies in this area because you will degrade the sandhills.” It was there for ages. Mr Acting Speaker (Mr A.J. Dean), you would probably have seen it had you driven up north back then. Do members know when it came down? It came down when the developers moved in and levelled the site to build houses. That was the respect they had for the sand dunes. One week a person was not allowed to drive a dune buggy there because it would degrade the sand dunes, and the next week a developer was able to knock them flat to put up houses.

Mr F.M. Logan: Whose Government approved it?

Mr M.G. HOUSE: The member wants to be less of a smart alec interjector and more of a sensible and practical contributing member of Parliament than he has been to date. People are trying to find a practical solution to this problem, and, to that end, I commend the minister. I waited until she had spoken before getting to my feet to comment. However, she needs to direct her officers to move a bit further along the line and make headway on this issue, because it is of serious concern to people who are doing the right thing. Not everybody is a criminal and not everybody has done the wrong thing. Some have done the wrong thing and they have been prosecuted, and some have done the right thing and not been recognised. All I want to do on behalf of those people I represent is to achieve a practical solution. Farmers need to get access down the side of fences to clear a firebreak or to inspect fences. They need to be able to clear individual trees. If that needs to be compensated with a replanting scheme along a creek line area or another area of the property, such as a hill where it might catch the wind, then let them do that. However, I see nothing -

Dr J.M. Edwards: It does happen. You are only talking about the regulations. If you remember correctly, when getting a permit there is a type of offset allowed through the permit. This is essentially a list of exemptions in the regulations.

Mr M.G. HOUSE: There is no allowance in the legislation -

Dr J.M. Edwards: In getting a permit there is.

Mr M.G. HOUSE: No, there is not. There is no allowance in the legislation for a person to trade off a planted area and clear another.

Dr J.M. Edwards: In the legislation there is.

Mr M.G. HOUSE: No way; there is not.

Dr J.M. Edwards: Yes there is. I’ll show you later. It’s in the Act.

Mr M.G. HOUSE: I will be very pleased if the minister can show me where it is and demonstrate that it works in a practical way, because that is not the way it has been applied.

Dr J.M. Edwards: Nothing has been applied yet because it’s not proclaimed.

Mr M.G. HOUSE: Has this section of the Act not been proclaimed?

Dr J.M. Edwards: No.

Mr M.G. HOUSE: Is the minister saying that this is the same section?

Dr J.M. Edwards: Yes.

Mr M.G. HOUSE: Is the minister telling this House - I will be very pleased if she is - that if I want to knock over X number of trees, I will be allowed to do that as long as I plant X number of trees?

Dr J.M. Edwards: No, but I’m saying its -

Mr M.G. HOUSE: No! That is right. The minister is not telling me that at all. She is just telling me that I might be wrong, but she is not telling me that I can plant and trade off. What is the minister trying to tell me?

Dr J.M. Edwards: There is the capacity in there, in some circumstances, to plant and trade off.

Mr M.G. HOUSE: How high is the bar? Under what circumstances can that happen?

Dr J.M. Edwards: We had this discussion when we went through the Act. Essentially, they are the principles that the CEO has to abide by in making his decision when issuing a permit. The Act lists the set of principles as a schedule, and it contains other mechanisms that can be used to help in that circumstance.

Mr M.G. HOUSE: Now I am confused. The minister just interjected and told me that there was provision -

Dr J.M. Edwards: This is the list of exemptions, so if you are clearing two and a half metres this side of the fence line, you are fine. It is exempt; you do not need a permit. If you want to do other clearing, you must apply for a permit, and when the CEO does an assessment of your permit application, he has to take into account a whole lot of factors, but in there is the capacity to do what you have been talking about.

Mr M.G. HOUSE: I will be very pleased if it works in a practical way, and I will be very pleased if it is demonstrated that I am wrong. I will be very pleased if what the minister said is correct. However, to date I have not seen any evidence that that is the case.


Dr J.M. Edwards: I am sorry to interject, but part of the issue has been that the total focus is on draft 13 of these regulations, and there is not a draft 14; I have double-checked. When people read this list of exemptions, they read it more as something they have to do rather than as an exemption; that is, if they are within this exemption, they do not need to worry about a permit. That is why I think my departmental people have erred on the conservative side, because these are the exempt bits. We are getting the message from you guys that some of this is not as practical as it could be, and we will make it more practical.

Mr M.G. HOUSE: All I can say to the minister is that if what she is saying is right, I would be very pleased if tomorrow she put out a very clear press release enunciating that to the public at large. Then we can make the next decision about how we will move forward. If what the minister is saying is right, many people’s fears will largely dissipate. However, there has been no practical example of that from the working group, and I have spoken to a number of people involved with that group. That is not what they have said to me. I accept the point that I think the minister is making that there has been more focus on large-scale clearing than on some of the other issues in these regulations; that is, small clumps of trees, firebreaks and fence-clearing areas. I think that is where the emphasis has been. There is some confusion because some people have still been pushing for large-scale clearing. I accept that there has not been large-scale clearing to any extent in this State for some time. However, we are still talking about regulations. If the minister wants the legislative process to be clear, perhaps she should make that clear to the people who are trying to find a solution to the problem too.

Dr J.M. Edwards: As I have said, once we have the final set of regulations, we will have a communication campaign and give people really clear case examples.

Mr M.G. HOUSE: I return to the point that the reason for legislation is to correct a problem. That is why we legislate. With the legislation that comes through this Parliament, we are trying to correct a problem or address an issue that has arisen in society and make new laws that make the situation better, easier or simpler. That is the basic principle. I am trying to put to the House that we do not have a problem with where we are now. A number of people are working very hard to try to turn around land degradation, yet we are introducing legislation to thump them harder. That is basically what we are doing. We are not taking into account the effort they are making and the energy they are putting in. We are talking about clearing. What about water control on land? What about contour banks? What about global positioning system farming that now allows farmers to work on the contour throughout their whole farming system? All those things are practical, sensible things that are being done by farmers, and they are not taken into account. I cannot help think that this legislation was drafted by some people sitting in an office who do not have a good practical understanding of how agriculture works today. It works in a very different way from the way in which it used to. It certainly works in a better way. We admit the mistakes of the past. We have worked our hardest, tried our darnedest and spent a huge amount of our own money trying to fix it. Some of the problem has been left to us by previous generations on land that perhaps some of us did not own at the time. However, it is not through lack of energy. One would think that, with the way we are whacking landowners, there was some draconian scheme out there to leave this land in a degraded state. That is not the case. I wish the minister would clearly indicate that she supports farmers and is not opposed to them.

MR F.M. LOGAN (Cockburn - Parliamentary Secretary to the Minister for Agriculture, Forestry and Fisheries) [6.34 pm]: I will open my comments by agreeing with the member for Stirling, who raised the issue of the amount of land clearing that is occurring in Western Australia. He indicated that it is a minimal amount when compared with what happened in the past. He also indicated that more land clearing was probably going on in urban areas than in rural areas. I agree with the member for Stirling; he is correct. Statistics show that the amount of land clearing in Western Australia has dropped dramatically over the past 10 years. That is due to farm management by not only the current Government but also, I acknowledge, the previous coalition Government.

Mr M.W. Trenorden: Give them credit; it is also by the farmers themselves.

Mr F.M. LOGAN: And the on-site farm management by farmers themselves. However, farmers have received encouragement from the Department of Agriculture, the legislation that has emerged from this House and organisations such as the Department of Conservation and Land Management. I agree with the member for Stirling; the amount of land clearing that is now going on is minimal compared with what happened in the past.

The complaints that are coming forward at the moment concern the pointy end of the application of the amendments to the Environmental Protection Act. The amendments to the Environmental Protection Act have already been before this House. As a result of the passing of those amendments, regulations are now coming out, particularly on land clearing. That is the pointy end of putting in place and enforcing an Act. Often the objects enshrined in the fine detail of an Act create problems. People say that they did not realise it would be applied in a certain way.

Mr P.D. Omodei: The main body of the Act talked about environmental harm.

Mr F.M. LOGAN: Exactly.

Mr P.D. Omodei: This is not the pointy end at all. This is attacking farmers.


Mr F.M. LOGAN: Acts must have regulations, particularly when sections of the Acts need to be enforced and it is ordered that a particular process take place. Regulations go into the fine detail of what an Act means. When regulations such as these are spelt out in fine detail, their specific application can affect people’s private property rights. That applies with many Acts. The member for Vasse indicated the number of Acts introduced during the term of the coalition Government that impacted on private property rights.

I will first deal with the issue of consultation, which was raised as part of the motion moved by the member for Warren-Blackwood. As the minister pointed out, there has been a significant amount of consultation on this issue, on not only the legislation itself and the amendments made to it, including land clearing changes, but also the regulations that will emerge from the legislation. A significant amount of discussion has taken place with a series of groups across the State.

Mr P.D. Omodei: Which ones? Name them.

Mr F.M. LOGAN: It is not correct to say that there has not been proper consultation. If the member for Warren-Blackwood is saying that the Western Australian Farmers Federation and the Pastoralists and Graziers Association do not reflect the views of all farmers on these issues, who does? Are we supposed to get every, single farmer in to express his views on changes to an Act or a set of regulations? Which farmers would we choose? Would we choose Mr Jones or Mr Smith?

Mr P.D. Omodei: You would select people who have had a long history in land conservation and farm management.

Mr F.M. LOGAN: What criteria would be used to select them? They have organisations that represent them. Those groups represent the majority of farmers.

Mr P.D. Omodei: Can you tell me the percentage of farmers that the Western Australian Farmers Federation represents? It is about 20 per cent.

Mr F.M. LOGAN: The Western Australian Farmers Federation and the PGA represent the majority of land users, farmers and pastoralists in this State.

Mr P.D. Omodei: They do not.

Mr F.M. LOGAN: It is clear that they represent the majority. They are the right representatives to have on the working group.

Mr J.P.D. Edwards: Why did you not take the committee to the greater parts of the State?

Mr F.M. LOGAN: I will now deal with the issues raised by the member for Greenough on the way in which this Government has approached consultation. This Government has consulted to a far greater extent than the coalition Government ever did with any group in society on its Acts. We could go through the Acts that the previous Government passed one by one and consider the amount of consultation that it had with the rest of the community on those Acts. It was virtually nil. We bent over backward as a Government on many Acts, and this is one of them, to involve people in the consultation process. Part of that consultation -

Mr J.P.D. Edwards: The issue today is that you’ve not done so.

Mr F.M. LOGAN: The member for Greenough referred to the Binnu farmers. What came from that consultation? The member came to the House and raised a grievance against me. The Binnu accord came out of that process, did it not, member?

Mr J.P.D. Edwards: It hasn’t helped the farmers.

Mr F.M. LOGAN: Rather than running in and prosecuting farmers for land clearing, the Binnu accord involved working through the extent of the land clearing, the extent of the environmental damage and the extent of hydrological change. Only as a result of that investigation would a prosecution take place. None has taken place yet. With its consultation and its work with landowners on their clearing rights and potential breaches of the Soil and Land Conservation Act, the Government has been very flexible and accommodating in dealing with the rights of landowners. Members opposite know that, particularly in relation to Binnu.

I turn now to the guts of this motion. Sure, this is an issue about farmers who have problems with the regulations concerning land clearing. I have no disagreement with that. The member for Warren-Blackwood has raised a number of matters that he states indicate that the regulations are just not practical. The member should know, having been a big land clearer himself, not only on private land but also on public land as well.

Point of Order

Mr P.D. OMODEI: Under Standing Order No 92, imputations and personal reflections, this member is making unsubstantiated statements about me clearing public land. If he has such an allegation, he should make it by substantive motion. Alternatively, he should say it outside this place, as I will take his house off him, if he has one.

The ACTING SPEAKER (Mr A.J. Dean): There is a point of order. If the parliamentary secretary is making an allegation of illegal and improper action, he should do so by way of Standing Order No 92.


Debate Resumed

Mr F.M. LOGAN: There are two issues with respect to what I just said. I refer first to the member’s statement to the House a minute ago in which he indicated he substantially cleared his land. I think the words he used were that there is not much bush left on his land as he had planted it out with vines.

Mr P.D. Omodei: Do you know my property?

Mr F.M. LOGAN: No, I do not. I am only going from what the member for Warren-Blackwood said.

Point of Order

Mr M.W. TRENORDEN: I rarely rise on a point of order. You gave a ruling, Mr Acting Speaker, which should be adhered to.


Mr M.W. TRENORDEN: I am not trying to get up the member’s nose. I am saying a ruling was given that should be adhered to, and members should quietly and coolly go through the process.

Ms A.J. MacTIERNAN: I think the member is not demurring from your ruling, Mr Acting Speaker. He was simply moving on the debate and referring to statements that were made by the member for Warren-Blackwood. Perhaps he was just clarifying that he was not making allegations about conduct, other than repeating comments made by the member for Warren-Blackwood about the conduct he had engaged in.

The ACTING SPEAKER: I remind the parliamentary secretary that any allegations of illegal or improper conduct must be made through Standing Order No 92.

Mr P.D. OMODEI: The minister just flouted and challenged your ruling by saying I had illegally cleared the land. It is in Hansard. There is no evidence that I have cleared any public land at all at any time. I challenge members opposite to move a substantive motion on this issue; alternatively, take it up with any relevant government department. I have made a personal statement to this House; it is on the public record; I have not broken the law in any way. The minister, in a very smart way, tried -

Ms A.J. MacTiernan: Not at all; I did not say that.

Mr P.D. OMODEI: The minister should study the Hansard tomorrow and apologise to me if she is wrong.

The ACTING SPEAKER: I have made my ruling on the point of order. What the member for Warren-Blackwood has raised is not a point of order; it is more of a point of argument to refute previous statements.

Debate Resumed

Mr F.M. LOGAN: I will clarify what I said for the member for Warren-Blackwood and other members of the House. I have never alleged that the member carried out illegal land clearing.

Mr P.D. Omodei: You did. Read Hansard.

Mr F.M. LOGAN: No, I did not. I did not say that the member for Warren-Blackwood had undertaken illegal land clearing. I repeated what the member had said himself about clearing his own land. He had a legal right to clear his land. The member has made a statement to this House about the Main Roads verge outside his land. I did not say that he was convicted of clearing public land. I did not say that he acted illegally. I said that he knew about land clearing. The member for Warren-Blackwood can go back and check the Hansard to see what I said. I said he was well known for clearing land, from his own statement in this House tonight, and the previous public statement he made about the Main Roads verge clearing.

Point of Order

Mr M.W. TRENORDEN: I will repeat myself. I rarely stand for points of order in this House. However, I clearly heard the member say that the member for Warren-Blackwood is well known for his clearing of his own land and of public land. He clearly said it. You have ruled that that should be removed from the record, Mr Acting Speaker, and that if the matter is to be pursued, it should be done by substantive motion. The member should withdraw the comment about clearing public land.

Mr J.C. KOBELKE: There is obviously some sensitivity opposite, because I have been listening very carefully to the contributions to the debate, and the point of order taken by the Minister for Planning and Infrastructure. Members opposite have stood up on points of order and said things that did not reflect anything I heard said by either the parliamentary secretary or the minister. Again, the Leader of the National Party has stood up to make assertions about what people said, when I did not hear those people say those things. I was listening to the debate. Clearly, there is great sensitivity opposite. Your ruling, Mr Acting Speaker, related to people making accusations about illegality. The debate is about clearing of land, and clearly it is up to the parliamentary secretary to talk about the clearing of land and what may or may not be on the record. You have cautioned him and quite correctly made a ruling going to allegations about illegal or improper actions. The parliamentary secretary, since you gave that warning, has not done any such


thing. There is clearly a great sensitivity opposite, and one might question why there is such sensitivity. It is certainly a problem for whoever is in the Chair if people take points of order and, in doing so, make a claim that people have said things that they clearly have not said. The Leader of the National Party then made accusations against the parliamentary secretary that were not true. He might like to check the Hansard tomorrow. If he does, he will find his accusation does not reflect what the parliamentary secretary said.

The ACTING SPEAKER: There is no point of order. I have not directed anyone to withdraw any comments, but I have certainly directed the attention of the parliamentary secretary to Standing Order No 92. The parliamentary secretary will move on, please.

Debate Resumed

Mr F.M. LOGAN: Thank you, Mr Acting Speaker, I will move on.

Mr M.W. Trenorden: Hansard will be interesting tomorrow.

Mr F.M. LOGAN: The member for Avon should read the Hansard.

I will move on now to the reason that this motion is before the House now, and why it is a populist argument being put by the Liberal Party. I am not denying the fact that some farmers out there have problems with the regulations. However, when Hon Robyn McSweeney runs around, as the member for Warren-Blackwood indicated and as I know, holding public meetings and sending out 1 400 letters to farmers, as the member for Vasse indicated, she is getting people worried, particularly farmers. I submit that some of the information that is going out is not correct. People are being misled. The member for Wagin said that. He indicated quite clearly that people are being misled on this issue. That is happening in the south west of this State. Public meetings are being held, and farmers are being driven to fear and worry about the introduction of these regulations. As the member for Warren-Blackwood well knows, we all saw the outcome of this when we drove down to Albany, dependent upon which route was taken. However, I can tell the House that if people go through Donnybrook, Boyup Brook and Kojonup on the way down there, or even up the Albany Highway on the way back from Albany, they will see the results of the Liberal Party muckraking throughout the south west. Trees that have been in paddocks for nearly hundreds of years and have provided shelter for animals are being bowled over left, right and centre in the paddocks of the farms. The member for Warren-Blackwood knows that. The member for Vasse indicated that that is happening, as did the member for Wagin. One need only get in one’s car - you would know this, Mr Acting Speaker (Mr A.J. Dean) - and go past the properties in that region to see exactly what is happening on the ground.

The member for Warren-Blackwood said in this House that no farmer would deliberately destroy the assets that sustain his livelihood. I put it to the member for Warren-Blackwood that that is exactly what is occurring. The shade trees that were in those paddocks providing shelter for the animals and the stock are being bowled over left, right and centre. The member for Vasse said that they are coming down like ninepins. He is dead right. Why? It is because the Liberal Party and some of its members have been misleading people throughout this State. The farmers are scared senseless about what will happen with these regulations.

Point of Order

Mr P.D. OMODEI: I refer to Standing Order No 92, which deals with imputations and reflections on members and public people, including members of the Legislative Council. The parliamentary secretary is implying that Hon Robyn McSweeney has been spreading misinformation. If that is the case, he needs to explain what misinformation that member for the South West Region has been spreading in the south west of Western Australia.

Ms A.J. MacTiernan: That is not a point of order.

Mr P.D. OMODEI: Standing Order No 92 states that imputations of improper motives and personal reflections are disorderly. I want you to rule, Mr Acting Speaker, on Standing Order No 92, and deal with the reflections on the honourable member for the South West Region.

The ACTING SPEAKER (Mr A.J. Dean): There is no point of order. Obviously, members of the upper House must be treated with the same respect that we treat each other in this place. The parliamentary secretary is using standard parliamentary debating techniques. He is not impugning the personal reputation of any member.

Debate Resumed

Mr F.M. LOGAN: As I have pointed out and as the member for Wagin said, farmers are confused. They are unsure about the Environmental Protection Act amendments and the regulations emanating from those amendments. They are also unsure about the application of the proposed amendments. I put it to this House that the Liberal Party opposite is not helping the situation. The spin that it is putting on what the Government is doing is resulting in environmental vandalism and the unnecessary destruction of the assets of farmers.

Finally, I will come to the issue of private property rights. The members for Moore, Warren-Blackwood and Vasse talked about the Government passing Acts that take away people’s property rights. What a load of rubbish! I cannot believe that members opposite had the gall to stand in this place and say that private property rights are being


undermined, as though they have never been members of Parliament. What a load of rubbish! If they counted the number of agencies that have access to their property, my property and everybody else’s property, they would realise that between 10 and 15 federal and state agencies can walk onto their property at any time of the night or day by law when they believe they have a right to be there under their Act. We all know that. A Government takes land off somebody when it wants to. I will give an example in my electorate of the previous Government doing that. The Hope Valley-Wattleup Redevelopment Act took two town sites in the middle of -


Mr J.L. Bradshaw: Have you rescinded it?

Mr F.M. LOGAN: We had to fix up the compensation because the Act did not even deal with it, let alone Main Roads or the Water Corporation. The previous Government was so incompetent that it did not even deal with the issue of compensation. We had to fix that up for the previous Government. An interesting aspect is that some people in that area are farmers themselves. They are vegetable growers, potato growers and turf farmers. The legislation that the coalition Government introduced has had a major impact on their property values. However, do members on the opposition benches come into this place and say this was terrible and shocking, and they should not have done that? Of course they do not. This motion is rubbish and we should reject it.

Question put and a division taken with the following result -

Ayes (20)

Mr R.A. Ainsworth Dr E. Constable Mr M.G. House Mr P.G. Pendal Mr C.J. Barnett Mr J.H.D. Day Mr R.F. Johnson Mr R.N. Sweetman Mr D.F. Barron-Sullivan Mrs C.L. Edwardes Mr W.J. McNee Mr M.W. Trenorden Mr M.J. Birney Mr J.P.D. Edwards Mr B.K. Masters Mr T.K. Waldron Mr M.F. Board Mr B.J. Grylls Mr P.D. Omodei Mr J.L. Bradshaw (Teller)

Noes (26)

Mr P.W. Andrews Mr J.N. Hyde Ms S.M. McHale Mrs M.H. Roberts Mr J.J.M. Bowler Mr J.C. Kobelke Mr A.D. McRae Mr D.A. Templeman Mr C.M. Brown Mr R.C. Kucera Mr N.R. Marlborough Mr P.B. Watson Mr A.J. Carpenter Mr F.M. Logan Mr M.P. Murray Mr M.P. Whitely Mr J.B. D’Orazio Ms A.J. MacTiernan Mr J.R. Quigley Ms M.M. Quirk (Teller) Dr J.M. Edwards Mr J.A. McGinty Ms J.A. Radisich Mrs D.J. Guise Mr M. McGowan Mr E.S. Ripper

Pairs

Mr A.D. Marshall Mr S.R. Hill Ms K. Hodson-Thomas Mrs C.A. Martin Ms S.E. Walker Dr G.I. Gallop

Independent Pair

Dr J.M. Woollard

Question thus negatived.

House adjourned at 7.00 pm

__________


QUESTIONS ON NOTICE

Questions and answers are as supplied to Hansard.

TEACHERS, POLICE CLEARANCES

2424. Dr E. Constable to the Minister for Education and Training

Are all teachers required to provide a police clearance when they have -

(a) been appointed to a school;

(b) been transferred to a school;

(c) been appointed under merit selection to a new position; or

(d) accepted an employer initiated position in a new school?

Mr A.J. CARPENTER replied:

(a) All new teachers require a current police clearance.

(b) No, however there are processes in place to commence screening all existing teaching staff.

(c) Processes are in place to commence screening all existing teaching staff.

(d) As for (b).

MEMBERS OF PARLIAMENT AND MINISTERS OF THE CROWN, OVERSEAS TRAVEL

2662. Mrs C.L. Edwardes to the Premier

I refer the Premier to overseas travel by Members and Ministers of the Western Australian Parliament and ask for the financial years 2001/2002, 2002/2003 and the financial year to date -

(a) what are the names of each Member and Minister who travelled overseas, at taxpayer expense (excluding imprest);

(b) if Members and Ministers travelled overseas on more than one occasion during a financial year, what are the names of the Members and Ministers and the number of times they travelled overseas, at taxpayers’ expense (excluding imprest);

(c) what were the departure dates, duration and destination of each overseas trip referred to above;

(d) what was the reason for each overseas trip referred to above;

(e) what was the cost of airfares for each Member and Minister for each trip referred to above;

(f) for each Member and Minister, referred to above, what items and costs were charged on the Government supplied credit card;

(g) have these expenses been audited;

(h) on each occasion, referred to above, did the spouse or partner of the Member or Minister travel at taxpayers’ expense;

(i) what was the reason given for the spouse or partner to travel at taxpayers’ expense;

(j) on each occasion that a spouse or partner travelled at taxpayers’ expense, what was the associated costs of airfares and the breakdown of those associated costs;

(k) for each occasion, did a member of staff, public servant or public sector employee travel with the Member or Minister and for each occasion, how many travelled, what are their names and positions held and for what reason did they accompany the Member or Minister;

(l) on each occasion, what was the cost of airfares, accommodation and other expenses charged to the Government supplied credit card by these staff, public servants and public sector employees;

(m) have these expenses been audited and if not, why not;

(n) for overseas travel using imprest, has the Premier received a report from each Member outlining meetings and functions attended; and

(o) will the Premier table the reports?


Dr G.I. GALLOP replied:

(a)-(o) Details of travel undertaken by Members and Ministers are contained in the quarterly reports tabled in Parliament. The reports show the purpose, cost, period of travel, destination and the names of those persons who travelled with the Member or Minister. Travel expenses are subject to the same annual internal and external audits as other expenditure. The quarterly reports and reports from Members travelling overseas or interstate under the Imprest System for Members of Parliament Travel have been tabled up to 30 June 2003. Work is proceeding on the outstanding reports and these will be tabled as soon as possible.

CANE TOAD TADPOLES, ADVERTISEMENT

2692. Mr B.K. Masters to the Parliamentary Secretary to the Minister for Agriculture, Forestry and Fisheries (1) Is the Minister aware of the article in The West Australian of 2 April 2001, which stated that a Perth

newspaper had carried an advertisement for the sale of Cane Toad tadpoles? (2) Did the Department of Agriculture investigate this advertisement and, if yes, what was the outcome of the

investigation? (3) What are the current penalties for possessing and/or selling specimens of such a noxious species in Western

Australia? (4) What legislation allows action to be taken to prevent the deliberate introduction of a pest species such as the

Cane Toad and which Government agency enforces this legislation?

Mr F.M. LOGAN replied: 1. The Minister is aware of the article in West Australian of 2 April 2001, which stated that a Perth newspaper

had carried an advertisement for the sale of Cane Toad tadpoles. 2. The Department of Agriculture investigated this matter thoroughly. On 1 April 2001 (April Fools Day), the

Sunday Times carried an advertisement stating: Bufo marinus tadpoles for sale, ph. 9442 0300. Subsequent enquiries, with the assistance of the WA Police Service, indicated that the advertisement had been placed by someone who gave their name as ‘B. Cane’, of a Midland address. This was a false name and address. The telephone number given in the advertisement is actually the number for the Department of Conservation and Land Management’s Crawley office. It was concluded that this advertisement was a prank.

3. Under Section 77 of the Agriculture and Related Resources Protection Act 1976, administered by the Department of Agriculture, a person convicted of possessing a cane toad or any other animal prohibited under the Act, could expect a penalty of up to $1000 for a first offence and up to $5000 for subsequent offences. Under the proposed Agriculture Management Bill, a maximum penalty of up to $50 000 will apply to any individual that knowingly and illegally introduces a prohibited organism such as a cane toad into the State.

4. The Agriculture and Related Resources Protection Act 1976, administered by the Department of Agriculture, allows action to be taken to prevent the deliberate introduction of pest species. Inspections are conducted at both road and air checkpoints into the State. All reports of suspicious frogs are investigated. Extension materials are made available to the community via the department’s website, displays at agricultural shows and other events and via regular media releases.

NOT-FOR-PROFIT COMMUNITY GROUPS, LEGAL ACTION

2726. Mr B.K. Masters to the Minister for Consumer and Employment Protection (1) Is the Minister aware of any cases where not for profit community groups were sued or threatened with being

sued for negligence or for any other reason? (2) Were any of these groups incorporated under Western Australian law, under any other laws elsewhere in

Australia or were they unincorporated bodies? (3) What was the outcome in each of these cases where a not for profit community group was sued or threatened

with being sued? (4) In any of these cases, were individual members of the community group or any or all of its office bearers

subject to the legal action and, if yes, was the legal action successful? (5) Is the Minister aware of any cases where legal action was threatened against a not for profit group but the

matter was resolved prior to final judicial determination and, if yes, what were the details of these resolutions? (6) In any of the cases known to the Minister, did the affected community groups hold public liability or similar

insurance and, if yes, did this insurance provide appropriate cover in those cases where the community group was found to be legally responsible or agreed to accept responsibility?


Mr J.C. KOBELKE replied:

(1) I am not aware of any such cases. The Associations Section of the Department of Consumer and Employment Protection advises me that they also are unaware of not for profit groups being sued or threatened with legal action for negligence. Officers are however aware of two groups that have been sued following disputes about unpaid rent and other debts.

(2) Both of these groups are incorporated in Western Australia under the Associations Incorporation Act 1987.

(3) In one case settlement was agreed at the first trial date. A trial date for the other is yet to be set.

(4) In the matter that has been settled, action was taken only against the association. In the case that has not yet gone to trial, the President of the association is named along with the association as a respondent to legal proceedings.

(5) Yes – as above. The respondent agreed to pay the complainant $8999.37 plus costs and interest.

(6) Not known.

SWAN AND CANNING RIVERS, ALGAE

2763. Mrs C.L. Edwardes to the Minister for the Environment

I refer the Minister to the ongoing algae problems in the Swan and Canning river system and ask for each of the financial years 1999/2000, 2000/2001, 2001/2002, 2002/2003 and the current financial year to date, what are the amounts of Phoslock or other bentonite clay used in each river system to reduce the available phosphorous that feed algae blooms?

Dr J.M. EDWARDS replied:

In the Swan-Canning river system, Phoslock™ has only been applied to the Canning River upstream of the Kent Street Weir and, in the current financial year, to the Mills Street and Liege Street drains. No other bentonite clay has been applied to reduce phosphorus concentrations.

The amounts of Phoslock™ applied to the Swan-Canning river system are as follows:

Year Location Total dry weight of clay (t) 1999/2000 Canning River 45 2000/2001 Canning River 20 2001/2002 Canning River 45 2002/2003 Canning River 26 2003/2004 Mills St/Liege St drains 26 (still in progress)

SWAN AND CANNING RIVERS, ALGAE

2764. Mrs C.L. Edwardes to the Minister for the Environment

I refer the Minister to the ongoing algae problems in the Swan and Canning river system and ask -

(a) have the ‘oxygenation’ trials in the Swan and Canning River system been completed;

(b) has a review of the trials and their results been conducted;

(c) have these results been tabled or published; and

(d) is ‘oxygenation’ of the Swan and Canning Rivers to continue?

Dr J.M. EDWARDS replied:

(a) Oxygenation trials in the Swan and Canning River system have been completed. In the Canning River oxygenation trials, a prototype oxygenation plant successfully oxygenated one kilometre of the Canning River upstream of the Kent St Weir from November 1998 to April 1999. A prototype mobile oxygenation plant was used to oxygenate sections of the Swan Estuary in the summers of 1999/2000 and 2000/2001.

(b) A review of both trials and their results has been conducted. Both trials were comprehensively monitored. After the field component of the project was completed, the data acquired was reviewed and then reported on.

(c) The results of both trials have been published. A number of publications detailing the results of these trials are available:

Greenop B., Lovatt K. and Robb M. 2001. The use of Artificial Oxygenation to Reduce Nutrient Availability in the Canning River, Western Australia. Water Science and Technology Vol 43 No 9 pp133-144. IWA Publishing 2001.


Greenop, B. and Robb, M. 2003. The Swan Estuary Oxygenation Project: A prototype mobile oxygenation barge for improving water quality, a summary report. March 2003. Swan River Trust, Western Australia.

Greenop, B. and Robb, M. 2003. The Swan estuary oxygenation project: A prototype mobile oxygenation barge for improving water quality. March 2003. Swan River Trust, Western Australia.

Swan River Trust. 2000. The Canning River Oxygenation Project: Summary report of the 1998/1999 operation. Swan River Trust, Western Australia.

Swan River Trust. 1999. The Canning River Oxygenation Project: Summary report of the 1997/1998 operation. Swan River Trust, Western Australia.

Swan River Trust. 2000. Report on the 1999/2000 Swan barge oxygenation trial. Riverscience #15. Swan River Trust.

Swan River Trust. 2000. Oxygenating the Swan and Canning Rivers. Riverscience #13. Swan River Trust.

Swan River Trust. 2000. 1998/1999 Canning River Oxygenation Trial. Riverscience #14. Swan River Trust.

(d) Oxygenation has continued on the Canning River but not on the Swan River. Following the successful oxygenation trial on the Canning River in 1998/1999, oxygenation has continued on an annual basis. Since the extension of the length of river oxygenated to 2.3km in December 1999, oxygenation has generally occurred from November to the end of April. Oxygenation of the Swan River was not continued, due to the scale of operation required to effectively increase oxygen concentrations over the middle and upper estuary.

Publications reporting on the operation of the plants on the Canning River over this time are also available:

Greenop, B. and Robb, M. 2002. The Canning River Oxygenation Project: Improving water quality in the Kent Street Weir pool with artificial oxygenation, 1999 - 2002. Swan River Trust, Western Australia.

Greenop, B. and Robb, M. 2003. The Canning River Oxygenation Project: Improving water quality in the Kent Street Weir pool with artificial oxygenation, 1999 – 2002, a summary report. June 2003. Swan River Trust, Western Australia.

Swan River Trust. 2000. Report on the 1999/2000 Canning River Oxygenation Project. Riverscience #18. Swan River Trust.

HONEYBROOK LODGE, CLOSURE

2775. Mr M.G. House to the Minister for Health

(1) Is the Minister aware that Honeybrook Lodge, a designated psychiatric lodge in Midland, risks closing down because of ever increasing and time consuming Health Department regulatory requirements, without any increase in payments to fund these requirements?

(2) As an example, will the Minister explain why it is necessary for the managers of Honeybrook Lodge to provide specific details of each ingredient used in every meal served there?

(3) Does the Minister agree that this is not a health requirement for other facilities, such as cafes and restaurants, where meals are prepared on a commercial basis?

(4) What is the current State Government funding payment to facilities such as Honeybrook Lodge?

(5) Will the Minister advise if this payment is increased in line with the Consumer Price Index?

(6) If not, when was the payment last increased?

(7) Is the Minister aware that if Honeybrook Lodge had to close, there are no alternative accommodation options available to some of its residents?

(8) Does the Minister agree that people in this situation could end up in a hospital bed and place further pressure on hospitals?

(9) What will the Minister do to assist the managers of Honeybrook Lodge?

(10) Will the Minister visit Honeybrook Lodge and talk to the people managing this residential facility about the problems they are facing?


Mr J.A. McGINTY replied:

(1) Honeybrook Lodge is a licensed private psychiatric hostel which must meet the requirements of the Hospitals and Health Services Act 1927 (the Act) and the Hospitals (Licensing and Conduct of Private Psychiatric Hostels) Regulations 1997 (Regulations). Following an extensive consultation process, Standards consistent with the Regulations were finalised in 2003. All licensed hostels are required to meet these Standards.

(2) The licence holders of private psychiatric hostels are required to meet Regulation 10(a) of the Regulations, which states “food is supplied in such quantities that the dietary allowances recommended by the National Health and Medical Research Council are provided by that food”. Standard 9 deals with Food Safety. The relevant minimum criterion states “recipes are available for all meal components and include all ingredients and portion sizes”.

(3) The requirements of the Act, Regulations and Standards aim to ensure that the safety and wellbeing of residents of private psychiatric hostels is maintained.

(4) Licensed Private Psychiatric Hostels are paid a subsidy per eligible resident that varies according to the classification of a Licensed Private Psychiatric Hostel and the assessed level of care required of each resident. The current subsidy levels per resident for Honeybrook Lodge are: Level 1 is $5.52 per day; Level 2 is $7.30 per day; Level 3 is $9.20 per day; and Level 4 is $11.09 per day.

(5) An increase in subsidy level for indexation is considered each year in the State Budget.

(6) A twenty percent increase in subsidy levels was provided from 1 October 2001.

(7) If a Hostel proprietor advises that he/she wishes to close a facility, the “Unplanned Closure of Licensed Psychiatric Hostels Strategy” is initiated. Unoccupied beds in other facilities are used to relocate residents.

(8) Hospitalisation of hostel residents would only be required if the resident was in need of hospital care.

(9) Advice, support and training are offered to hostel proprietors and staff to assist them in meeting their legislative requirements.

(10) Officers from the Licensing Standards and Review Unit make regular visits to hostels including Honeybrook Lodge to discuss problems they may be facing.

__________

a36 s2 20040505 all

Documents