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Parliamentary Debates
(HANSARD)
THIRTY-NINTH PARLIAMENT
FIRST SESSION
2015
LEGISLATIVE ASSEMBLY
Wednesday, 11 March 2015
Legislative Assembly
Wednesday, 11 March 2015
THE SPEAKER (Mr M.W. Sutherland) took the chair at 12 noon, and read prayers.
MOTORCYCLING WESTERN AUSTRALIA — HOME FOR MOTORCYCLING
Petition
MR M.J. COWPER (Murray–Wellington) [12.01 pm]: I have presented similar petitions in this place.
This one contains an additional 20 signatures and it conforms with the standing orders of this house. It states —
To the Honourable Speaker and Members of the Legislative Assembly of the Parliament of
Western Australia in Parliament assembled:
We the undersigned say that: More than 68 thousand motorcycle enthusiasts in Western Australia
are finding it increasingly difficult to find suitable land for the safe and responsible riding of
Motorcycles. As a result more than 20 people each year are been tragically killed or injured in off
road crashes. The State Governments own report in 2008 has identified many of these issues and
yet little has been done to address this growing problem. Motorcycling in Western Australia
contributes in excess of $150 million dollars per year into the economy and yet receives little or no
investment back into the sport. Both the Queensland and Victorian State government have
invested in similar projects with great success.
Now we ask that the Legislative Assembly to support our campaign for the Government to invest in
Motorcycling Western Australia’s (MWA) unique plan to purchase land and establish a multifunction ride facility near Pinjarra as a home for motorcycling in Western Australia.
Your petitioners therefore humbly pray that you will give this matter your earnest consideration and
your petitioners, as is duty bound, will ever pray.
[See petition 220.]
PAPER TABLED
A paper was tabled and ordered to lie upon the table of the house.
CONSERVATION AND LAND MANAGEMENT AMENDMENT BILL 2015
Notice of Motion to Introduce
Notice of motion given by Mr A.P. Jacob (Minister for Environment).
STATE FOREST 16
Partial Revocation of Dedication — Notice of Motion
Mr A.P. Jacob (Minister for Environment) gave notice that at the next sitting of the house he would move —
That the proposal for the partial revocation of state forest 16, laid on the table of the
Legislative Assembly on Wednesday, 11 March 2015, by command of His Excellency the
Administrator, be carried out.
GUILDFORD HOTEL — RESTORATION
PROSTITUTION REGULATION
Removal of Notices — Statement by Speaker
THE SPEAKER (Mr M.W. Sutherland): I advise members that private members’ business notices of
motion 2 and 3, notices of which were given on 19 March 2014 and renewed for a further 30 sitting days on
10 September 2014, will be removed and will not appear on the next notice paper.
MAGNETITE FINANCIAL ASSISTANCE PROGRAM
Statement by Minister for Mines and Petroleum
MR W.R. MARMION (Nedlands — Minister for Mines and Petroleum) [12.04 pm]: Earlier this month,
I was proud to visit the Karara mine site to mark the first instalment of the magnetite financial assistance
program. This program was announced by the Liberal–National government in April 2013 and is designed to
support mining diversification and employment. The three-year program offers assistance to magnetite mines
during their critical start-up phase, with a royalty rebate of up to 50 per cent over a period of 12 months. The
Karara project, located in the midwest region, 200 kilometres east of Geraldton, is the first to receive the royalty
rebate. The $2.57 billion Karara mine opened in 2013 and is Australia’s second largest magnetite project,
[ASSEMBLY — Wednesday, 11 March 2015]
1011
employing almost 500 people. Karara has invested more than $1 billion in new common-use infrastructure in the
midwest, including an 85-kilometre rail line, expanded port facilities, a 330-kilovolt powerline and
a 140-kilometre water pipeline.
During the visit, I heard directly from Karara’s senior management about the current difficulties facing the
magnetite industry. As with the rest of the iron ore industry, magnetite producers are suffering as a result of low
prices. Magnetite is also generally more expensive to produce than haematite as it requires magnetic separation and
concentration. Magnetite development has long-term potential to promote further investment across the state. The
ore is not only preferred by many Chinese mills, but also it is a widespread Western Australian resource. Karara has
qualified by reaching commercial production, with the first applicable period for the rebate being the December
quarter. All magnetite producers within Western Australia are able to apply for the financial assistance program.
Guidelines for applicants are available on the Department of Mines and Petroleum’s website.
SWAN AND CANNING RIVERS — OXYGEN LEVELS
Statement by Minister for Environment
MR A.P. JACOB (Ocean Reef — Minister for Environment) [12.06 pm]: I would like to take this
opportunity to update the house on the Liberal–National government’s ongoing commitment to improve water
quality in the Canning River. As members are aware, the government began its oxygenation program on the
Canning River in 1998 in response to severe algal blooms. Because of the program’s success, the
Liberal–National government invested $2.4 million to build a third oxygenation plant on the Canning River and
to upgrade the two existing plants in the area to help secure the river’s long-term future. Construction began last
year and I am pleased to inform the house today that the third oxygenation plant is now complete and
operational. The new facility will extend oxygen relief above the Kent Street Weir by approximately
4.5 kilometres—an extra 2.2 kilometres during times of oxygen stress. The third plant is an exciting extension to
the government’s oxygenation program, which also includes two plants on the Swan River. These plants provide
oxygen relief to a 10-kilometre stretch from Guildford Road Bridge to Middle Swan Bridge. Without this
oxygenation program, the upper reaches of the Swan and Canning Rivers would suffer low oxygen conditions
for extended periods, making it a hostile environment for aquatic life. In times of need, our oxygenation program
is providing improved habitat conditions for fish and other aquatic fauna. The oxygenation program is part of
a catchment-to-coast approach to protect and improve the health of the Swan and Canning Rivers. The state
government has a strong record of investing in this sphere. Along with the oxygenation program, we are
delivering targeted strategic and on-ground actions within the catchments to reduce nutrients flowing into the
river system and the occurrence of algal blooms. Some of these initiatives include limiting the phosphorus
content in domestic-use fertilisers, working with farmers to improve fertiliser efficiency, implementing
behavioural change programs, funding subregional groups such as the South East Regional Centre for
Urban Landcare, constructing nutrient stripping wetlands, and re-engineering drains to improve water entering
the system. I can assure the house that the Liberal–National government is committed to improving the water
quality and amenity of the Swan Canning Riverpark.
KEN KELSALL — TRIBUTE
Statement by Minister for Water
MS M.J. DAVIES (Central Wheatbelt — Minister for Water) [12.08 pm]: I rise today to honour the passing
of an outstanding Western Australian engineer who was a true pioneer in the development of the water industry
in this state. Ken Kelsall was involved in some of our most significant water projects, including the construction
of Stirling Dam and the Cape Peron pipeline, the raising of Mundaring Weir, and the Ord River irrigation
scheme. Ken joined the former Public Works Department as a cadet engineer in 1939 and retired in 1985 as
chief engineer of the Metropolitan Water Authority. He continued his association as chairman of the
Western Australian Water Resources Council and was a member of the Water Authority Board until 1990.
During World War II, Ken helped in the war effort by building seaboard storage of petroleum products and
coastal defences, including gun emplacements and antisubmarine booms, at the entrance to Fremantle and
Albany harbours. In a career spanning 51 years, Ken was involved in the building of 26 dams in
Western Australia, including drilling the foundations of the Ord Dam site. He was the engineer in charge of its
construction. In 1986, Ken was awarded a Member of the Order of Australia for his service to the engineering
profession, particularly in the development of WA’s water resources. Ken is remembered as much for his
distinguished career as his personal qualities. He was an inspiring leader who had a real interest and compassion
for others. He mentored and inspired many young engineers under his charge and is remembered fondly for this.
Today, the Water Corporation delivers more than 371 billion litres of high-quality drinking water a year to more
than two million Western Australians. Without the dedication, skill and foresight of engineers such as
Ken Kelsall, I doubt we would have the highly integrated and sustainable water supply that we enjoy today. Our
state’s growth and our quality of life has thrived because of it. Ken died on 28 February, aged 93. I wish to pass
on my condolences to the Kelsall family on the passing of a truly great Western Australian.
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[ASSEMBLY — Wednesday, 11 March 2015]
BUSINESS OF THE HOUSE
Standing Orders Suspension — Motion
MR J.H.D. DAY (Kalamunda — Leader of the House) [12.10 pm]: I move —
That so much of standing orders be suspended as is necessary to enable private members’ business to
have priority on Wednesday, 11 March 2015, between 4.00 and 8.00 pm.
Agreement to this motion will enable the house to sit later than the usual time of 7.00 pm tonight while still
maintaining three hours for private members’ time for issues to be raised by the opposition. Essentially, in short,
it is necessary for us to make greater progress in dealing with legislation than we have so far, and sitting later
tonight will assist in doing so.
MRS M.H. ROBERTS (Midland) [12.11 pm]: Although the opposition is not going to oppose this motion at
this stage, there are a few points I would like to make. One is that this runs entirely contrary to having more
family-friendly sitting hours in this house. This is something that has required review for some time. When
I speak to women and men in my electorate and they learn that Parliament sits in the evening, they think that that
is not an appropriate time for people to be working. I have also looked at the sitting hours of other Parliaments
around Australia and elsewhere, and most of them have modified sitting hours. I was most recently looking at
Victoria, and it certainly has more family-friendly hours than this house. Some of the people in this place may
not know the history of the sitting hours of this place, but in the very early days, when members of Parliament
had other jobs, they used to attend here late in the afternoon and stay until the evening; it was certainly more of
a gentleman’s club in those days. I make the point on behalf of not only women, but also men, that most modern
families share their parenting responsibilities, and I do not think that the current sitting hours of the house are
good enough.
I was part of an earlier incarnation of the Procedure and Privileges Committee when Hon George Strickland was
Speaker of this house, and that is when we moved to have the 7.00 pm finishing time on Wednesday. We started
our sitting at 2.00 pm on Wednesdays and 11.00 am on Thursdays, and when I first joined this house there was
1.5-hour dinner break on Tuesdays and Wednesdays. My suggestion, simply, was to shorten the dinner break
because we need only an hour, not an hour and a half in the evening—the business used to grind to a stop for an
hour and a half—and to sit at 12 noon on Wednesdays, grabbing a couple of extra hours there, especially on
a Wednesday because we did not sit after the 1.5- hour break until 7.30 pm, and then maybe go through to until
10.30 pm-ish. There was only about three hours to make up there. So, we gave up those other times and decided,
rather than sit from 11.00 am to 5.00 pm on Thursdays, to sit from 9.00 am to 5.00 pm, as we do now. That was
a long time ago—probably about 14 years or something of that order—but there has been no progress since then.
I know that perhaps you, Mr Speaker, might be willing to consider this, but ultimately it comes down to numbers
in this house, and unless the government agrees to some different arrangements with sitting hours or the way this
house runs, nothing happens. The ball is very firmly in the government’s court because it has the numbers in this
place. I listened to arguments at that time, and it is interesting there has already been an interjection from the
National Party on this and it is trying to create this city-country divide. But when we started to sit only until
7.00 pm on Wednesday nights, a couple of the country members said, “What are we going to do on a Wednesday
night? We’re in town anyway; Parliament might as well sit.” So the rest of us should not go home to our families
in the evening because country members have come all the way to town? There are plenty of different options if
members want to sort things out city versus country, and perhaps the Leader of the National Party would be
better off making a constructive —
Mr M.P. Murray interjected.
The SPEAKER: Member for Collie-Preston, if you have some constructive suggestions —
Mr M.P. Murray: I certainly have.
The SPEAKER: — please speak later. Thank you.
Mr M.P. Murray: I will keep them for the caucus room.
The SPEAKER: Thank you.
Mrs M.H. ROBERTS: I do not think the Queensland Parliament is much of a model for anything, but my
recollection is that in a sitting week it sits either four or five days of the week. It has far fewer sitting weeks than
us, but it sits more days on a sitting week; I think it is four days, but I am happy to be corrected if it is five. That
works, I am told, and part of the rationale for doing it—I have asked the question—is that there are a lot of
regional members who need to come from the country, and they do not mind coming and sitting the extra day in
Brisbane because they are coming for far fewer weeks. Rather than attending for 20 or 22 weeks, they are only
attending for 14 weeks or something because in the weeks they come they sit the extra day. That is the kind of
constructive dialogue that could happen here.
[ASSEMBLY — Wednesday, 11 March 2015]
1013
The way this government runs the place is almost worse than it used to be in that it has these ad hoc late-night
sittings. Last Friday I got a letter from the Leader of the House that advised that the government may sit later
than usual on Wednesday night, so there was not even a week’s notice for people to change their electorate or
family commitments. People may well have made commitments for family occasions or other things based on
the fact that Parliament rises at 7.00 pm on Wednesday nights. There was virtually no notice; Friday was the first
time the opposition was advised that we may sit later on Wednesday night. I do not think that is good enough.
Some people here, or some people in the future, may be single parents or have other issues, and they might need
to make child-minding arrangements if they are sitting in this place in the evening. The way this government
manages the Parliament —
Ms M.M. Quirk: The Minister for Women’s Interests is laughing.
Mrs M.H. ROBERTS: Yes, but it does not surprise me that the Minister for Women’s Interests is laughing,
because she does not take that role very seriously.
Mrs L.M. Harvey: I beg your pardon? I was not laughing; I was making a comment. You are talking about
single parenting; it is relevant to me.
The SPEAKER: Member for Midland!
Mrs M.H. ROBERTS: My eyes do not deceive me.
Several members interjected.
The SPEAKER: Through the Chair. Let us move on. Those three members over there, listen to the member for
Midland.
Mrs M.H. ROBERTS: My eyes do not deceive me, and I know what I saw and perhaps we could get the
camera vision of that as well.
Mr J.H.D. Day: She was not laughing at you.
Mrs M.H. ROBERTS: We checked last night. The behaviour in this place by members of the government is
nothing short of shocking. Their disrespect for this institution absolutely appals me. Mr Speaker, we saw that last
night when you asked the member for Wanneroo to take his conversation with the member for Belmont
outdoors. He did not like that—the member for Butler drew it to your attention at the time. You asked him to go
out, and as he went out—we could see you were not looking—he looked straight at you and he did this throatslicing action at you. That is the kind of behaviour we get from backbenchers of the Liberal Party.
Several members interjected.
Mrs M.H. ROBERTS: They have the audacity to interject on me now!
The SPEAKER: Through the Chair, member!
Mrs M.H. ROBERTS: I am raising a very important issue. Some people in this place might like to belittle the
issue. I say shame on them if they want to belittle this issue, because that is wrong. It does not affect me like it
used to. My youngest child is now 16 years old, and two of them are in their 20s. I do not have to get home to
young children, but I do think it is an important consideration and not one to be scoffed at by the government. It
is about time some of the people on the back bench stood up to their Premier and the people who make the calls
on these arrangements, and said that they think —
Mr J. Norberger interjected.
The SPEAKER: Member for Joondalup, I call you to order for the first time.
Mrs M.H. ROBERTS: Perhaps the member for Joondalup does not want to go home to his family at night; I do
not know what his issue is or why he would interject on me. The fact of the matter is that the members for
Joondalup and Forrestfield chose to talk on the Criminal Law Amendment (Home Burglary and Other Offences)
Bill 2014, which the government is now saying it is in a hurry to get through—it has been saying it is in a hurry
for about two years and has done nothing to expedite it! They took 27 minutes to speak on it. Of course every
member has the right to speak on every bill. I am not arguing with that at all, but I am saying that if the
government is in a hurry—I have been in this place a long time—it can advise its backbenchers, “We’d like to
get this bill through quickly; we’d like you to restrict your speeches to a short period”, because spending that
amount of time does not enhance things. Members opposite are about playing politics on this Criminal Law
Amendment (Home Burglary and Other Offences) Bill.
Several members interjected.
The SPEAKER: Members! Member for Carine! Member for Swan Hills, I call you to order for the first time.
Through the Chair and let us get moving, member.
1014
[ASSEMBLY — Wednesday, 11 March 2015]
Mrs M.H. ROBERTS: I would like to get back to the issue under discussion. We are talking about the
government’s management of this house and I again point out —
Mr A. Krsticevic interjected.
Mrs M.H. ROBERTS: The member for Carine is interjecting and various other members have been
interjecting. The fact is that, without notice, the government is changing the sitting hours of this house. The
sitting hours on a Wednesday are 12.00 noon to 7.00 pm. That is established. Last Friday, the opposition was
advised that the house might sit late on Wednesday. Nothing pressing on this agenda needs to be dealt with with
any kind of urgency. The fact is that the bill under discussion has sat on the notice paper for a full year—a full
year. The minister read it in this time last year and not once did the minister bring it on. Do not tell me now that
it has suddenly become urgent. The government said it was urgent in 2013; it took a year to introduce it and then
let it lay on the table.
Mr N.W. Morton interjected.
The SPEAKER: Member for Forrestfield, I call you to order for the first time. Member for Midland, let us try to
make some progress—through the Chair.
Mrs M.H. ROBERTS: Thank you, Mr Speaker.
Last week we tried again to bring this bill on. We brought it on for discussion. What did the Liberal Party do?
It adjourned it and said it had another priority, so do not tell me that this suddenly needs to be done this week.
The government has ignored it week in, week out.
Mr J.H.D. Day interjected.
The SPEAKER: Leader of the House!
Mrs M.H. ROBERTS: The Leader of the House brought it on for about 20 minutes last year while he was
acting police minister. The police minister herself did not bring it on once; it was ready for debate from April last
year.
Mr J.H.D. Day interjected.
Mrs L.M. Harvey interjected.
Mrs M.H. ROBERTS: Are the Leader of the House and the minister interjecting? Perhaps the minister would
like to get up and make a speech. There is no reason that this could not have been brought on last year. The
acting Minister for Police brought it on for about 20 minutes. He has had a couple of months to have this bill
dealt with.
Mr J.H.D. Day: There were four other bills.
Mrs M.H. ROBERTS: The Leader of the House says there were some other bills. If there was any other
urgency, he would have set the proper time. This is a complete muddle in this place when without notice the
Leader of the House says we will sit extra hours. I do not mind sitting here for whatever hours, but how about
some notice and some respect for people who are part of this chamber.
The real issue is the mismanagement of the upper house. The government has set the weeks of sitting for the
upper house for the year with practically nothing on the agenda. I think it started sitting at two o’clock yesterday
and by about twenty past four it was time to go home. There are two bills on the Legislative Council’s notice
paper. Hello! It was not our fault; it is the government’s fault. The fact is one of those bills has been introduced
in the Council, and the government could introduce other bills there. Anyone looking at the parliamentary
program—I have been in government and assisted in that—would look at what bills are in the Assembly and
what bills are in the Council, the demand in here and how many sitting weeks we need to sit. The fact is that the
government set too many sitting weeks in the early part of the year for the Legislative Council when it had
nothing do.
Mr J.H.D. Day interjected.
Mrs M.H. ROBERTS: There is a cost associated with that. When either house sits there is a cost to the public.
There is no cost efficiency when a house sits for two hours one day, three hours the next and two hours the week
after. This is absolutely shambolic. The government makes it up as it goes along. It has been an open joke around
this place that there is no business for the Legislative Council.
Dr K.D. Hames interjected.
Mrs M.H. ROBERTS: Do not say it is because we are holding things up. The Criminal Law Amendment
(Home Burglary and Other Offences) Bill is one that we would happily have dealt with last year but the
government dragged it out. We have been in here week after week while the government has filibustered on
various bills, and there have not been enough bills on the Assembly agenda. It is absolutely crazy. Everyone and
[ASSEMBLY — Wednesday, 11 March 2015]
1015
their family have to be inconvenienced because of the government’s mismanagement. It costs the public money
and inconveniences people. I know members opposite do not like me talking about it, but we are going in totally
the wrong direction if the government wants to talk about reform of the sitting hours of this Parliament. I would
like to encourage more young people, more people with families and more women to be involved. That is very
hard to do in light of not only our sitting hours, but also the flippant attitude of the government, which says,
“Oh, well, next week we’ll sit on Wednesday night as well and we’ll give you three or four days’ notice.”
Mr J.H.D. Day: The ball’s in your court.
Mrs M.H. ROBERTS: It is interesting that the Leader of the House is interjecting on me, saying, “The ball’s in
your court”, as though we could just roll over on all the legislation and not subject it to scrutiny. We will not let
members off that easily. The contradictions between government ministers on this kind of topic are
extraordinary. On the one hand, last evening the Minister for Police said everyone was entitled to speak on every
bill—all backbenchers, opposition and government—and now the Leader of the House is suggesting that it is our
fault for taking our opportunities for speaking on bills.
Mr J.H.D. Day: I said to a large extent the ball’s in your court—not entirely, but to a large extent.
Mrs M.H. ROBERTS: If the Leader of the House wants to hand control of the house over to us, he should let us
know and we will run it for him. We gave that a go last week!
The SPEAKER: Member for Midland!
Mrs M.H. ROBERTS: This motion is an extreme example of poor management. It is not family friendly; it is
not even courteous. It has been brought about because of the government’s mismanagement of this place.
I signalled to the Leader of the House that I think this is unacceptable. If he wants to reform the sitting hours or
if he thinks that in future weeks we might like to sit more weeks or different days, he should give us the courtesy
of earlier advice and some proper discussion, because every time he does this I will have more to say on the
topic.
MR J.H.D. DAY (Kalamunda — Leader of the House) [12.27 pm] — in reply: I want to make a few
comments in reply on a motion I would not normally reply to. I entirely agree with the comments of the member
for Midland that it is desirable to have family-friendly sitting hours. I can assure all members that it is not my
first preference at all to sit longer here tonight or on other nights should that be necessary at other points during
this year. However, I need to point out that there is quite a significant list of government legislation; there are
currently 17 bills on the notice paper and we need to make progress with them. This issue can be dealt with in
a number of ways. We can sit longer hours, as we are going to do tonight. That is one option but it is not the only
option. We also have the option as a house of Parliament to make a decision to put in place time management
procedures so that the amount of time in bills is limited or limits are put on how long it takes bills to pass
through the house. It is my understanding that other Parliaments that have more family-friendly sitting hours
have time management procedures in place. If the opposition is happy to agree to that approach, I would be very
interested to hear that, and very appreciative, I must say, because, as I have flagged here before, that is one
option we need to consider. The third option is to limit the number of speakers on bills. On the Criminal Law
Amendment (Home Burglary and Other Offences) Bill, which has been the main subject of debate so far this
week and which the Minister for Police is dealing with, I entirely understand —
Dr A.D. Buti interjected.
The SPEAKER: Member for Armadale!
Mr J.H.D. DAY: The Minister for Police is dealing with the bill in this house.
I entirely accept and agree that that bill should be subject to quite substantial scrutiny. There are potentially contentious
issues in it and it is reasonable that it should be subject to quite a bit of debate. However, I hope the member for
Midland will encourage members to deal with the bill from this point onwards by not only applying adequate scrutiny,
but also dealing with it in a reasonably expeditious manner so that we can go through the consideration in detail stage
in an expeditious and appropriately time-managed manner. Limiting the number of speakers and the opposition
controlling how long it takes on bills is another way in which the issue can be dealt with.
Mr D.A. Templeman interjected.
The SPEAKER: Member for Mandurah, I call you to order for the first time.
Mr D.A. Templeman: I was asking whether I could interject.
The SPEAKER: Right. I will give you a credit later in the day.
Mr D.A. Templeman: Better management would have been this. It is an Attorney General’s bill. There are no
bills before the upper house to be debated. The bill should have been introduced into that place and you would
have had the upper house operating with a live bill to debate. It is bad management by the government. It’s as
simple as that.
1016
[ASSEMBLY — Wednesday, 11 March 2015]
Mr J.H.D. DAY: My understanding in response to that issue is that there are financial implications; therefore, it
could be initiated only in this house.
I also make the point, in response to the issues raised by the member for Midland about the Legislative Council
not sitting its normal number of hours, that the Council very efficiently and pleasingly, in most respects, dealt
with about nine bills in two or three days. The house of review is not doing a lot of reviewing and from the
government’s point of view that is a good thing. We are getting through legislation quite quickly there. I think
most people would expect the opposition to place more scrutiny than that on bills that took hours and hours to
deal with in the Assembly. I do not have a list, but one has been prepared and I will make sure I have it on me in
the future. When I was Acting Minister for Police, some bills took about eight hours to deal with in here. The
Road Traffic Amendment (Alcohol Interlocks and Other Matters) Bill 2014 took about eight hours. We would
think that is a reasonably substantial and interesting and significant issue, but it went through the
Legislative Council in about half an hour or so. It would appear there is either not a lot of work being done by
some members of the Legislative Council, or the opposition has a strategy to try to paint this picture that there is
a lack of good management in dealing with legislation. Maybe both are the case. Whatever the case, I certainly
reject any notion that there has been poor management of legislation so far. We are in only the third sitting week
of the year, but, as I said at the outset, we need to make greater progress than has been made at the moment.
There are various ways in which that could be done, and cooperation from the opposition is one way in which
that could be achieved.
I commend the motion to the house.
Question put and passed.
BUSINESS OF THE HOUSE — DINNER SUSPENSION
Statement by Speaker
THE SPEAKER (Mr M.W. Sutherland): I wish to announce that tonight’s dinner break will be from 6.00 to
7.00 pm.
VALUATION OF LAND AMENDMENT BILL 2015
Introduction and First Reading
Bill introduced, on motion by Mr D.T. Redman (Minister for Lands), and read a first time.
Explanatory memorandum presented by the minister.
Second Reading
MR D.T. REDMAN (Warren–Blackwood — Minister for Lands) [12.33 pm]: I move —
That the bill be now read a second time.
I am pleased to introduce this bill which will ensure that equity and fairness will be restored to unimproved
valuations made for rating purposes by the Valuer-General and maintain the confidence of property owners and
those holding rateable interests in land. The need for this bill recently became evident when the impact on
unimproved values of higher annual rentals and fees for exploration licences issued under the Mining Act 1978
and petroleum and geothermal permits and drilling reservations issued under the Petroleum and Geothermal
Energy Resources Act 1967 became clear. The Valuation of Land Act 1978 requires that when determining the
unimproved value of mining, petroleum and geothermal tenements, the Valuer-General must apply a statutory
formula involving a multiplier of the annual rental or annual fee payable for the tenements under the relevant
acts. This has been the case since 1995 and, for most of the period since then, has provided fair and consistent
unimproved values that have maintained relativities between the different classes of tenement.
For exploration licences held under the Mining Act 1978, the unimproved value is required to be two and a half
times the annual rent payable for the licence. In 2006, the Department of Mines and Petroleum introduced a new
schedule of tiered rents for exploration licences that meant that by the eighth year of the term of the licence, the
annual rents had increased more than threefold. It was an unintended consequence that these increased rents
should flow through into the unimproved values and ultimately into council rates in 2013–14. Throughout the
latter part of 2014, Landgate received complaints about the unfairness of the unimproved values and the
increasing distortion between those of exploration licences and mining leases.
This was compounded by the Department of Mines and Petroleum’s introduction in 2013 of increased fees for
petroleum and geothermal exploration permits and drilling reservations that resulted in annual fees increasing
eightfold between 2012 and 2014. The increase reflected cost-recovery principles and was also to act as
a disincentive to hold ground for exploration for excessive periods. The Valuation of Land Act 1978 requires
that the unimproved values of these permits and drilling reservations are based on five times the annual fee
payable under the act. Again, it was an unintended consequence that these increased rents should flow through
into the unimproved values for rating purposes.
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1017
The Valuation of Land Amendment Bill 2015 will implement changes to the statutory formulae applying to the
determination of unimproved value of exploration licences, permits and drilling reservations. The amendment
will mean that the relativities existing only a few years ago between the unimproved values of land held for the
riskier purpose of exploration and land held for minerals, petroleum and geothermal production will be
reinstated. Importantly, it also means that equity and fairness in the valuation roll are restored.
I commend the bill to the house.
Debate adjourned, on motion by Mr D.A. Templeman.
CRIMINAL LAW AMENDMENT (HOME BURGLARY AND OTHER OFFENCES) BILL 2014
Consideration in Detail
Clause 1 put and passed.
Clause 2: Commencement —
Mr J.R. QUIGLEY: Part 1 of the legislation deals with the serious home burglary matters and will come into
operation on the day the bill receives royal assent. The amendments that are likely to have the biggest impact on
prisoner numbers are those contained in the rest of the bill—that is, the counting of the number of offences for
repeat offences—and that will come into operation on a date fixed by proclamation. Why is there a difference
between the time that the amendments become effective for serious home burglaries and the time that the
amendments become effective for repeat home burglaries?
Mrs L.M. HARVEY: The reason we separated those two into paragraphs (a) and (b) is that the amendments in
part 2 of the bill will require some information technology changes to be made to the computer systems of both
WA Police and the Department of the Attorney General because there will be a new offence of aggravated home
burglary.
Mr J.R. QUIGLEY: This is very similar to a provision in the anti-association laws in that the so-called antibikie laws would come into operation on a date to be fixed. That took over 12 months. Can the minister tell us
how long it will take before this section, the rest of the act apart from part 1, will be proclaimed?
Mrs L.M. HARVEY: We anticipate that the IT changes will be implemented in the space of two to
three months maximum.
Mr J.R. QUIGLEY: Given that the minister introduced this legislation over 12 months ago and she has told the
community that with the passage of this legislation there will be a huge diminution in the number of home
burglaries, why have the police and the minister’s department not prepared properly for the implementation of
this legislation?
Mrs L.M. HARVEY: As the member for Butler is no doubt well aware, we cannot anticipate that the Parliament
might choose to make some changes to the legislation. In order to put the IT changes into place, we need
a commencement date for the legislation. Obviously, the commencement date cannot be arrived at until the
legislation has been through both houses of Parliament.
Mr J.R. QUIGLEY: Is the minister able to assure the people of Western Australia that this legislation will not
have the inordinate 12-month delay that the anti-association laws had; that is, we will pass this legislation with
a welter of publicity but it will not come into operation for a substantial period? Is the minister guaranteeing to
the public that this legislation will be operative within a month or so?
Mrs L.M. HARVEY: This legislation is nowhere near as complex as the Criminal Organisations Control Act.
We therefore anticipate that two to three months after the legislation has been through both houses of Parliament,
we will be able to proclaim the remainder of the act.
Ms M.M. QUIRK: On this point, I think we passed some legislation in 2010 that was urgent and that expanded
the categories of crimes that could be dealt with by way of infringement notices. I understand that legislation is
yet to be in force. Are these not the same sorts of issues that arise in the case that the member for Butler has
indicated?
Mrs L.M. HARVEY: The sequence legislation that the member for Girrawheen is referring to involved a far
more complex IT change. We are currently in the process of testing the IT component of that and ensuring that it
is workable, and we anticipate that it will be up and running in the near future. The amendment to the legislation
that we are discussing at the moment is nowhere near as complex a change required to the IT system. However,
as I said, it does need to pass both houses of Parliament and we need a commencement date before we can
proceed with initiating those IT changes.
Mr W.J. JOHNSTON: Has the minister calculated the number of additional prisoners that will be created by
the legislation when it comes into effect? If the minister has, has she calculated the number who will be
Indigenous people and is she satisfied that the legislation complies with all the recommendations of the royal
commission into black deaths in custody?
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[ASSEMBLY — Wednesday, 11 March 2015]
Mrs L.M. HARVEY: I thank the member for Cannington for raising this matter. It is very difficult to estimate
prisoner numbers as a result of legislation; I think the member will appreciate that. When we were discussing the
mandatory penalties for assaults against public officers and police officers, it was extremely difficult to
determine how much of a deterrent effect the legislation would have and what the impact would be on the
imprisonment of people as a result of that offence. Our best efforts at estimating, based on the current prisoner
cohort, is that 56 adult prison beds and 29 juvenile detention beds will be required in the first year, increasing to
approximately 206 adult prison beds and 60 juvenile detention beds in the fourth year. We anticipate the cost of
those beds to be in the vicinity of $13.92 million in the first year. However, we need to assess the impact of the
legislation but we do not have the ability to surmise the differentiation in numbers between Indigenous or other
ethnic cohorts within the prison population.
The SPEAKER: I just want to remind you, member for Cannington, this is about the commencement of the bill.
Mr W.J. JOHNSTON: Yes, that is right; that is exactly why I am asking this question.
I will start from the third part of my question, minister, which was whether the minister is satisfied that this
legislation complies with all the recommendations of the royal commission into black deaths in custody?
I follow that by asking: given that the minister cannot tell us how many Indigenous people will go to jail, does
she have any estimation of the number of additional black deaths in custody that will arise from this legislation;
and, if there are any black deaths in custody, will that be blood on the minister’s hands?
Mrs L.M. Harvey: These are entirely separate issues.
Mr W.J. Johnston: The royal commission is not an entirely separate issue.
The SPEAKER: Member for Cannington, I want you to stick to the commencement of this bill.
Mr W.J. Johnston: That’s exactly what I’m doing.
The SPEAKER: You are not, member for Cannington. I am not going to argue with you.
Mrs L.M. HARVEY: The proposed amendment on the notice paper is about consequences for actions and
ensuring that there are adequate consequences for a range of actions. With respect to Aboriginal or any other
deaths in custody, that is subject to the management of those people while they are in the custody of police and
in the custody of the Department of Corrective Services. The management of people who come into the custody
of our police officers and our corrective services officers is irrelevant to the offence that had them go to prison as
a consequence of their actions. They are therefore entirely separate issues. I believe that the way in which
WA Police and the Department of Corrective Services manage people in their custody indicates that they have
implemented the vast majority of the recommendations of the Royal Commission into Aboriginal Deaths in
Custody.
Mr W.J. JOHNSTON: Can I take it that by the time this legislation comes into effect, the minister will not have
examined any of the recommendations of the royal commission? On that date this amendment bill will
fundamentally change the nature of the laws in Western Australia. There are specific recommendations in the
royal commission’s report about introducing legislation such as this. Is the minister aware of that? Has she
examined the report to make sure that when the law changes, it will comply with the recommendations of the
royal commission? The royal commission was not just making recommendations about the handling of
Indigenous prisoners; it made recommendations about the style of laws that apply in Australia. That is what
I have asked. This is the third occasion I have asked the exact same question. To this moment the minister has
not told us whether the recommendations of the royal commission into black deaths in custody, which affect this
state, have been considered and complied with in the change to the laws of this state so that we will know that
we will not be leading black people to death in our prisons. That is the fundamental thing that occurred in the
royal commission. Go and read it, minister. Has the minister read it yet? The minister is happy to interject all the
time, so here, why not interject now? Has the minister read the royal commission’s recommendations?
Mrs L.M. Harvey: Member, you are inviting an interjection, so I will respond. The Royal Commission into
Aboriginal Deaths in Custody was held in 1982.
Mr W.J. JOHNSTON: That is right. Has the minister read the report?
The SPEAKER: I want one person speaking at a time. If you are going to elicit an answer, I will give you the
call, otherwise Hansard cannot follow.
Mr W.J. JOHNSTON: Members of the Liberal Party are very happy to interject when we are speaking.
The SPEAKER: Come back to the bill.
Mr W.J. JOHNSTON: That is what happens every time Labor members get up to speak on this bill; we hear
interjection after interjection.
The SPEAKER: I want you to come back to the point. Let us move on.
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1019
Mr W.J. JOHNSTON: As far as we are aware, the minister has been asked this question twice. Clause 2(b)
states —
the rest of the Act—on a day fixed by proclamation, and different days may be fixed for different
provisions.
When will those days occur? We do not know whether the minister has given any regard to the recommendations
of the royal commission. How can that be? We asked a simple question: how many additional Indigenous
prisoners will go to jail because of this legislation? This matter was canvassed by the royal commission, and the
minister cannot tell us. We asked how many additional black deaths in custody she expects to arise from this
legislation. She cannot tell us. We asked whether she will take responsibility for additional black deaths in
custody and whether she will see that as blood on someone’s hands and she will not answer. The minister has
a responsibility to the people of Western Australia to at least tell us whether she has even read the
recommendations of the royal commission. That royal commission was groundbreaking in its impact on
Australia’s justice system. Surely after all these years it is time for governments to respect the hard work of that
royal commission. The minister cannot tell us whether she has read the recommendations. When we change
these laws on these various days, will she comply with those recommendations? It is a very simple question. If
the minister is incapable of answering, it condemns her in every way.
Mrs L.M. HARVEY: I think I have already answered that question. Matters relating to the recommendations of
the Royal Commission into Aboriginal Deaths in Custody and other royal commissions frequently come across
my desk and are cross-referenced on a regular basis. This legislation does not discriminate against people’s
ethnicity. If people break the law, they will be subject to the consequences of their actions under this legislation.
A range of options, including diversionary options, are available for the courts to consider, particularly for young
offenders under the Young Offenders Act. This legislation does not discriminate on the grounds of ethnicity.
I am aware of a range of recommendations of the royal commission into deaths in custody that the police have
put in place. An upgrade of all our custodial facilities in police stations is in train at present, which addresses
some of those recommendations of the royal commission to ensure that we are taking care of people
appropriately when they are in police custody and dealing with the consequences of their law-breaking actions.
Mr W.J. JOHNSTON: When did the minister read the recommendations of the royal commission?
The SPEAKER: That has nothing to do with the —
Mr W.J. Johnston: Yes, it does.
The SPEAKER: I am not going to argue with you, member for Cannington.
Mr P. PAPALIA: As I have telegraphed to the minister through my speech on the second reading and prior to
that during the general debate on the Premier’s Statement, I am very interested and deeply concerned about the
level of research and justification for this legislation. At this point I am going to seek some advice from the
minister as to what level of research was undertaken. I could do it when we consider different parts of the bill but
I think this is the appropriate time when we are debating the short title.
Mrs L.M. Harvey: We are not on the short title; we are on the commencement.
Mr P. PAPALIA: I think it is a good time to do it right now.
The SPEAKER: Do you have something to say about the commencement?
Mr P. PAPALIA: This is the first opportunity I have had to question the minister on the extent of the research
conducted by her department, herself and her office in developing this legislation and the justification for the
arguments they presented to the people of Western Australia prior to the last election relating to the outcomes of
this legislation. Following on from questions about the Royal Commission into Aboriginal Deaths in Custody,
I wish to ask a question about a more recent document. I am interested to know whether the minister or the
researchers in her department or her office consulted the study entitled “Mandatory Sentencing in Western
Australia & the Impact on Aboriginal Youth” by Professors Neil Morgan and Harry Blagg, which was published
in December 2001, prior to crafting this legislation.
The SPEAKER: This clause relates to the commencement of the act. You have gone into a very long
convoluted question that has nothing to do with the commencement of the act.
Mr J.R. QUIGLEY: I have a question but I am in your hands, Mr Speaker.
The SPEAKER: That is dangerous, member for Butler.
Mr J.R. QUIGLEY: Never, Mr Speaker. I have known you for 20 years. I am in your hands.
I would not have asked the question in this clause but it has been mentioned in this clause; that is, the increase in
prisoner numbers. I seek clarification. Would you like me to hold that until later?
The SPEAKER: I would like you to hold it.
1020
[ASSEMBLY — Wednesday, 11 March 2015]
Ms M.M. QUIRK: I wish to ask a question relating to an answer that the minister gave in response to this
clause. The minister made the statement that the law applies equally to everyone. Is she familiar with the concept
of substantive equality and the fact that laws created in this Parliament disproportionately impact some members
of the community? Equality of the law does not necessarily mean equality of outcomes. Is the minister familiar
with that? If she cannot give us the exact estimate of additional Indigenous prisoner numbers, can she at least
give us some indication of whether that was addressed in any of her briefings?
Mrs L.M. Harvey: No.
The SPEAKER: Member for Girrawheen, again, I do not see how that question ties in with the commencement
date of this bill.
Ms M.M. QUIRK: It ties in with the commencement date because we have already heard that there are
impediments to the date on which the act can commence. One of those impediments may well be the increase in
the prison population and the location where those people come from. That is relevant to the commencement.
Mrs L.M. HARVEY: As I said previously in response to a question about the estimates of prisoner beds, when
we dealt with Corrective Services on this matter, it was referring only to prisoner beds. They were separated into
juvenile facilities and adult facilities. The department does not break down those beds by ethnicity with respect
to legislation because people who offend in this manner are represented by all ethnic groups in
Western Australia. The commencement date of this legislation, as previously mentioned, will be delayed by only
two to three months from the date that it passes through this Parliament to ensure that those information
technology fixes are in place; that is, the WA Police computer system and the Department of the
Attorney General computer system. That will be the only delay to the commencement date. We will deal with all
of the other matters with respect to potential increases in prisoner population as and when they arise.
Ms M.M. QUIRK: Minister, I asked a question fundamental to this whole issue: what is your understanding of
the term “substantive equality”?
Mrs L.M. HARVEY: Madam Deputy Speaker —
Several members interjected.
The DEPUTY SPEAKER: Order, member for Girrawheen! Order!
Mrs L.M. HARVEY: Of course I am familiar with the concept of substantive equality, but that is not what we
are debating at the moment. If the member would like to bring on a motion during private member’s business,
I would be happy to have that debate with her.
Several members interjected.
Mr P. PAPALIA: I have a question on the commencement date. In light of the commitment made by the
Premier to the Aboriginal people of Western Australia that he would address the inordinately disproportionate
representation of Aboriginal people in prison, and the likelihood that when this legislation comes into force it
will have an impact on that already disproportionate representation, has any consideration been given to the
commencement date, given that the Premier’s office is conducting an investigation into what can be done to
reduce Aboriginal incarceration? Has any consideration been given to the potential impact of that study and any
recommendations that flow from it on this legislation when it comes into force?
The DEPUTY SPEAKER: Member for Warnbro, that question started on the commencement date, but it
strayed into matters that were not really relevant to this clause.
Mr P. PAPALIA: Thank you, Madam Deputy Speaker. In determining the commencement date, was any
consideration given to the fact that the Premier’s office is conducting a study in an attempt to reduce Aboriginal
overrepresentation in our prison system, noting that this legislation will increase that overrepresentation?
Mrs L.M. HARVEY: The assertion that this bill is going to increase disproportionately the representation of
Aboriginal people in the prison system is one that the member for Warnbro makes; it is not one that I necessarily
concur with. With respect to looking at the Aboriginal incarceration rate in Western Australia, I am involved in
that conversation, as is WA Police. We still believe that there should be consequences for actions when people
break the law, but obviously the focus of that issue needs to be around improving the social disadvantage of that
cohort of people in the community who find themselves in the cycle of crime. That focus includes crime
prevention initiatives, dealing with family violence and dealing with all the matters that lead to crime. That is
a debate for another time, but it is certainly a conversation that is active between my office, the Premier’s office,
the Minister for Corrective Services and the Attorney General. That is a different matter from the amendment on
the notice paper, but it is a very active conversation in trying to prevent people from engaging in crime and
therefore not entering the justice system. But if they engage in crime, they will be subject to this legislation if it
is relevant to them.
Mr P. Papalia: Before you sit down, by way of interjection —
[ASSEMBLY — Wednesday, 11 March 2015]
1021
The DEPUTY SPEAKER: Member for Warnbro, are you asking another question?
Mr P. Papalia: While the minister is on her feet, to save time. You said you disagree with my assertion that this
bill will increase disproportionate Aboriginal representation. What research or evidence do you have to sustain
that argument?
Mrs L.M. HARVEY: I have not seen any research or evidence to suggest that it will be so.
Mr P. Papalia: Have you looked at this report by Professor Morgan and Professor Blagg in 2001?
Mrs L.M. HARVEY: I have, and that is 13 years old. We have other initiatives of government that we are
implementing to try to reduce the offending rate of the Aboriginal population.
Mr P. Papalia: It deals specifically with this law.
Mrs L.M. HARVEY: It is not relevant to this clause.
Mr P. Papalia: It’s actually this law. You’re amending the law that it reports on.
The DEPUTY SPEAKER: Member for Warnbro! Thank you. Are there further questions on clause 2?
Clause put and passed.
Clause 3: Act amended —
Mr J.R. QUIGLEY: In the Government Gazette dated 21 March 2013, the minister was appointed Minister for
Police, amongst other things, and Hon Michael Mischin was appointed Attorney General.
Mrs L.M. Harvey: A very fine Attorney General, if I may say.
Mr J.R. QUIGLEY: By way of aside, as they say in the movies, “You would say that, wouldn’t you?”
The DEPUTY SPEAKER: Could we have your question please, member for Butler.
Mr J.R. QUIGLEY: I was interjected upon, Madam Deputy Speaker.
The Government Gazette reads —
It is also notified for public information that the Governor, in Executive Council, under Section 43 of
the Constitution Acts Amendment Act 1899, has designated and declared that, with effect on and from
21 March 2013, there shall be seventeen principal executive offices of the Government for the purposes
of the said Act, as follows—
It then further along lists the minister as, amongst her other onerous duties, as —
Hon Liza Mary Harvey MLA
Minister for Police; Road Safety; Small Business; Women’s Interests
It also lists —
Hon Michael Mischin MLC
Attorney General; Minister for Commerce
It goes on then to —
The DEPUTY SPEAKER: Member for Butler, I am having difficulty working out how this relates to the one
sentence in clause 3, so I would be grateful if you could assist me there, please.
Mr J.R. QUIGLEY: I give the Deputy Speaker the undertaking that it does.
The DEPUTY SPEAKER: Okay; thank you.
Mr J.R. QUIGLEY: It goes on then to proclaim by declaration the responsibilities for the administration of
various pieces of legislation. On page 3 it proclaims that the Criminal Code Act Compilation Act 1913 is to be
administered by the portfolio of the Attorney General, and the agency assisting the Department of the
Attorney General. How is it that this significant amendment of the Criminal Code has not been brought before
the Parliament by the minister that His Excellency proclaimed would be responsible for the administration of the
Criminal Code? Do you see my point, Madam Deputy Speaker?
The DEPUTY SPEAKER: I do, thank you, member for Butler.
Mrs L.M. HARVEY: As the member is aware, Hon Michael Mischin, the Attorney General, is responsible for
this legislation in the other place, the Legislative Council; I represent him in the Legislative Assembly. Any bill
that may have a financial implication for the government—which this one may have, as we have discussed, with
the impact on Department of Corrective Services—needs to be introduced in the Legislative Assembly. That has
been the protocol of the Parliament for a long time, and that is why this bill has been introduced into the
Legislative Assembly by me as a representative of the Attorney General.
1022
[ASSEMBLY — Wednesday, 11 March 2015]
Mr J.R. QUIGLEY: May I understand from the minister’s given answer that this is the Attorney General’s bill,
but that you are representing him in this chamber?
Mrs L.M. Harvey: It’s the government’s bill.
Mr J.R. QUIGLEY: Who is the minister responsible for this bill?
Mrs L.M. HARVEY: It is the Liberal–National government’s legislation. The Attorney General, who is
responsible for the Criminal Code, is ultimately responsible for this legislation. However, as was previously
explained, he cannot introduce a bill or an amendment into this house. As his representative in the
Legislative Assembly, I introduced the bill on his behalf and on behalf of the government.
Mr J.R. QUIGLEY: I find that curious given when approached for a comment on this bill, as reported on
26 February 2015, Mr Mischin said he would not comment on “another minister’s legislation”. The honourable
Attorney General is saying that he is not responsible for either the introduction or the preparation of this bill; it is
the Minister for Police’s bill, is it not?
Mrs L.M. HARVEY: The member would need to check with the Attorney General why he made those
comments.
Mr J.R. QUIGLEY: In the preparation of this bill, did the Attorney General prepare the drafting instructions for
this bill, or was it the police department and the people that the minister has at the ministerial table who prepared
the drafting instructions?
Mrs L.M. HARVEY: Obviously, the Attorney General’s office and my office worked together on this
legislation. The police are responsible for implementing the Criminal Code out in the community. The police
legislative services, the State Solicitor’s Office, Parliamentary Counsel’s Office and the Department of the
Attorney General were all working collaboratively on drafting this piece of legislation, as would be expected.
Mr J.R. QUIGLEY: I ask this, because we were favoured with a briefing on this bill, and at that briefing to
explain this bill were representatives from only the police department and none at all from the Department of the
Attorney General. At the briefing I asked the gentleman who is with the minister whether I could see the drafting
instructions so that I could understand how this came forward, and the only piece of paper that he was able to
offer was the Premier’s press release; that was the only drafting instruction. Is that correct?
Mrs L.M. HARVEY: I am sure the member for Butler is probably aware that drafting instructions are cabinetin-confidence and it is not appropriate to bring cabinet documents to a briefing.
Dr A.D. BUTI: I have a couple of points on that. The minister said that she is representing the Attorney General
in this house. I raised this last week; previously it was the Leader of the House. When was this house notified
that the minister was taking over carriage of the Attorney General’s portfolio? The Minister for Police has stated
that the reason this bill has been introduced in this house, rather than the other house, is that there are financial
implications. When the Attorney General introduces most of the bills that he introduces in the upper house, there
would be a financial implication. For instance, I think there is a bill before the other house to prohibit the
prevention of lawful activity, and that will also have financial implications. Is the minister not misleading this
house by saying the reason that it has been introduced here is that it will have financial implications, when that
would be the case for nearly all of the Attorney General’s bills?
Mrs L.M. HARVEY: I think I have been pretty clear about why I am introducing this legislation in this house
as a representative of the Attorney General. I am not certain when Parliament was notified of that change in duty.
However, that is my role at this point in time, and I would really like to proceed with the clauses.
Dr A.D. BUTI: Can the minister please provide, if not at this stage, at a later stage, when this house was notified
that the minister was taking over responsibility for representing the Attorney General’s portfolio in this house? It
is important for this house to know when that happened. This house has a right to know when a minister is
representing another minister from the other house. Can the minister please provide that information at some
stage? The minister stated that she is representing the Attorney General and that is why the minister has carriage
of this bill, but she has stated that it is because of financial implications. My question remains: why is this
different from nearly all of the Attorney General’s legislation, which also has financial implications? Please
answer that question.
Mrs L.M. HARVEY: In putting this legislation together, we can see and therefore make an estimate of the
effect this legislation will have on prisoner numbers. We can look at the number of prisoners currently in our
detention facilities for the offences that we are discussing and we can make a reasonable hypothecation of how
those prison terms may be increased and the number of additional days or months offenders may be imprisoned,
and determine the potential financial implications of this legislation to the state. The legislation the member for
Armadale is referring to that is currently being debated in the Legislative Council will create a new offence.
Until that new offence has been created and we have an understanding of the impact that that may have, the
financial ramifications of that at this point in time are unknown and are not anticipated to be significant.
[ASSEMBLY — Wednesday, 11 March 2015]
1023
We know there is a financial ramification from this legislation. We know it will have some impact on prisoner
bed numbers that the state will be required to provide, so it is appropriate that it be introduced into the
Legislative Assembly.
Dr A.D. BUTI: I find that a curious answer, minister. Whether it has financial implications is determined by the
quantum of the financial implications. If there is a financial implication, the quantum of that is irrelevant.
I repeat: nearly, but not all, the legislation the Attorney General introduces will have a financial implication.
The minister is not answering why the Minister for Police has introduced this particular bill to this house. I will
ask again: will the minister give an undertaking to provide this house with proof that this house has been notified
that the Minister for Police is taking over responsibility for the Attorney General’s portfolio in this house?
Mrs L.M. HARVEY: This is a key election commitment of the Liberal–National government. It requires the
cooperation of police and the Department of the Attorney General, and it crosses a range of portfolios. It is
appropriate that it has been brought into this chamber to be debated first. The government makes those decisions,
but in addition we know that there will be a financial cost to the state as a result of bringing this legislation
forward. I think we have canvassed these issues sufficiently. With respect to the date that the Parliament was
notified, as I said previously in my answer, had the member been listening, I will endeavour to get that
information to the member; it is not necessarily my responsibility. However, I am here representing the
Attorney General. I would like to continue with debate on the legislation.
Dr A.D. BUTI: I am very curious that the minister believes that whoever in this house represents whoever in the
other house is just going to be determined by that person. We do actually have procedures here, and it is
important for this house to know when the minister is responsible for a certain portfolio.
Mr C.J. Barnett: Representations between the houses was tabled by myself at the beginning of this
parliamentary session.
Dr A.D. BUTI: Premier, that was a question that I was trying to get an answer to.
Mr C.J. Barnett: It was tabled; the member should have been concentrating at the time.
Dr A.D. BUTI: The Premier’s minister does not even know, so do not go on about me concentrating.
The minister does not even know!
Mr P. PAPALIA: I have a quick question, following on from the minister’s observation about the much more
detailed knowledge we have of the financial impact of this legislation, as opposed to the other bill in the upper
house. Can the minister tell the house the projected recurrent cost of this legislation in the third year from its
implementation when those full figures of 206 adults and 60 juveniles will come to fruition? If they do, what will
be the recurrent cost to the budget at that time?
Mrs L.M. HARVEY: As I mentioned previously, based on the current prison population and incarceration rates
we estimate an additional 56 adult prison beds and 29 juvenile detention beds required in the first year,
increasing to 206 adult prison beds —
Mr J.R. Quigley interjected.
The DEPUTY SPEAKER: Order! Minister, your voice was a bit low, so if you could speak up, it would be
good.
Mrs L.M. HARVEY: I have answered the question previously, but I will say it again: we estimated 56 adult
prison beds and 29 juvenile detention beds in the first year, potentially increasing to 206 adult prison beds and
60 juvenile detention beds in the fourth year. The estimate of those costs for Corrective Services, based on
a daily cost of $333 for adults and $678 for juveniles will be $13.92 million in the first full year of the legislation
being in place, increasing to approximately $43 million in the fourth year. However, I provide a caveat to those
estimates that we do not know, and it is very difficult to quantify, what the deterrent effect of legislation like this
might be and the impact it may have on criminal offending.
Mr P. PAPALIA: Just a small correction, minister. In the current budget the cost per day for an adult prisoner is
$345. My estimation is based on those figures and for juveniles and adults in the fourth year—the third year after
implementation—$93 million recurrent will be added to the budget. The government’s inability to project any
reduction as a result of recidivism suggests that it is a very lightweight justification for the bill. The argument the
minister made in the public domain was that this bill will considerably reduce burglary —
The DEPUTY SPEAKER: Member for Warnbro, I think you are straying from the six words of clause 3.
Mr P. PAPALIA: I have a question in regards to that. What is the latest study that the minister’s office, the
Attorney General’s office or the department analysed with respect to the potential impact of the amendment to
the three-strikes legislation being debated in this house in Western Australia? What was the latest study assessed
with regard to both the impact historically and any potential further impact as a consequence of the change?
1024
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Mrs L.M. HARVEY: The member for Warnbro is getting recurrent cost and capital cost confused. When there
was debate and discussion in the early days of this legislation first being proposed, there was some conjecture in
the community that there may be a requirement to build a new facility and that cost was put at $93 million,
which is where that figure has come from.
Mr P. Papalia: No, I calculated the costs; 206 adults and 60 juveniles adds up to $93 million recurrent.
The DEPUTY SPEAKER: Order, member for Warnbro!
Mrs L.M. HARVEY: Although the actual daily cost may be dated, those are the estimates I have been provided
with.
Mr P. Papalia interjected.
The DEPUTY SPEAKER: Member for Warnbro, allow the member to complete her answer, please.
Mrs L.M. HARVEY: As I said, the costs I have are the estimates that have been provided to me at this point in
time, but it is impossible to determine the deterrent effect of new legislation when it is introduced.
Mr J.R. QUIGLEY: As to responsibility, we are going to come to some of these clauses in detail later and some
of the clauses seem to contradict some of the Attorney General’s previous legislation and public statements.
I refer to the Premier’s helpful interjection earlier that at the start of the Parliament he tabled the list of ministers
in this chamber who would be representing ministers from the other chamber.
Mr C.J. Barnett: And vice versa.
Mr J.R. QUIGLEY: I was paying attention and it was the honourable Deputy Premier who was nominated as
the minister representing the Attorney General.
Mr C.J. Barnett: That was last year. This year it is the police minister. This year the police minister represents
the Attorney General and vice versa.
Mr J.R. QUIGLEY: That was tabled this year, was it?
Mr C.J. Barnett: Yes, that’s correct.
Mr J.R. QUIGLEY: Therefore, I ask: when this bill was introduced last year and second read by the minister
last year, is she able to confirm, based on the helpful interjection by the Premier, that at that time she introduced
and second read this bill into this chamber she was not the minister representing the Attorney General in this
chamber?
Mrs L.M. HARVEY: Madam Deputy Speaker —
Mr C.J. Barnett interjected.
The DEPUTY SPEAKER: Order, Premier!
Mrs L.M. HARVEY: I am the police minister in the state of Western Australia, member for Butler. I am very
familiar with this piece of legislation and have been heavily involved in the drafting and management of it. As
such, I read it in. It is here; it is being debated. I am curious about what point the member is trying to make on
clause 3, which states —
Act amended
This Part amends The Criminal Code.
I am here as the WA police minister representing the Attorney General and the government in the state of
Western Australia with this amendment to the Criminal Code. I have been authorised as the responsible minister
to bring this legislation through this Parliament. I would like to get on with it.
Mr J.R. QUIGLEY: I thank the minister. She might then be kind enough to get on with answering this one
question. Is it true that at the time the minister introduced this bill into this chamber, she did so as police minister
and not as the minister representing the Attorney General?
Mrs L.M. Harvey: I think that is exactly what I just said.
Dr A.D. BUTI: The minister stated last week and numerous times today that she had carriage of this bill
representing the Attorney General. Hansard will show that is what she stated, so she is misleading Parliament.
She is either the police minister with carriage of this bill or the minister representing the Attorney General.
Today and also last week, the minister said she had carriage of this bill representing the Attorney General. The
minister has definitely misled Parliament.
Mrs L.M. HARVEY: I am multitasking, member for Armadale; I am the Minister for Police and I am also
representing the Attorney General —
Dr A.D. Buti interjected.
The DEPUTY SPEAKER: Member for Armadale, allow the minister to answer.
[ASSEMBLY — Wednesday, 11 March 2015]
1025
Mrs L.M. HARVEY: I am also representing the Attorney General with a key piece of legislation that was an
election commitment of the government.
Dr A.D. BUTI: Yes, we do want to progress this bill, but it will be very difficult if that is to be the quality of the
minister’s answers. One minute in an answer to the member for Butler she states that she was the police minister
when she introduced this bill, but for the rest of today and last week, the minister stated she had carriage of this
bill in this house as the representative of the Attorney General. The minister cannot just flip-flop. In response to
a question or interjection by the member for Mandurah the minister said the bill was being introduced into this
house because it will have financial implications and that may be an argument she can carry; however, she has
flip-flopped on what position she holds in relation to this bill. It is very important to know whether she is the
police minister carrying this bill in this house or the minister representing the Attorney General. Today and last
week the minister stated that she had carriage of the bill in this house representing the Attorney General. In
response to the member for Butler just then, she said she introduced the bill as the police minister. It is just
absolutely absurd that the minister can flip-flop and mislead Parliament.
Mr P. PAPALIA: I owe the minister an apology, so I will apologise. She is right, I was getting those figures
with regards to costs mixed up in my head. Can I ask the minister to give the house the projected recurrent costs
in the fourth year if the figures she identified—being 206 adults and 60 juveniles—come to pass?
Mrs L.M. HARVEY: I have already given those figures, member. The figures that have been provided to me by
Corrective Services have that cost at $42.98 million in the fourth year. I understand that the member has
a different cost per day. But Corrective Services has provided me with that information, and that is what I am
basing my answer on.
Mr P. PAPALIA: I want to go back to the other part of the question that I asked earlier. With respect to the
research that was conducted in crafting this bill by either the minister’s office, the Attorney General’s office or
the Department of Corrective Services, what was the most recent study of the Western Australian legislation, and
the impact of the three-strikes component of that legislation in particular, that was analysed by the people
crafting the bill in determining the potential outcome?
Mrs L.M. HARVEY: It was a very interesting research project, actually, that was conducted with the assistance
of police and the Attorney General. It was quite a painstaking process, member for Warnbro, because dwelling
burglary in circumstances of aggravation had not been separated out in the systems of either the police or the
Department of the Attorney General as a way for us to determine the exact number of those offences. Part of the
reason that we have created a new offence in this piece of legislation is to ensure that we can correctly separate
out the different levels of offences and determine how many individuals who offend in that manner are being
captured by this legislation. It was not a report. It was more of a research project in putting the cabinet
submission together, putting the legislation together and forming the drafting instructions et cetera. It was not
a formal published report. It was a painstaking and longwinded research project to try to come up with the
possible increase in bed numbers and the number of offenders who might be captured by the legislation. So
I cannot give the member a report to table. It was actually a research project for a number of agencies and
a number of individuals.
Mr P. PAPALIA: In the course of that internal study that was done, was any effort made to determine the
potential impact on Aboriginal juveniles in particular, and Aboriginal adults, in light of the concerns aired by the
member for Cannington, and also in light of the recent commitment made by the Premier?
Mrs L.M. HARVEY: That is actually a particularly difficult piece of work to try to do, because the police will
identify people by ethnicity only if they self-initiate an identification of ethnicity. It is very difficult to then go
into the police system to try to get an accurate depiction of the ethnicity of offenders and compare that with the
Department of the Attorney General’s assessment. Also, once people end up in the corrective services system,
ethnicity is recorded in a different way. Therefore, it is very difficult to try to get the information from the
three systems together and extrapolate that data out with respect to the impact of legislation in which we are
creating a new offence. That is why I am not prepared to put a figure out there, because the base systems that we
extrapolate our figures from do not collect data in the same fashion.
Mr P. PAPALIA: Minister —
The DEPUTY SPEAKER: Member for Warnbro, we have had a fair bit of latitude in looking at this clause.
Mr P. PAPALIA: Madam Deputy Speaker, I am pursuing a line of questioning, for a reason.
The DEPUTY SPEAKER: Yes, but if you could make sure that it relates to the six words in this clause, please.
Mr P. PAPALIA: It does, Madam Deputy Speaker, because we are amending the Criminal Code. The minister
said in her second reading speech that this bill does three things, the second of which is that it amends the current
counting rules for home burglary repeat offenders. So, it is a counting rule change. This is already a law. This is
not making a new law. This is a specific change to the way in which the offence is counted. It has been
1026
[ASSEMBLY — Wednesday, 11 March 2015]
predicated by a lot of people that the consequence of this change is that there will be a disproportionately large
impact on Indigenous juveniles. I am asking the question about what research was done. In 2001, a specific study
was done on the three-strikes mandatory sentencing laws in Western Australia. That study was entitled
“Mandatory Sentencing in Western Australia & The Impact on Aboriginal Youth”. That is, as far as I know, the
most recent specific study of the impact on Aboriginal juveniles of the three-strikes legislation and the
mandatory sentencing associated with that legislation. That report states in part —
Inevitably, the greatest impact of Western Australia’s mandatory sentencing laws has been on juveniles
and, in particular, Aboriginal juveniles. By 1999, research had indicated that 80% of juveniles dealt
with under the laws were Aboriginal. In early 2000, the then government ‘corrected’ this figure to 74%.
The recent Department of Justice Review affirms a figure of 81%. This means that four fifths of the
three strikes case are drawn from less than one third of offenders appearing in the Children’s Court.
I do not imagine that much has changed with regard to those disproportionate representation statistics. I find it
interesting that no analysis of the potential further disproportionate impact of this amendment to the
Criminal Code has been engaged in by either the department, the minister’s office or the Attorney General’s
office.
Mrs L.M. HARVEY: As I have said, burglary offences are not separated out at present into aggravated home
burglary, aggravated dwelling burglary et cetera, but when we put all those burglary offences together, currently
79.63 per cent of the people who are incarcerated for burglary offences in the youth space are Indigenous. But,
as I have said previously, we are looking at a range of initiatives to try to work with those young offenders on
what are the causes of their entry into criminal offending and move them away from their offending behaviour,
and that is where the government’s objectives and priorities are going to be. However, notwithstanding that, if
young offenders and adult offenders are recidivists in this space, they will be subject to this legislation.
Mr W.J. JOHNSTON: Could the minister outline what diversion programs the government is instituting to get
people away from offending?
The DEPUTY SPEAKER: Member for Cannington, I am really not sure that that relates to clause 3.
Mr W.J. JOHNSTON: Madam Deputy Speaker, the minister used that in her answer to the question on this
clause. All I am doing is trying to get the minister to explain what she meant by her own comment. I cannot see
how the minister’s comment was within standing orders and my question about her comment is outside standing
orders, because all I am doing is asking the minister to clarify her answer.
The DEPUTY SPEAKER: Member, can you please direct your question to clause 3.
Mr W.J. JOHNSTON: Okay. In respect of clause 3, the minister explained that she does not know the effect on
Indigenous people because she does not have the statistics available to her. However, she said that 79 per cent—
which was a figure that my colleague the member for Warnbro largely agreed with—of juveniles were affected
by the current arrangement for mandatory sentencing for home burglary. If we go back to the royal commission
into black deaths in custody, it talked about ensuring that there was a law reform that would protect the interests
of Indigenous people. The minister said that she is looking at the question of what is the cause for them—I do
not remember the minister’s exact words—to go down the path of offending, and that the government has
diversion programs in place. The minister is asking Parliament to make these amendments. Everybody, apart
from the minister, has looked at the report of the royal commission into black deaths in custody. Given that the
minister has not read the report of that royal commission, we are trying to establish what the minister is doing to
adhere to the recommendations of that royal commission. The royal commission was very specific about trying
to avoid jailing Indigenous Australians. That is one of the fundamental recommendations in the report. If the
minister reads the report of that royal commission, she will see that that is what it says. I am trying to establish
what the minister is doing to comply with the recommendations of the royal commission into black deaths in
custody. The minister has raised the issue of diverting people from offending behaviour, and she has also raised
diversion programs. I want to know what the government is doing to make sure that we do not have this very
high rate of Indigenous imprisonment.
Mrs L.M. HARVEY: I have answered this question previously.
Mr J.R. QUIGLEY: I accept, of course, and understand the member’s answer given before, that she introduced
this bill as the Minister for Police and that it was a central part of the Liberals’ campaign in the last election. I, of
course, unquestionably accept that the government received a mandate for this legislation, which is why we are
not opposing it; we never oppose the people’s mandate. But when the honourable Premier announced the policy
and said that there would be a new tranche of mandatory sentencing, he said that everybody in the community
knows that some judges are not doing the right thing. Does the minister recall that?
Mrs L.M. Harvey: Member go on; this isn’t Q&A. I want the member to get to his question.
Mr J.R. QUIGLEY: That is a question: Does the minister recall —
[ASSEMBLY — Wednesday, 11 March 2015]
1027
Mrs L.M. Harvey: Finish your question and sit down and I’ll answer it.
Mr J.R. QUIGLEY: That is my question.
Mrs L.M. HARVEY: I think the announcement was made in February 2013. I cannot quote the actual specifics
of what each individual said in that media release, but I have it in here. What I will say is that the community of
Western Australia constantly expressed to us that the judiciary does not sentence consistent with its expectations
and that is what this legislation is designed to address. We are introducing mandatory minimum terms because
the community of Western Australia said that it wanted minimum sentences increased, longer sentences and
more time behind bars for not only those who commit violent crimes, but also recidivist offenders. We listened
to the community. The community told us what it wanted us to do and, as elected members, we are doing it,
which is why our election commitment, in the form of this piece of legislation, is before the house.
Mr J.R. QUIGLEY: The minister has said here that some of the judges are not doing what the community
wants.
Mrs L.M. Harvey: No, I said that community members have expressed to me in numerous forums their
frustration that sentences are not consistent with their expectations. That is what I have said consistently for
a number of years.
Mr J.R. QUIGLEY: That might be a community belief, but I am asking about the minister’s belief, not the
community’s belief, as a minister of the state.
Mrs L.M. Harvey: My beliefs are irrelevant to this legislation. Obviously, I support the legislation; I am
bringing it through the Parliament.
Mr J.R. QUIGLEY: Did I get that right? The minister’s beliefs about this legislation are irrelevant. Do
I understand that to be the minister’s position?
Mrs L.M. HARVEY: I am really pleased to be here as Minister for Police in Western Australia bringing
forward for debate in this Parliament a piece of legislation that we promised the community as an election
commitment. I support the legislation. I agree 100 per cent with the sentiments of the community and victims
who feel that offenders are not receiving sentences that correctly punish them as a consequence of their
offending behaviour. That is why this legislation is before the house. I support the legislation 100 per cent. The
member for Butler has heard me talk about it in numerous places. My views on this issue are well known and
well canvassed.
Mr J.R. QUIGLEY: If I may, with your indulgence, Madam Deputy Speaker, just ascertain whether it is the
minister’s belief that some offenders are not receiving the appropriate punishment.
The DEPUTY SPEAKER: Member for Butler, I do not think this relates to clause 3. You are straying away
from it.
Mr J.R. QUIGLEY: With respect —
Mrs L.M. Harvey: Yes.
Mr J.R. QUIGLEY: The answer is yes. Can the minister tell us please which judges are not imposing the
correct sentences and which cases they involve?
Mrs L.M. HARVEY: I do not think it is appropriate in this house to canvass the rulings of individual judges and
magistrates in any matter.
Mr J.R. QUIGLEY: This lacks integrity, does it not? The minister stood here and said that some people are not
receiving the right sentences, but she will not tell us which judges or which cases evidence that. Will the minister
tell us which cases at least evidence that people are not receiving the right sentences by the judiciary?
Mr W.J. JOHNSTON: Could the minister tell us how many cases are examples —
Mr J.R. Quigley: I didn’t get —
Mr W.J. JOHNSTON: The minister does not have to answer; she is not prepared to answer. The member for
Butler’s question remains unanswered and given that it appears that the minister does not want to answer that
question, can she tell us how many sentences for offences have not met the community’s expectations since she
became the police minister?
Mrs L.M. HARVEY: When we researched sentencing for repeat home burglars and individual cases in which
violent acts had been committed in the course of a home burglary, a number of cases stood out and I talked about
them in my summing up of the second reading debate last night. As I said previously, it was a complex and
convoluted process to extract the information. A range of judgements stood out as being insufficient, including
the case of a 17-year-old offender who committed 114 offences, including 25 burglaries, of which 23 were in
dwellings, and 12 aggravated burglaries in a six-year period. The first period of detention was imposed upon him
1028
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for the fifteenth offence. So, there are cases there. As far as individual cases go, I am not like the member for
Butler, because I do not believe in using parliamentary privilege to name individuals in a forum in which they do
not have an opportunity to defend themselves. I would prefer to get on with debating clause 3, “Act amended”,
which states that this part amends the Criminal Code.
Mr J.R. QUIGLEY: In her second reading speech, did the minister not refer to three cases individually and did
she not name them in correspondence to me?
Mrs L.M. Harvey: I think you know the answer to that because I just referred to my second reading speech.
Mr J.R. QUIGLEY: How can it be? The minister is not telling the truth and is lacking integrity because she was
prepared to come into this chamber and identify three cases—Ugle, Thorn and Miller—and by identifying those
three cases, she was happy to identify Mr Justice Pullin, Mr Justice Buss and Mr Justice Mazza of the Court of
Appeal, and Mr Justice Steytler, Mr Justice Robert Smith and Her Honour Justice McLure. The minister was
prepared to put all those names out in Parliament, was she not, by naming the cases? The Minister for Police said
she had all these cases, but she will not tell us the cases so that the community can test, or be satisfied, that what
she is saying is the truth. Is this a secret that the minister is going to keep from us?
Mrs L.M. Harvey: I have already answered the question, member for Butler.
Mr J.R. QUIGLEY: Is there a database of cases in Western Australia, that the community could look at, of all
sentences to see whether the minister is telling this Parliament the truth?
Mrs L.M. HARVEY: The Director of Public Prosecutions’ website has data on it for particular convictions and
sentencing outcomes. People can access that information freely from the website.
Mr J.R. QUIGLEY: Thank you, minister; I have. I can assure the minister that I have printed every case and
I will go through those section by section when we come to the substantive clauses of the bill. It is true, is it not,
that they relate only to appeal cases—there is no sentencing at first instance? I do not want to put words in the
Chief Justice’s mouth, but it is a concern of the Chief Justice that the government will not fund the database, so
no-one will know in Western Australia —
The DEPUTY SPEAKER: Member for Butler, we really are straying from clause 3 now. Please direct your
question to the clause.
Mr J.R. QUIGLEY: I am; I am going to what the minister said. The Minister for Police said she knows all these
cases and I want to ask: where are these cases? This is very important legislation; if I can just address
Madam Deputy Speaker’s concern.
The DEPUTY SPEAKER: Thank you.
Mr J.R. QUIGLEY: This legislation of course strikes at the separation of powers. This is the legislature telling
the judiciary what they must do. There is no question that this legislation strikes at the constitutional
arrangements of Western Australia. When I say that, we cherish an independent judiciary. I remember when the
previous Labor government introduced laws concerning redistribution and one vote, one value, it was with
confidence that the National Party and the Liberal Party ran down with the then Clerk of the Legislative Council
to an independent judiciary to see whether the Labor laws were constitutional, and they were struck down
because we had an independent judiciary. These laws strike at those constitutional arrangements. It is not
unreasonable that we are looking for the evidentiary basis behind the policy. Each clause deals with individual
offences. My questioning about what the government knows about sentencing is very relevant to this particular
clause. Do not worry, the limited database that is available—it is a very limited database that is available—deals
only with cases on appeal. For all the other sentences, there is no database available to the public. It may be
available to the government, and it has come up with this policy —
The DEPUTY SPEAKER: Thank you, member for Butler. Direct your question to the minister.
Mr J.R. QUIGLEY: Thank you.
Beyond the database of appeal cases only, which comprise a very small proportion of sentencing case law, does
the Minister for Police or the government—the police might do this—have a database available to them of
sentencing at first instance across jurisdictions?
Mrs L.M. HARVEY: I would like to go back to one of the comments that the member for Butler made
previously, saying that this strikes at the heart of the Constitution et cetera. This is a Westminster system of
government. In a Westminster system, Parliament makes the legislation. We make the laws; we pass the laws.
The community of Western Australia, in a democratic society, elects us to pass legislation that it supports. That
is the role of this Parliament. It is then the role of our law enforcement agencies, our judiciary and our court
system to act within the parameters of the legislation that we, as elected members, agree on. I disagree with the
member for Butler’s assertion that this strikes at the heart of the Constitution. The role of the Parliament is to
debate and pass legislation. That is what we are here for.
[ASSEMBLY — Wednesday, 11 March 2015]
1029
Mr J.R. QUIGLEY: That part of my speech was actually trying to convince Madam Deputy Speaker of the
relevance of my question. But now I want to put the question again, because the minister did not address the
question. I agree with the minister that on the DPP’s website is a database of appeal cases only, which comprise
a very small percentile of sentencing case law. Does the government, the police department or any other
government agency have a database of the sentences passed at first instance across several jurisdictions?
Mrs L.M. HARVEY: My understanding is that that information is available on the Department of the
Attorney General’s website. It is not linked back to individual judicial officers; it is grouped in categories of
offences and then sentencing outcomes in the categories of offences. That is the way that the data is collected. It
does not identify individual cases or names of victims. It is merely a database that collects the type of offence
and the type of sentence that the offender has been meted out as a consequence of their offending.
Mr J.R. QUIGLEY: Is the minister saying that available on the Department of the Attorney General’s website
is a case-by-case database of sentencing, with the names deleted?
Mrs L.M. HARVEY: No, that is not what I said.
Mr J.R. Quigley: I am sorry; perhaps you could help me.
Mrs L.M. HARVEY: I said that the offences are grouped in categories and the sentencing outcomes are collated
as part of a group database. As I understand it, it is not a case-by-case scenario. I would need to go back to the
Department of the Attorney General’s website. I am actually at a loss to understand what this has to do with
clause 3, which reads —
3.
Act amended
This Part amends The Criminal Code.
Mr J.R. QUIGLEY: With respect, I am in the hands of the Deputy Speaker. I have made a submission on that
and my question is relevant. I have not been overruled on the question of relevance. I am asking for the
evidentiary basis that sits behind the proposed amendment. I have not been overruled on that. The house’s
attention will soon be drawn to the standing orders. Perhaps at three o’clock the Minister for Police will be able
to further explain this database to us because she will have some opportunity to go back to that database and tell
us more about it—which I do not know about—in terms of trying to identify the particular inadequacies in the
sentencing regime. I accept that the minister can say, “We’re not going to the detail. This is popular and we’re
doing it because it’s popular.” That is the truth, is it not? The Minister for Police is saying, “I don’t know the
details of any database and I don’t know the details of individual sentences.” I accept the Minister for Police is
a good politician in terms of sensing which way the wind is blowing. What the government is doing is popular, is
it not, but the Minister for Police does not know the detail. The minister is not relying upon the detail, she is
relying more on public sentiment. Would that be a fair assessment of the minister’s position?
Mrs L.M. HARVEY: As I said previously—the member for Butler has made this comment—the government
took this policy to the community, the community elected us, giving us a mandate to implement our election
commitments, and we intend to implement them. That is what this is about.
Debate interrupted, pursuant to standing orders.
[Continued on page 1039.]
QUESTIONS WITHOUT NOTICE
POLICE — STAFFING — ELECTION COMMITMENTS
123.
Mrs M.H. ROBERTS to the Minister for Police:
I refer to the “Report on Government Services 2015” and table CA.5. Can I get one of attendants to take the
minister over a copy so that she knows exactly what I am referring to? Table CA.5 contains police staff numbers
for all Australian jurisdictions.
(1)
Did the minister’s government not promise in the 2008 election to increase total police staffing by
700 over five years?
(2)
Given these independent and nationally recognised figures show that the total police staff in 2008-09
was 7 474 and that in 2013-14 it was just 377 more, has the government not fallen a massive 323 police
staff short of the Liberal Party’s election promise?
Mrs L.M. HARVEY replied:
Mr Deputy Speaker —
The SPEAKER: No; Mr Speaker.
Mrs L.M. HARVEY: Mr Speaker, my apologies. I was taken back in time!
1030
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(1)–(2) “Staff” also includes public servants, so with respect to the 2008 commitment I would have to go back
to find that election commitment document, to be perfectly frank. But the 2013 election commitment
that I am responsible for implementing now was for an additional —
Mrs M.H. Roberts interjected.
The SPEAKER: Member for Midland, I do not want to hear from you until the minister has answered.
Mrs L.M. HARVEY: The 2013 election commitment was for an additional 550 police and police auxiliary
officers. That is 150 auxiliary officers, training for 200 detectives, and an additional 200 police officers.
Notwithstanding that the agency has self-funded a significant number of redundancies from within WA Police,
we are on track and on target to achieve our commitment we made to the people of Western Australia in March
2013 that they vigorously endorsed. We are on track and on target to achieve that goal. I am absolutely thrilled to
be attending yet another police graduation this Thursday evening, during which the son of the Commissioner of
Police, Dr Karl O’Callaghan, will be graduating.
Point of Order
Mrs M.H. ROBERTS: My question was quite specific. It referred to the 700 additional staff promised at the 2008
election by the Liberal Party and its failure to deliver the 700 additional staff. I would ask the minister to address
that, not to say that she is not responsible for it. I will provide a copy of that to the minister, too, if she likes.
The SPEAKER: No, thank you; you have made your point.
Dr K.D. HAMES: Mr Speaker, further to that point of order, the opposition continues to raise this issue of the
direct, specific answering of questions. The standing orders do not require that; they require that the answers be
relevant, and it is up to you to decide whether it is relevant or not.
The SPEAKER: Thank you for that. Minister, can you address the question that the member for Midland asked
you.
Questions without Notice Resumed
Mrs L.M. HARVEY: I am more than happy to. I love talking about good news stories for the Liberal-National
government, and this is a great news story! We went to the election in 2008 promising 500 police and police
auxiliary officers. We have achieved it. We went to the electorate in March 2013 promising 550 additional police
and police auxiliary officers, and we are well on the way to achieving it. I am proud of that commitment. There
are more police officers in the state now than there have ever been. WA Police has a $1.2 billion budget, it is
engaged in a tremendous reform program and it is changing the way it delivers policing to the community of
Western Australia. People in the community are endorsing what we are doing; they love the change in policing
effort out in our local communities. They love their local policing teams. This is a great news story. Every time
I stand in this place and talk about policing I just have one good news story after another, and I thank the
member for Midland for giving me the opportunity to spruik it!
POLICE — STAFFING — ELECTION COMMITMENTS
124.
Mrs M.H. ROBERTS to the Minister for Police:
I have a supplementary question. Minister, it is here in black and white in the “Report on Government Services”.
The minister has failed in recruiting 700 extra police staff: why does she continue to mislead this house and why
will she not just fess up and apologise?
Opposition members: Hear, hear!
Mrs L.M. HARVEY replied:
The member is being deliberately mischievous in the way she is presenting this information. She is talking
collectively about police officers and police public servants. Police, as I have said previously, is engaged in
a reform program. We are reviewing every aspect of policing, and we are determining whether —
Mrs M.H. Roberts interjected.
The SPEAKER: Member for Midland, I call you to order for the first time.
Mrs L.M. HARVEY: We are determining the level of service that police are going to be providing to the
community. We are looking at what every public servant does in WA Police and ensuring that their work is
relevant to supporting frontline service delivery, responding to calls for assistance from the community and
delivering a topnotch, first-class police service in Western Australia. That is what we are committed to doing,
and we will continue to do it in the context of growing our police numbers. What the member for Midland does
not tell people in this place is that the opposition’s commitment was for 500 police auxiliary officers. We said
550, and we are achieving it.
[ASSEMBLY — Wednesday, 11 March 2015]
1031
Point of Order
Mrs M.H. ROBERTS: Is the minister prepared to accept a copy of the Liberal Party policy and examine it,
because she said she is not aware of it?
Several members interjected.
Mrs M.H. ROBERTS: Why does the minister not have a look at it?
The SPEAKER: Member for Midland, you know that is not a point of order, and if you make these spurious
points of order, I will call you.
MINING AND PETROLEUM INDUSTRY — GOVERNMENT EXPLORATION INITIATIVES
125.
Mr I.C. BLAYNEY to the Minister for Mines and Petroleum:
Firstly, may I acknowledge the year 6 student leaders from St Anthony’s School from the member for
Wanneroo’s electorate who are in the gallery today.
Can the minister please update the house on the state government’s initiatives to encourage exploration in
Western Australia?
Mr W.R. MARMION replied:
I thank the member for Geraldton. He is a strong supporter of the mining and petroleum industry in
Western Australia, and particularly in the midwest.
I am delighted to update the house on what the Western Australian government has been doing to support
exploration in both those areas.
Several members interjected.
The SPEAKER: Member for Cannington, we are only on the first question. Put your name down and ask the
question.
Mr W.R. MARMION: It could be a long answer, Mr Speaker.
I had the pleasure, two weeks ago, to go to the open day of the Geological Survey of Western Australia. That
open day displays the latest innovations my department has been undertaking in terms of geological research and
analysis in Western Australia. A number of innovations were on display, but when I was there I saw the results
of the latest round of the exploration incentive scheme. Under that scheme, which has been going since 2009, we
have been co-funding a lot of drilling programs—up to about $5 million a year—and with the data we have been
gathering, we have been able to get more information about the geological nature of Western Australia’s crust.
Although the Geological Survey of Western Australia already has a very good surface analysis of
Western Australia, the extra data we have been able to obtain from our drilling program has been used to
develop a three-dimensional model of the geological structure of our crust. This three-dimensional data is very
useful for our mining and exploration companies to de-risk their drilling programs. One of the benefits of our
program has been the de-risking of exploration.
At the open day I had great pleasure to announce round 11 of our co-funded drilling program, which is one of the
most important parts of the exploration incentive scheme. That offers up to $5 million for mining companies in
Western Australia to co-fund their drilling program, at a time when supporting the mining industry is very
important. That round is open now. It is the first round of funding from the consolidated revenue fund. We have
$30 million of CRF funding over the next three years. It will increase the total funding that this government has
provided to the mining industry for exploration through the exploration incentive scheme. Exploration is a risky
area. It is very important to discover new resources. A total of $130 million will have been provided by this
government to help mining and exploration companies from 2009 to 2017.
In the past 12 months there have been some very good discoveries. There has been a new gold discovery at
Alloy Resources’ Horse Well project. There is antimony mineralisation at Artemis Resources’ Eastern Hills
project. Encounter Resources has had success with the discovery of zinc at Millennium. Very importantly,
Panoramic Resources has made a nickel discovery at Savannah North. One of the well-known successes from the
EIS has been Sirius Resources’ Nova discovery, which will go into production early next year. That shows one
of the real successes of this program. The present net value will show that it is well above 10 when we analyse it
next year.
Some minor projects were also on display at the Geological Survey of Western Australia open day. There were
new systems to show its award-winning application —
The SPEAKER: Wind it up, minister.
1032
[ASSEMBLY — Wednesday, 11 March 2015]
Mr W.R. MARMION: — about the latest geoscience resources. I will close. There is an app for those
geologists who —
Mr W.J. Johnston interjected.
The SPEAKER: Member for Cannington!
Mr W.R. MARMION: I know that the member for Cannington’s daughter is a geologist, so he should be
paying attention.
Several members interjected.
The SPEAKER: Members! Member for Cannington! Will you table that phone, minister?
Mr W.R. MARMION: This phone is just a visual aid, Mr Speaker.
One of the most important applications at the open day was the new app linked to the geological structure of the
earth. If we plug in this app, it will tell us exactly what the geology is under our feet. It is fantastic. I encourage
all members to download that.
POLICE STAFF TO POPULATION RATIO
126.
Mrs M.H. ROBERTS to the Minister for Police:
I again refer to table CA.5 of the “Report on Government Services 2015”, which I have already provided to the
minister.
(1)
In 2008–09, was the police staff to population ratio 338 staff per 100 000 people?
(2)
Is the police staff to population ratio now only 308 staff per 100 000 people?
(3)
Does this mean that there are now far fewer police per person than there were when the Liberal Party
came into office; and, if not, why not?
Mrs L.M. HARVEY replied:
(1)–(3) She is back for more punishment. The member for Midland cannot stand the fact that we have
committed to 550 additional police and police auxiliary officers and we are achieving it. She cannot
bear it. She also cannot stand that our police officers are more effective than ever because they are
examining and re-examining the way that they do business. We have already recruited a large number
of our detectives.
Point of Order
Mrs M.H. ROBERTS: I have not asked a general question. My question is whether there are now fewer police
per population than there were in 2008. It is a rather simple question and perhaps the minister could just answer
that, rather than give a rehearsed diatribe.
The SPEAKER: You have made your point. That was a specific question, minister.
Questions without Notice Resumed
Mrs L.M. HARVEY: It is so typical of the Labor Party; all it wants is numbers, numbers, numbers.
Several members interjected.
Mrs L.M. HARVEY: Do members know what we want over here? We want effectiveness.
Several members interjected.
The SPEAKER: Member for Warnbro and member for West Swan, I do not want to hear you when I am on my
feet.
Mrs L.M. HARVEY: We on this side of the house are about effective policing. Members opposite want bums
on seats. We are delivering police officers into our community at a faster rate than they have ever been delivered
before. The important question here is: what are we achieving? We have achieved a 7.6 per cent reduction in
total offences against the person from when the Labor Party was in government. We have achieved a 33 per cent
reduction in offences against property from when the Labor Party was in government.
Point of Order
Mrs M.H. ROBERTS: I understand, Mr Speaker, that following my earlier point of order you asked the
minister to answer the question that I asked, rather than give her usual prepared diatribe. I believe she is in
contempt of your ruling.
The SPEAKER: Minister, the question was whether there are fewer police per 100 000 people, so can you just
address that.
[ASSEMBLY — Wednesday, 11 March 2015]
1033
Questions without Notice Resumed
Mrs L.M. HARVEY: I am talking about the effectiveness of police. When we look at the offence rate per
100 000 people, which feeds directly into the effectiveness of our policing effort, we see that in 2007–08 there
were 653 non-domestic assault offences per 100 000 people in 2004 and that is down to 436 offences per
100 000 people. That is a significant reduction. In 2007–08, there were 1 209 dwelling burglary offences per
100 000 people. How were we in 2013–14? There were 1 009 offences per 100 000 people. The crime rate is
going down. Policing is more effective than ever before. Our strategy is working. Our police are working harder
than ever before. The member for Midland cannot stand it, but the community loves it. Our police know that
they are supported by a government that introduces legislation to support their efforts in the community. We will
continue to do this because the community want that promise fulfilled.
POLICE STAFF TO POPULATION RATIO
127.
Mrs M.H. ROBERTS to the Minister for Police:
I have a supplementary question. Is the minister right or is the Productivity Commission right when it states that
we have fewer police per 100 000 people than we had in 2008?
Mrs L.M. HARVEY replied:
Once again, it goes to effectiveness. WA Police are effective. The community satisfaction rating in the areas in
which we have deployed our new policing model has increased to 15 per cent. We are above the national average
for effectiveness and satisfaction with police. We stand on our record.
WATER INVESTIGATIONS — MURCHISON
128.
Mr V.A. CATANIA to the Minister for Water:
Recently, investigations have been taking place in the Murchison to find new water to support industry. Can the
minister please provide an update on this work?
Ms M.J. DAVIES replied:
I thank the member for North West Central for his question and his interest in this portfolio. It is very important.
The significant projects underway in the water portfolio are all geared to driving diversity and economic growth,
which is leading to jobs. This program is really exciting. There has been significant interest in some of the hightech investigations of the palaeochannels in the Murchison that are underway to support new development of
water resources. We are undertaking aerial electromagnetic surveys over 57 000 square kilometres in the
east Murchison, which will precisely locate and identify the water quality and quantity in some of those
palaeochannels. For members who are not aware, an aerial electromagnetic survey involves a helicopter with
a magnetic coil beneath it flying around 90 metres above the ground, measuring and sending electromagnetic
pulses into the ground. We are carrying out these surveys across the state but the Murchison is one area in
particular that we have identified. It is an exciting project. It is part of a $25 million royalties for regions
investment to investigate groundwater resources across the state, identify new sources of water, prove up their
quality and quantity and maximise our current resources.
I have spoken previously in this place about the investigations that we have undertaken down in Albany, the
great southern and the south coast. I can now report that we have sunk up to 16 investigation bores in the Albany
hinterland and two long-term monitoring bores have been constructed. We will prove up that resource by
measuring those bores over a period, which will allow us to better define that work without having to drill
a number of bores, and it minimises our expenses upfront.
We are also assessing the Hamersley range near Karratha, member for Pilbara. It appears that up to 10 gigalitres
a year might be available for Onslow, member for North West Central, and 20 gigalitres for the west Pilbara and
the west Canning Basin. We know that there are significant resources. Areas near Port Hedland are showing
some very promising signs. We think there is a potential to find up to 50 gigalitres of water in this space in
addition to what we have already discovered. Investigations are also occurring in and around Broome and at the
Wallal aquifer. We will provide some more information on that groundwater availability and where to extract the
water, while maintaining important cultural and environmental aspects in that space. That program is helping us
to define those aspects as we move forward.
All of this work will inform the decisions that we make about investment going forward. It provides information
to the private sector, to government and to local government, and it ensures that our regions continue to grow,
made possible by royalties for regions. Our water resources are significant and we need to ensure that we
continue to invest in this space.
1034
[ASSEMBLY — Wednesday, 11 March 2015]
ROAD SAFETY REVIEW — PETER BROWNE CONSULTING
129.
Mr M.P. MURRAY to the Minister for Police:
I refer to the Peter Browne Consulting report “A Review of Road Safety Governance in Western Australia” that
the minister received last June.
(1)
Can the minister advise whether she will be implementing all of the recommendations?
(2)
Which recommendations will the minister not be supporting and why?
Mrs L.M. HARVEY replied:
(1)–(2) The government is considering the report of the Browne review. I expect to release our response to it in
the near future.
ROAD SAFETY REVIEW — PETER BROWNE CONSULTING
130.
Mr M.P. MURRAY to the Minister for Police:
That answer was very short. It sounded like the minister did not know the answer. Anyway, I ask
a supplementary question. What does the minister attribute the massive increase in critical injuries in 2014 to,
including many in country areas?
Mrs L.M. HARVEY replied:
I am not sure how this supplementary question relates to the original question. It is true that last year was not a
good year for road safety in this state. As of midnight last night, this year’s road toll stands at 31 fatalities. In
response to last year’s road toll, the government announced a number of initiatives. There was a disproportionate
representation of motorcyclists in the number of fatalities and serious injuries. The Motorcycle Safety Review
Group, an expert group of people, is looking at the number of fatalities and serious injuries. It is carrying out
a comprehensive review of over 7 000 motorcycle crashes over the past five years. It will be making
recommendations to government on any trends or patterns that are emerging in that space. Interestingly, one of
the first myths to be dispelled is that people do not see motorcyclists in wet weather. That review shows that the
vast majority of motorcycle crashes occurred on bright, sunny, clear days. That review was one of our initiatives.
We have set up another expert panel to investigate road safety in regional WA. It is looking at a range of major
roads and highways throughout the wheatbelt to see where these fatalities and serious injuries are occurring. We
expect this group to make a recommendation to the government on whether there is an education
responsibility —
Point of Order
Mrs M.H. ROBERTS: I note that once again the minister is not answering the question asked. It was
a supplementary question asking whether she knew what drove the massive increase in critical injuries in
2014 compared with the previous year. We have had nothing from her as to what is driving the critical injuries; it
is just a random diatribe on road safety.
The SPEAKER: You made your point, member. Minister, I think you were coming to that answer. Can you
wind it up, please.
Questions without Notice Resumed
Mrs L.M. HARVEY: Mr Speaker, I think I was quite specific. I talked about the road toll last year. I said that
there was a disproportionate representation of motorcyclists. We are doing something about that. There was
a disproportionate representation of fatalities in the wheatbelt. As a result of the disproportionate number of
fatalities and serious injuries in the wheatbelt, we are reviewing where those crashes are occurring. We are
looking at whether patches of road need to be improved and whether we need an education campaign. Some of
the crashes involve seatbelts, some involve alcohol and some involve drug-affected drivers. I have asked the
review group to come back to me and tell me where the trends are so that the government can initiate whatever
policy levers we need and take action to prevent them.
Mr P.B. Watson interjected.
The SPEAKER: Member for Albany, I call you to order for the first time.
CRIMINAL CODE AMENDMENT (PREVENTION OF LAWFUL ACTIVITY) BILL 2015
131.
Mr J. NORBERGER to the Minister for Police:
Can the minister please advise the house how the government proposes to address the growing incidence of
dangerous behaviour by some protesters?
Mrs L.M. HARVEY replied:
The Liberal–National government introduced legislation in the other place aimed at addressing the exact
behaviour that the member for Joondalup raises. I appreciate the member raising this matter. This government
[ASSEMBLY — Wednesday, 11 March 2015]
1035
believes that although people have a democratic right to protest, companies and employees of those companies
also have the right to conduct their business. In the past few years, we have seen the radicalisation of a lot of
these protest actions. We are seeing protesters using lock-on devices —
Mr D.J. Kelly interjected.
The SPEAKER: Member for Bassendean, I call you to order for the first time.
Mrs L.M. HARVEY: We are increasingly seeing the action of protesters designed in such a way as to prevent
the lawful actions of other people. We have seen protesters stick their arms into pipes, lock their thumbs into
thumb locks and lock themselves onto roads, preventing the lawful activity and the lawful progression of
machinery and equipment to undertake exploration activity, for example. I have some pictures of these lock-on
devices. Mr Speaker, I asked you whether it was all right to bring these pictures into the chamber. These are
photos of the sorts of devices that people are using. This one has big lumps of concrete with chain intertwined
through it. A pipe goes through the middle. It is a 44-gallon drum. The edge of the drum has been cut away.
Locked into the middle of that, if members take a close look, is a protester’s arm.
Several members interjected.
The SPEAKER: Member for Mandurah, I call you to order for the first time. Member for West Swan, I call you
to order for the first time. I do not want the minister drowned out.
Mrs L.M. HARVEY: As I said, police officers tried to extricate the arm of that protester from inside the lock-on
device without causing injury to that protester. It required significant resources of our emergency services and
our police officers to release these protesters.
Dr A.D. Buti interjected.
The SPEAKER: Member for Armadale, I call you to order for the first time.
Mrs L.M. HARVEY: This government says that that is no longer acceptable. We believe in people’s right to
protest but not their right to prevent the lawful activity of other people in our community. We have introduced
legislation that will now make it an offence for people to possess, manufacture or use one of these lock-on
devices that can prevent the lawful activity of other people. That offence will be punishable by up to 12 months’
imprisonment and/or a $12 000 fine.
Dr A.D. Buti interjected.
The SPEAKER: Member for Armadale, I call you to order for the second time.
Mrs L.M. HARVEY: A circumstance of aggravation, importantly, could be that the protester has been injured
in the course of being removed from a lock-on device that has become problematic for police to remove them
from, and for circumstances of aggravation we are looking at doubling the penalty. The reason we are doing this,
and I think this is really important, is that —
Mr W.J. Johnston interjected.
The SPEAKER: Member for Cannington, I call you to order for the first time.
Mrs L.M. HARVEY: We are doing this because protesters will lock themselves onto these devices in the
middle of a road that may be the only access road to a site where a company has a lawful right to conduct its
activities. It is not good enough that they can do that. In remote locations and in certain circumstances, this
sometimes requires police officers to deploy fire trucks. They have to send up a specialist crew of police officers;
we have to fly them to remote areas from Perth to remove these protesters from lock-on devices that they have
chosen to lock themselves onto. We sometimes have to bring in cranes and police officers then have to try to cut
thumb locks off people using angle grinders. That is not a job that I think police officers should have to do, but
in this day and age, with radicalised protesters, that is what we need to do. It is not good enough. We have
introduced legislation to prohibit this activity. Protesters who have been charged with these offences will also
need to pay the costs to the community of their removal from devices. This is great legislation and it will help
the state progress.
POLICE — FEMALE REPRESENTATION
132.
Ms L.L. BAKER to the Minister for Police:
I refer to the 2015 “Report on Government Services”, which shows that WA Police currently has the lowest
percentage of female staff in Australia. Could the Minister for Police tell us the percentage of female staff in
WA Police—she should know, as she is also Minister for Women’s Interests—and please explain how she has
managed to allow that percentage to become the lowest in Australia?
1036
[ASSEMBLY — Wednesday, 11 March 2015]
Mrs L.M. HARVEY replied:
I like the member for Maylands, and I accept that somebody else has put her up to this question, which has not
been well researched. At present, the representation of police officers in Western Australia is at an all-time high
of 22 per cent.
Ms L.L. Baker: Female?
Mrs L.M. HARVEY: With female police officers in Western Australia, we are now at an all-time high of
22 per cent. I am proud of that achievement.
POLICE — FEMALE REPRESENTATION
133.
Ms L.L. BAKER to the Minister for Police:
I have a supplementary question. I think it is probably worth telling the minister that, according to the
2015 report to which I referred, she is entirely wrong and that the percentage is 29.5 per cent, and it is
significantly lower than is the case anywhere else in the country.
Mr C.J. Barnett: Point of order, Mr Speaker.
The SPEAKER: Premier, you do not have to take a point of order. Just ask the question, member.
Ms L.L. BAKER: I certainly will, Mr Speaker.
Could the minister tell us how she has managed to let it get to that low level, which is the lowest since 2008?
Mrs L.M. HARVEY replied:
I think the member for Maylands is probably referring to the overall percentage of employees in WA Police, and
obviously there are going to be different proportions of representation between public servants and police
officers. It is improving; I know that it is improving, because I have been proactive in that space with the
Commissioner of Police. Part of the way that we have looked at improving the female participation rate within
the ranks of WA police officers has been through our marketing strategy. Members may have seen our
recruitment advertisements on television, in which we are showing policewomen out in the community
performing the role of police officers with great gusto and enjoyment. Not surprisingly, when women see women
in policing, they are inspired to take the step of applying for a position in WA Police. We are seeing more and
more female recruits, and it makes my —
Ms L.L. Baker interjected.
The SPEAKER: Member for Maylands, I call you to order for the first time.
Mrs L.M. HARVEY: In addition, we have a police executive women’s network, which is involved in mentoring
police officers to ensure that we see progression of female police officers from recruitment through graduation
and up into the executive ranks of WA Police, where they can take strategic roles in directing the organisation.
I am proud of our achievements, and I will continue to push that barrow.
BUS SERVICE — ROUTE 950
134.
Ms E. EVANGEL to the Minister for Transport:
I understand that it has been a year since the introduction of the route 950 bus service. I would appreciate it if the
minister would provide an update on the success of this service.
Mr D.C. NALDER replied:
I thank the member for that question. I have great pleasure in talking about the 950 bus service. For those who
are unaware of the 950 bus service, it is a super bus that has replaced four services. We have added
eight additional buses and close to 550 000 extra annual bus kilometres. There was a joint initiative—14.2—
between the state government and the Cities of Perth, Vincent and Stirling, the Beaufort Street bus priority plan.
The initiative is to allow buses priority at traffic signals, and it has finally completed its first full year of service.
It gives me pleasure to advise the house that, during the first 12 months of the initiative, we have netted
3.7 million boardings on this bus service. That is an increase of one million boardings, or a 39 per cent increase,
for this service over the previous routes combined. That is an average of 17 000 boardings per day. People tell
me that they do not like using the bus, so why have we created a bus service that has now seen a net increase of
39 per cent? This bus service has an increased frequency —
Several members interjected.
The SPEAKER: Member for Bassendean, I call you to order for the second time.
Mr D.C. NALDER: This initiative has been undertaken by the Public Transport Authority, and what a fantastic
initiative it is. It has done a fantastic job to get the initiative up and running. It has seen an additional eight buses
and an extra 550 000 annual bus kilometres, but it also means that during peak hour, for the convenience of
[ASSEMBLY — Wednesday, 11 March 2015]
1037
passengers, it runs down Beaufort Street every three or four minutes. People are voting with their feet and taking
up this service, and that is exactly what we want. In the Transperth 2014 passenger satisfaction monitor,
94 per cent of passengers said that they were satisfied with this service. This is an outstanding outcome, and
I congratulate the Public Transport Authority on setting up this initiative.
METRO AREA EXPRESS LIGHT RAIL — REPLACEMENT BUS SYSTEM
135.
Ms R. SAFFIOTI to the Minister for Transport:
I refer to the minister’s estimated cost of $1.2 billion for a bus system to replace the Liberal Party’s election
commitment of the MAX light rail system.
(1)
Is the $1.2 billion figure escalated?
(2)
If yes to (1), what year is it escalated to?
(3)
What is the base year for the escalation?
Mr D.C. NALDER replied:
(1)–(3) We have a preliminary analysis that suggests that we should further consider a bus service in
a dedicated lane over a light rail solution. The only difference we are talking about is whether it is metal
wheels or rubber wheels—everything else is the same. As I said yesterday, in 2008 it was part of the
Labor Party’s strategy to deliver a super bus service. We are talking about the costings. The plan we are
looking at for the MAX service, whether it be bus or light rail, is to commence in 2017–18. So, the
costing estimates are based on that time frame. We have a preliminary analysis, and we have already
said that we are going to review it. We have not said that we are not going to do a light rail. We have
said that it is my responsibility to be prudent and to ensure that I investigate to see whether I am
delivering the best possible solution for the community of Perth, and that is what I will do.
METRO AREA EXPRESS LIGHT RAIL — REPLACEMENT BUS SYSTEM
136.
Ms R. SAFFIOTI to the Minister for Transport:
I have a supplementary question. The minister said yesterday that the blowout in the Metro Area Express costing
from $2.2 billion to $2.5 billion was due to escalation, yet the minister tells us today that the time frame for the
delivery of this bus project and MAX is the same; therefore, there should have been no blowout for escalation
for the MAX.
Mr D.C. NALDER replied:
I think the member is a bit confused because the blowout was not from $2.2 billion, but I will not correct all the
numbers just now. What we are talking about is that with escalation, the cost for MAX light rail is going up to
close to $2.5 billion; that is what I have said.
Ms R. Saffioti interjected.
The SPEAKER: Member for West Swan!
Mr D.C. NALDER: We have said that we have a preliminary analysis that suggests that we could potentially do
a dedicated bus lane for around 50 per cent of the cost. That is what we have as a preliminary analysis. The onus
is now on me to validate that. Yesterday I talked about two key assumptions around this; one is capacity and the
other is the economic uplift from permanency on the stations. They are the sorts of things that I now need to
validate to see whether I can prove that up. At that point, I will need to take it to cabinet. We have to do that
work and I will undertake it because that is what a responsible minister in government does.
Ms R. Saffioti interjected.
The SPEAKER: Member for West Swan, I call you to order for the second time.
SCARBOROUGH BEACH PRECINCT — REDEVELOPMENT
137.
Mr C.D. HATTON to the Minister for Planning:
Can the minister update the house on progress on the Scarborough redevelopment project and what other
activities are occurring to activate metropolitan centres?
Mr J.H.D. DAY replied:
I thank the member for the question. Certainly, facilitating redevelopment and transformation in the Perth CBD,
in major activity centres of the Perth metropolitan area and indeed elsewhere across the state is equally important
and that is very much the approach taken by this government. The major city projects have been talked about
a lot and are playing a very important role, but, equally, the redevelopment that is being facilitated in other parts
of the metropolitan area—for example, Scarborough, as the member asked about—is also significant. We have
1038
[ASSEMBLY — Wednesday, 11 March 2015]
allocated $30 million, which, together with a similar amount of funding from the City of Stirling, will result in
substantial redevelopment of the Scarborough beachfront area and the area inland along Scarborough Beach
Road and West Coast Highway. Until recently, a draft master plan was out for public comment; that closed only
last week on 3 March. There were about 520 submissions, which will be assessed by the
Metropolitan Redevelopment Authority prior to a final decision being made about the master plan. In practical
terms, it will result in additional housing, residential development, a water playground, a park with skate
facilities, a community function centre, new cafes, restaurants, kiosks and public art, and, no doubt as part of
that, employment opportunities.
Other parts of the Perth metropolitan area have also received a lot of attention and will continue to do so.
For example, what has happened in Midland has been well canvassed, including by the Minister for Health
yesterday, with the major health precinct under development at the moment. There has been the provision of
residential development, employment development and other services and activities in the area, following on
from the decision by the previous coalition government to locate some major police facilities there. There is now
a communications centre for the state, the traffic operations centre and the forensic laboratories and centre for
WA Police, which have all had a flow-on effect on employment development in the Midland area. I mentioned
Armadale yesterday, but just to add a bit more information, the work of the MRA, preceded by what the previous
Armadale Redevelopment Authority did there, will lead to about 1 150 new residences for about 3 900 people
and will provide additional commercial, office, retail and industrial space for about 20 000 new workers in the
south east metropolitan area, so that is very important. They are some of the projects that have been undertaken
by the MRA.
Equally important are the other planning instruments available to and being used by the Department of Planning
under the Planning and Development Act. For example, in Gosnells there is an improvement plan, which I know
the member for Gosnells has an interest in and it has been on my radar for quite some time. The City of Gosnells
was very keen to have it put into effect and it was agreed to by the government in October last year. I understand
that the City of Gosnells is currently consulting landowners, which will lead to further residential, economic and
employment development in the precinct around the Gosnells train station.
The SPEAKER: Can you wind it up please, minister.
Mr J.H.D. DAY: There are other examples such as the Burswood district structure plan that has been out for
comment. Ultimately, that will lead to about 20 000 people living there. On another occasion, I might give some
other examples of regional projects in the Perth metropolitan area that I have also been focused on. I think this
question needs a couple of parts; it is a long story.
HEALTHWAY — AUSTRALIAN MEDICAL ASSOCIATION
138.
Mr R.H. COOK to the Minister for Health:
I refer to the stand-off between the minister and the Australian Medical Association, which has refused to
withdraw its nomination to the Healthway board until the minister guarantees that Healthway will be replaced by
an entity of equal independence. Will the minister today guarantee the independence of the future Healthway or
its replacement entity or is he prepared to starve these sporting and arts organisations of vital funds for clubs and
associations?
Dr K.D. HAMES replied:
That decision is yet to be made. I made it clear previously that following the Carmen issue, I had decided in
conjunction with the chair of Healthway that a change in board was required, so the Department of Health has
been preparing legislation to change the governance and the board of Healthway. That is being prepared to take
to cabinet. Since that time, of course, we have had this issue.
Several members interjected.
The SPEAKER: Members!
Dr K.D. HAMES: All the members have now stepped down, except the member representing the Australian
Medical Association. He is on leave in South America and is due back on 19 March. We have been having
conversations with the AMA.
Mr R.H. Cook: Have you talked to him?
Dr K.D. HAMES: No, I have not. I have texted him—I got through on one occasion—but I have not been able
to speak to him because he is in South America, so it has been very, very difficult. The AMA are the people. He
is the AMA representative. I have been talking to the president of the AMA and at this stage it is not prepared to
step down. The whole issue is going through the Public Sector Commission, and so through the Premier, and
between us we will make a decision, through cabinet, about exactly what the future will be.
[ASSEMBLY — Wednesday, 11 March 2015]
1039
HEALTHWAY — AUSTRALIAN MEDICAL ASSOCIATION
139.
Mr R.H. COOK to the Minister for Health:
I have a supplementary question. Last time in this place, the minister gave a guarantee that there would be an
independent entity following Healthway. Is the minister now saying today that he will not guarantee that
independence and therefore he will not be able to see the resignation of the AMA representative?
Dr K.D. HAMES replied:
It is not up to me to make that final decision on the future of Healthway, because at that time we were not
dealing with the fallout of what happened with the Public Sector Commission. I have made it clear that my
preference has been for Healthway to continue to do the same work it is doing now, but that is an issue, in light
of the Public Sector Commission investigation, that will be decided in the future.
CRIMINAL LAW AMENDMENT (HOME BURGLARY AND OTHER OFFENCES) BILL 2014
Consideration in Detail
Resumed from an earlier stage of the sitting.
Clause 3: Act amended —
Debate was interrupted after the clause had been partly considered.
Mr W.J. JOHNSTON: Just before the debate was interrupted for question time, the minister talked about
a 17-year-old who had committed 117 offences and had not been sanctioned until he had committed the fifteenth
offence. I think that is what the minister said. How many of those 117 offences were for home burglary; and, of
those home burglary offences, how many were for stealing food?
Mrs L.M. HARVEY: Member, I would need to take this question on notice as to the specifics of that.
My understanding, though, from conversations with police is that when a person has broken into a dwelling and
their intent was to procure food, generally other initiatives would be employed rather than taking those people
through the court process and charging them with an offence. I would ask the member to put the question on
notice as to the specific number of offenders who have been charged with a dwelling burglary when their
intention was to procure food, and that was all that they stole, because that would take some considerable
amount of resourcing and research to find out, and I would need some more time to find that specific answer.
The ACTING SPEAKER (Ms L.L. Baker): Before members ask any more questions, I draw their attention to
the clause that we are talking about. It is headed “Act amended”, and it states —
This Part amends The Criminal Code.
There is no general debate.
Mr W.J. JOHNSTON: Thank you very much, Madam Acting Speaker. I am just seeking clarification of the
example that the minister gave. I appreciate what the minister said about putting on notice a question about how
many times an individual who has stolen food has been charged with a home burglary offence. But that is not
what I was raising. The minister raised, in support of the passage of this provision, the example of a juvenile who
had, from memory, committed 117 offences and had not been sanctioned until he had committed 15 offences.
I am asking, in respect of the example that the minister gave—not one that I know about, but one that the
minister knows about—how many of those 117 offences were for home burglary; and, of those home burglary
offences, how many were for stealing food. It is not a particularly complex question. We want to know how that
case relates to the provisions of this bill. The minister is the one who raised this case with us, as justification for
the need to pass this bill. The minister—not me, not the member for Butler, not the member for Warnbro, and
not any other member—raised this case in the context of supporting the provision that we are debating. It cannot
possibly be a difficult question to answer. How many of those 117 offences were for home burglary; and, of
those home burglary offences, how many related to stealing food? If the minister cannot answer that question,
why did the minister raise that as an example of the matters that need to be dealt under this legislation?
Mrs L.M. HARVEY: I would like to correct the member for Cannington. It was actually a 17-year-old offender
who had committed 114 offences, of which 25 were burglaries—23 of them in dwellings—and 12 were
aggravated burglaries, and that was over a six-year period. The first period of detention was imposed upon
sentencing for the fifteenth offence. The system does not actually differentiate as to what is stolen in the course
of a dwelling burglary. The way the offence is constructed is whether there is a prima facie case to determine
that a burglary was committed. The offence is not necessarily predicated on a person stealing a thing; it is
whether there was an intent to commit the offence, and a range of other things. I would need to go back and
investigate that specific case and determine whether it was recorded if that offender was stealing food. But
1040
[ASSEMBLY — Wednesday, 11 March 2015]
I would put to the member for Cannington that often one of the excuses that people use to try to get out of having
an offence recorded or being charged with an offence is to say that they were just after food.
Mr P. Papalia: How do you know that?
The ACTING SPEAKER: Member for Warnbro!
Mrs L.M. HARVEY: Sometimes looking for food may be the issue that causes someone to break into a home.
But with respect to that offender, when we look at that offending history, with 114 offences, I expect it would be
highly unlikely that those offences would be —
Mr P. Papalia: So you do not think he was stealing any food at all at any time?
Mrs L.M. HARVEY: I did not say that, member for Warnbro. I said that I would need to go back and
investigate that and determine whether it was recorded what, if anything, was stolen.
Mr W.J. JOHNSTON: I wonder, minister, whether we should postpone the debate on this clause to enable the
minister to return with the information. It does not seem fair on the Parliament for us to be partly informed. It was
not the member for Butler and it was not the member for Warnbro who raised this issue; it was the minister.
Apparently, the minister does not have all the facts in front of her. I do not know why the minister would raise
a case when she does not have all the facts in front of her. But the minister is the one who chose to do that; no-one
else did. Minister, would it be better for us to postpone the debate on clause 3 and return to this clause after we have
dealt with all the other provisions? That is the system that is used in this house. We are not the ones who raised this
matter. The minister raised this matter. When I say “this matter”, I mean the case that the minister has brought to
our attention of this young man who between the ages of 11 and 17 offended apparently 114 times and was
sanctioned only after the fifteenth offence. Would the minister prefer that we postpone consideration of clause 3
until the minister has the facts in front of her, or is the minister happy to proceed in ignorance?
The ACTING SPEAKER: The question is that clause 3 do stand as printed.
Mr J.R. QUIGLEY: Madam Acting Speaker, a question was asked, and I was waiting for the answer.
The ACTING SPEAKER: The minister did not stand up, so I put the question. If the member for Butler wants
to say something, go ahead. The member for Cannington.
Mr W.J. JOHNSTON: The problem is that the minister comes into this place and says things and then does not
defend them, and she then asks us, in ignorance, to support her bill. I have never heard of somebody who comes
into this place and gives evidence that they do not have any knowledge of. It is just extraordinary. Imagine if the
minister had appeared in a court as an expert witness and had raised something in answer to a question from the
bar table and then was not able to answer the question—the minister would be dismissed as a witness and her
evidence would be adversely reflected upon by the presiding magistrate, judge or commissioner. That is what
happens. If people come to a court and they do not know what they are talking about, it is inevitable that adverse
reflections are made about their integrity. The minister is here in the court of public opinion. The minister raised
a matter that she says is justification for her actions, yet she does not know anything about that matter. The
minister then says that many people raise the idea that they are stealing food as a defence. How many? In what
percentage of cases that go to trial has the person used the excuse—as the minister described it—of stealing
food? Will a person who has stolen food be covered by the provisions of this bill? As I understand it, they will be
covered by the provisions of this bill. I am not saying that stealing food is an excuse. I simply want to know what
the answer to that question is. I do not understand. I am quite surprised not that the minister did not know the
answer to the question that I asked, but that the minister did not know the information that she provided to the
chamber. I understand that the minister has her mandate. But I cannot believe that the Minister for Police—on
a salary of a quarter of a million dollars—can come into the Parliament and say that she is acting to stamp down
on things that are unfair in the community, yet on something as simple as telling us the full facts of the matter
that she raised as evidence to support this bill, she cannot answer questions.
MR W.J. JOHNSTON: I move —
That clause 3 be postponed until the end of consideration in detail.
I am not sure I have to write that out, but I am doing so.
The ACTING SPEAKER (Ms L.L. Baker): Yes; member, I think you should.
Mr W.J. JOHNSTON: I do not intend to speak to the motion because I think all members know what we are
dealing with. That way the minister has the opportunity to return and inform us of the facts surrounding the case.
This is not a case I have raised or an unknown question that I have asked. For example, the minister invited me
to ask a question about the number of people who claimed that they were stealing food. I am not asking that
question. I am just asking about the matter that the minister raised—not a matter that I raised. Given that
circumstance, I think that it is only appropriate that we allow for the minister not to be embarrassed, as she is at
the moment. We do not want to put the minister on the spot and have her unable to answer a question about
[ASSEMBLY — Wednesday, 11 March 2015]
1041
information that she brought to the chamber. We want to save her from that embarrassment, so we will just delay
the consideration of clause 3 until the end of consideration in detail on this bill. That way the minister does not
have to look stupid. It would be terrible; I hate the idea of coming into this chamber and raising something and
then knowing nothing about it. That would be deeply embarrassing. A minister who did that would look stupid.
The last thing I am seeking is to make the Minister for Police look stupid. I do not have to help her do that. I do
not want to do that. I invite the minister to accept delay of consideration of this clause so she can come back into
the chamber and provide the information not that I asked for, but that she provided. The full details of this matter
can be provided so we can make a proper decision, instead of embarrassing the minister the way that is
happening at the moment. I do not want to embarrass the minister; I want to ensure that she knows what she is
talking about.
The ACTING SPEAKER: Member, we understand that you have put the motion that consideration of
clause 3 be postponed.
Division
Question put and a division taken, the Acting Speaker (Ms L.L. Baker) casting her vote with the ayes, with the
following result —
Ayes (17)
Ms L.L. Baker
Dr A.D. Buti
Mr R.H. Cook
Ms J. Farrer
Mr W.J. Johnston
Mr D.J. Kelly
Mr M. McGowan
Mr M.P. Murray
Mr P. Papalia
Mr J.R. Quigley
Ms M.M. Quirk
Mrs M.H. Roberts
Ms R. Saffioti
Mr C.J. Tallentire
Mr P.C. Tinley
Mr P.B. Watson
Mr D.A. Templeman (Teller)
Noes (35)
Mr P. Abetz
Mr F.A. Alban
Mr C.J. Barnett
Mr I.C. Blayney
Mr I.M. Britza
Mr G.M. Castrilli
Mr V.A. Catania
Mr M.J. Cowper
Ms M.J. Davies
Mr J.H.D. Day
Ms W.M. Duncan
Ms E. Evangel
Mrs G.J. Godfrey
Mr B.J. Grylls
Dr K.D. Hames
Mrs L.M. Harvey
Mr A.P. Jacob
Dr G.G. Jacobs
Mr R.F. Johnson
Mr S.K. L’Estrange
Mr R.S. Love
Mr W.R. Marmion
Mr J.E. McGrath
Ms L. Mettam
Mr P.T. Miles
Ms A.R. Mitchell
Mr N.W. Morton
Dr M.D. Nahan
Mr D.C. Nalder
Mr J. Norberger
Mr D.T. Redman
Mr A.J. Simpson
Mr M.H. Taylor
Mr T.K. Waldron
Mr A. Krsticevic (Teller)
Pairs
Mr F.M. Logan
Mr B.S. Wyatt
Mr C.D. Hatton
Mr J.M. Francis
Question thus negatived.
Mr W.J. JOHNSTON: I wonder with respect to the case the minister quoted, was the person a ward of the state
during the time he committed the series of offences that she referred to? During the six years, when this person
was between the ages of 11 and 17 years, and apparently committed 114 offences, was that person a ward of the
state?
Mrs L.M. HARVEY: If the member for Cannington wants to know the exact specifics of everything to do with
that case, I would need to go through every single case file. I request that the member put that question on notice.
The ACTING SPEAKER: Members, I need to say that you have laboured this point and have been given a fair
bit of latitude to do so. At this point, it is very hard to see the relevance of that, and I encourage members to
move on. Clearly, the minister is not going to answer.
Mr W.J. JOHNSTON: Madam Acting Speaker, I agree that it is very hard to see the relevance of the matter
that the minister raised, but, of course, it was the minister who raised the irrelevant matter.
The ACTING SPEAKER: That does not change my comment, member.
Mr W.J. JOHNSTON: I agree. I understand exactly what the Acting Speaker is saying. I do not understand
how the minister can come into this chamber, on clause 3, and raise an irrelevant matter. I agree with the
Acting Speaker. I cannot put on notice a question about this matter, because it would be a question about an
individual case. I do not believe it would even be a matter that is under the control of the Minister for Police.
I think it would more likely be a matter for the Minister for Child Protection, particularly if the person was
a ward of the state. The point I keep making is that it was not me who raised any of these matters; the Minister
for Police raised them. The Minister for Police came into the chamber and said: in respect of clause 3, one of the
reasons you should vote for this is that there is this guy, who for six years, between the ages of 11 and 17 years,
committed 114 offences. All I want to do is clarify matters the Minister for Police raised. These are not matters
1042
[ASSEMBLY — Wednesday, 11 March 2015]
that I raised in any way in any part of this debate. These matters were raised by the Minister for Police. If the
Minister for Police wants to sit in the chamber and say, “I don’t know the answer to any of the questions about
this person”, that is great; that is not a problem for me. I understand that is exactly what the minister said in
respect of my last question.
That then goes to the heart of the problem. Why did the minister raise a matter that she does not know anything
about, in asking the opposition to support clause 3?
The ACTING SPEAKER: That is not relevant to clause 3. The member needs to ask a question that is relevant
to clause 3.
Mr W.J. JOHNSTON: Okay. The question is: can the minister name any example—any case, in any court of
Western Australia—that is relevant to the matters that are raised in clause 3?
Mr P. PAPALIA: This clause reads —
This Part amends The Criminal Code.
The government is changing the Criminal Code, the minister’s justification for which was presented in the
second reading speech and in numerous assertions in the public domain. I want to ask the minister, specifically,
because she has spoken on quite a few occasions today about the need to reflect community concern as being
part of the minister’s justification. However, she said in her second reading speech —
In making these amendments, the government is determined to ensure that burglars who commit
numerous home invasions, which can involve serious violent offences, are incarcerated for longer
periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to
reflect community abhorrence of such offending.
We have heard the minister refer repeatedly to the last component of the reasoning. I want to go to the first
component and I want to know: does the minister have any evidence gathered in the course of preparing this
legislation that confirms or indicates that this legislation will deter such offenders?
Mrs L.M. HARVEY: As I have mentioned previously, it is very difficult to determine the impact of legislation
and its deterrence effect on criminal offending. I referred to that earlier when I was speaking about the difficulty
in predicting the impact that this legislation would have on prisoner bed numbers required in our detention
facilities, which is why I put a caveat over that information, with a view that it was based on current people
incarcerated in our institutions and an extrapolation, if you like, of the sentencing profiles to fit with the
sentencing regime should they be subject to it. It is very difficult to determine when legislation and penalties
would act as a deterrent, but our intention is that this legislation will. Certainly, when we look at assaults against
police officers and the mandatory penalties that have been imposed since that legislation has been implemented,
we have started to see a reduction in those serious assaults against police officers.
Mr P. PAPALIA: I am pursuing the same line of questioning. In the course of preparing this legislation, was
any research paper, academic study or independent analysis by any authority found that dealt with the threestrikes legislation that indicated that this legislation will deter offenders if the government amended the act in the
way that is proposed?
Mrs L.M. Harvey: I have previously answered the question.
Mr P. Papalia: Can you say just yes or no?
Mrs L.M. HARVEY: As I have said previously, there has not been a report or an inquiry or anything of that
nature that I could table to satisfy the member for Warnbro. Indeed, I do not think that there is a way to satisfy
the member for Warnbro in getting past clause 3 of the act amended “This Part amends the Criminal Code.” That
said, with respect to pulling together the drafting instructions for this legislation already, I articulated the way
that we have done the research; it is on the record and I believe the member was in the house when I spoke to it
earlier.
Mr P. PAPALIA: What the minister is saying is that the minister’s department has spent a lot of time, and
I imagine a lot of money in kind, in an effort to not even bother looking at the one referenced document that
exists in the world—the most specific, the most credible analysis of this legislation, which the minister is
currently amending—which was done by two esteemed Western Australian professors, one of whom is the
current Inspector of Custodial Services, the other one who is currently at the University of Western Australia.
The minister is telling me that in all of the research and time and effort and money and hours that were dedicated
to preparing this legislation, which makes a fundamental change to the law—to deprive the judiciary of
discretion in these matters, and change the three-strikes legislation—the minister did not even bother looking at
the “Mandatory Sentencing in Western Australia & the Impact on Aboriginal Youth” paper, prepared by
Professors Neil Morgan and Harry Blagg in December 2001. Will the minister just say, “No, we didn’t bother.
No, we didn’t do it. Sorry, it didn’t occur to us to look at a study of the legislation which is currently enforced
[ASSEMBLY — Wednesday, 11 March 2015]
1043
and which we are amending and which, amongst other things, actually identified that there is no evidence to
suggest that it works”? Is the minister saying that she did not even look at the report before recommending this
approach that the government is actually pursuing and changing to become even more draconian and which
approach will have more of a negative detrimental impact on a minority? Did the people who did the research on
the minister’s behalf not look at the report?
Mrs L.M. HARVEY: No, that is not what I am saying. I said that we considered a range of reports, we went
into a range of cases and we looked at sentencing outcomes for specific offences. I have already canvassed the
research effort previously.
Mr P. Papalia: Did your researchers read that report?
Mrs L.M. HARVEY: That report is being considered as part of putting together this legislation, yes, along with
a range of other reports, including reports on sentencing outcomes and reports available on the Department of the
Attorney General’s website. We have —
Mr P. Papalia interjected.
Mrs L.M. HARVEY: I am sorry, am I on my feet?
The ACTING SPEAKER: Member for Warnbro!
Mrs L.M. HARVEY: I am trying to articulate that we put a lot of effort across WA Police, the State Solicitor’s
Office, the Department of the Attorney General, the office of the Minister for Corrective Services and the
Department of Corrective Services in formulating and putting together the policy around this piece of legislation.
It is a policy and legislation that I have carriage of. The legislation is here and we believe that this is the way to
address part of the problem of recidivist home burglars and violent home invaders; that is why it is here.
Mr P. PAPALIA: I just want to read into the record, from page 6 of the report to which I refer, the
“Mandatory Sentencing in Western Australia & the Impact on Aboriginal Youth.” One of the key findings was
—
•
There is no valid evidence to sustain claims that the mandatory three strikes home burglary laws
have served to reduce recidivism rates.
If the minister had said that she had assessed that, that it was taken into account and the minister had applied
changes based on her own evidence that suggested there will be a change for the better in reducing recidivism as
a consequence of those changes, I would have accepted what the minister said. I do not think the minister has
read the report. I do not see any suggestion from anybody conducting the research that they have read the report
either, otherwise they would not have made these suggestions to the minister.
Mrs L.M. HARVEY: I think it has been made really clear that the reason that we have introduced the legislation
to change the counting rules is that mandatory penalties for recidivist home burglars was not working at the time
that that report was made. In 2001, the “three-strikes, you are in” supposed mandatory penalty system that was
being assessed in the report that the member is referring to was not working as a deterrent. It was not working
with respect to sentencing people consistent with community expectations. Now here we are 14 years down the
track, and we are correcting the counting mechanism for mandatory penalties for recidivist home burglars
because the previous regime was not working. The member for Warnbro is quite right: that report says that it
does not act as a deterrent and it does not work, and that is why we are fixing it.
Mrs M.H. ROBERTS: I was very interested in the questions put by the member for Cannington a short while
ago. Without repeating those questions, because I know Madam Acting Speaker (Ms L.L. Baker) would like us
to expedite matters, it was quite clear from the minister’s response that despite citing a particular case as an
example of why this legislation was necessary, she was unable to answer any of the member for Cannington’s
questions about the case that she had cited. We had a division because we thought that since the minister could
not answer the questions about a case that she had introduced into the discussion, the appropriate thing to do
would be to postpone the clause so that the minister could acquaint herself properly with the case and answer the
questions put by the member for Cannington. As the house knows, we do not have the numbers in here so we
cannot force the minister to postpone the clause and provide answers in this house. If she does not know the
answers, the minister said that she would need to look up all the details and fully acquaint herself with it and
whatever. I would have thought that was something that she might have done before now. But given that she has
not, the minister suggested that the member for Cannington put his questions on notice and she would then,
presumably, answer them. I want the minister to clarify whether the member for Cannington should direct those
questions on notice to the Minister for Police—I will encourage him to put them on notice because I, too, would
like to see the answers—or to the minister representing the Attorney General.
Mrs L.M. HARVEY: If the member for Cannington chose to put those questions on notice, he would need to
put them on notice to the Attorney General in the other place because the detail that is being requested as to what
had been stolen et cetera could be found only by going through the specific judgements in each specific offence
1044
[ASSEMBLY — Wednesday, 11 March 2015]
that had been brought up. That would presumably be recorded in the DOTAG system. If the member thinks it is
relevant, bearing in mind —
Mrs M.H. Roberts: Is the minister saying that the statement of facts would not be in the police records?
Mrs L.M. HARVEY: The statement of facts could be in police records. The member for Cannington could put
it to me as Minister for Police if he chose to. Given that this offender had his first period of detention on the
fifteenth offence, I suggest that it is quite likely that previous appearances before the magistrate that had not
resulted in a custodial sentence would likely be recorded by the court. That is quite often where we find that
other diversionary tactics have been instituted because there are other factors at play in that young person’s life.
I hasten to add, member for Midland, that for juvenile offenders who have not yet reached the age of 16, all the
normal diversionary tactics that could be applied by the court would apply and be available to the
Children’s Court in assessing young offenders, regardless.
Mrs M.H. ROBERTS: By way of clarification: in response to my specific question on whether the member for
Cannington’s questions should be directed to the Minister for Police or the minister representing the
Attorney General in this place, the minister’s advice was that the member for Cannington should address his
questions to the Attorney General in the other place. The minister has advised the house that she is now the
minister representing the Attorney General in this place. If that is the case, I put it to the minister that the
questions are appropriately addressed in this house to the minister representing the Attorney General. If the
minister is unable to answer those questions, she would get advice from the Attorney General to provide the
answer.
Mrs L.M. HARVEY: I think the member for Midland well knows that questions are ordinarily put to the
minister who has responsibility for a portfolio. I would suggest that if the member for Cannington wants to get
the information contained in the police briefing files, that question be put to me as Minister for Police because
I can expedite sourcing an answer to that, or to the Attorney General. It depends on how full and robust an
answer he would prefer. That is how it is traditionally done.
Mrs M.H. Roberts: You are the minister representing the Attorney General.
Mrs L.M. Harvey: You know how it works.
Mrs M.H. ROBERTS: I am not going to put up with that answer. The minister keeps saying to me, “You know
how it works.” That is the only true thing that she has said—I do know how it works. The minister has got it
wrong. The minister has never sat in opposition; she clearly does not know what goes on. When representing
a minister in this house, the questions are in the format, “My question is to the minister representing the
Attorney General.” It is the Minister for Police who provides the answer in this house.
Mr J.R. QUIGLEY: I have a number of questions relating to case law. I will just ask them because I want to
short-circuit this. I could do it in each individual clause, but we would be here until Wednesday week.
My proposed amendment is bundled up into one. I will come to that in a moment —
The ACTING SPEAKER: Member, before you start: if you choose to go down this path, that is fine, but we
need to move off clause 3, eventually. If you want to bring up those cases in other sections, that is fine, too.
Mr J.R. QUIGLEY: Good. I will do it now because this goes to the policy behind changing the act.
I am not confronting the minister. I want to quickly dispose of this case, if I can. The minister cited an example
to illustrate the need for this legislation—correct me if I am wrong, minister—of a person who had 14 offences
and was not taken into custody or did not receive a custodial term until after the fifteenth offence; is that correct?
Mrs L.M. Harvey: Yes, and it was over a six-year period.
Mr J.R. QUIGLEY: Does the minister know the age of the offender at the time, up until the fifteenth offence?
Does the minister know his age at the time that he committed the fourteenth offence?
Mrs L.M. Harvey: I think the member understands what I have said about that. I am not sure what the member
is getting at. I do not know his age at every single specific offence and every charge that was brought before the
court. As I said, no, I have not got his detailed offender history in front of me, just a summary of his case and the
outcome, which is what is relevant to the legislation.
Mr J.R. QUIGLEY: I appreciate that. So that I can move on, at the time of the fourteenth offence—I am not
criticising the minister and I will not probe her—does the minister know for sure how old the offender was?
Mrs L.M. Harvey: No, I do not have that information.
Mr J.R. QUIGLEY: The new legislation does not kick in until an offender is 16 years of age; is that correct?
Mrs L.M. Harvey: That is correct, yes.
[ASSEMBLY — Wednesday, 11 March 2015]
1045
Mr J.R. QUIGLEY: This case that is now raised—I am not being critical—might be irrelevant. Up until the
offender received his first custodial term, if a lot of the offences were committed while he was under the age of
16, this case might be irrelevant because the 14 offences would not even kick in under the new legislation; is that
not right?
Mrs L.M. Harvey: It has been included as an example, member for Butler, because it is relevant.
Mr J.R. QUIGLEY: How is it relevant if the fourteenth offence was committed when he was 15 and a half?
Under the new legislation, he still would not be incarcerated at the fourteenth offence, if the fourteenth offence
was committed under the age of 16, would he?
Mrs L.M. Harvey: No, it does not apply to children under the age of 16.
Mr J.R. QUIGLEY: If the offender the minister cited was under the age of 16 at the time of his fourteenth
offence, there would have been no complaint because, under the new legislation, he still would not be
incarcerated; is that correct? I am postulating: if the offender was 15 and a half at the time of the fourteenth
offence, under the amending bill he still would not be incarcerated, would he?
Mrs L.M. HARVEY: Once we get past clause 3 we can go into this in more detail, but this amendment bill
makes it pretty clear that the three-year period of detention for certain offences committed in the course of
a burglary or the custodial sentence for recidivist home burglars kicks in for young offenders who have reached
the age of 16, but not 18.
Mr J.R. QUIGLEY: So if this offender to whom the minister has referred, at the time of this fourteenth
offence—that is the last offence before the court eventually incarcerates him—had not yet attained the age of 16,
he would not be incarcerated even under the new legislation? There is no trick. That is correct, is it not?
Mrs L.M. Harvey: He would not be subject to the penalties under the new legislation, but previous legislation
with respect to these matters would still apply.
Mr J.R. QUIGLEY: Yes, but he would not necessarily be incarcerated under that legislation or under the new
legislation because he had not attained the age of 16.
Mrs L.M. Harvey: It is hypothetical. The example is when he is 17, and under our legislation, as a 17-year-old,
he would be looking at a mandatory penalty for his offences.
Mr J.R. QUIGLEY: But the minister is not saying he was 17 at the time of the fourteenth offence, is she?
Mrs L.M. Harvey: I am saying he is a 17-year-old offender with 114 offences behind him: 25 of them for
burglary; 23 for home burglary—12 of them aggravated. He falls into our remit, member for Butler.
Mr J.R. QUIGLEY: But he does not fall in until after he turns 16; correct?
Mrs L.M. Harvey: Correct.
Mr J.R. QUIGLEY: If his 114 offences occurred before he was 16—we do not know, but I am postulating—
even under the new legislation he would not be incarcerated necessarily?
Mrs L.M. Harvey: If he was 17, he would be subject to our legislation.
Mr J.R. QUIGLEY: Was he 17?
Mrs L.M. Harvey: As I said, I do not have the entire offending profile of this offender to discuss the ins and
outs of it with the member.
Mr J.R. QUIGLEY: So the minister does not know. We could say that that case —
Mrs L.M. Harvey: The member can speculate as he sees fit.
Mr J.R. QUIGLEY: Now can I turn to another case, please?
Mrs L.M. Harvey: Apparently.
Mr J.R. QUIGLEY: On 23 April 2012 an opinion piece was published in The West Australian under the by-line
of Karl O’Callaghan, and he wrote “Loopholes let young offenders off the hook”. I will just wait until the
minister’s assistant gets the article.
Mrs L.M. Harvey: She is not looking for that article; we are waiting for you to finish your question on clause 3.
Mr J.R. QUIGLEY: This is on clause 3, and there are quite a few more questions, thank you. I quote
Dr O’Callaghan —
The documents provided to me referred to juvenile offenders—some as young as 14—who had between
50 and 114 court charges, many for serious offences. These include multiple aggravated burglaries,
robberies, assault, vehicle theft and serious driving offences. In many cases actual detention has not
been imposed before the child has committed 50 or 60 offences.
1046
[ASSEMBLY — Wednesday, 11 March 2015]
My question is relevant to clause 3 because it goes to the policy of the need to amend the Criminal Code. Under
the Criminal Law Amendment (Home Burglary and Other Offences) Bill 2014 that person would not necessarily
be incarcerated either, unless they had attained the age of 16. That is correct, is it not?
Mrs L.M. Harvey: I believe so. Perhaps the member should finish the question, so that I understand the context
of what he is actually asking.
Mr J.R. QUIGLEY: Sure; I am sorry, it is just me, and I apologise. Dr O’Callaghan wrote an opinion piece that
reads —
The documents provided to me referred to juvenile offenders—some as young as 14—who had between
50 and —
Coincidentally —
114 court charges, many for serious offences. These include multiple aggravated burglaries, robberies,
assault, vehicle theft and serious driving offences. In many cases actual detention has not been imposed
before the child has committed 50 or 60 offences.
Mr P. PAPALIA: I am enthralled.
The ACTING SPEAKER: I can see that.
Mr P. PAPALIA: I would very much like to hear some more from the member for Butler.
Mr J.R. QUIGLEY: My question is: it is true, is it not, that under the new bill there will not be a necessity to
impose offences necessarily for those children as young as 14 until they hit 16? Is that not correct?
Mrs L.M. HARVEY: There are still mandatory penalties in the existing regime for offenders under the age of
16. This amendment does not propose to change the counting laws for that cohort of offenders; it only changes
the counting rules for the offenders who are between 16 and 18 years old and for adult offenders. In concert with
the amendment bill before the chamber now is a review of the Young Offenders Act, which the Minister for
Corrective Services has the carriage of. I expect that some of those anomalous scenarios in the Young Offenders
Act will be addressed as part of his legislative reform.
Mr J.R. QUIGLEY: I am sorry to persevere, but I must.
The ACTING SPEAKER: Go ahead, member for Butler.
Mr J.R. QUIGLEY: Thank you, Madam Acting Speaker.
Nonetheless, the loophole to which the commissioner was referring was the counting laws; that is, that people
could aggregate charges onto one appearance day and not be incarcerated. That is still the case when a person is
under the age of 16, is it not?
Mrs L.M. HARVEY: It sounds like the member for Butler is angling towards wanting us to change the counting
rules that sit within the existing Young Offenders Act. I put to the member that he should put that view in a letter
to the Minister for Corrective Services, who has carriage of dealing with the Young Offenders Act and how the
counting rules and mandatory penalties apply within that regime.
Mr J.R. QUIGLEY: The minister has been unable to answer that question about those counting laws. Instead of
answering the question, the minister just went on to make an assumption about what I might think. The minister
has been unable to answer that. Now we will go on to the next matter about which the Commissioner of Police
wrote. I hope the commissioner is on the other end of that text message; he might be able to help the minister.
Mrs L.M. Harvey: I am reading the article.
Mr J.R. QUIGLEY: The Commissioner of Police wrote —
As I write I am looking at the record of a 15-year-old who has 13 aggravated burglary convictions. In
each case he has been sentenced to an intensive youth supervision order. It is not until much later in his
offending that the court imposes a conditional release order.
That can still be the case under the new bill, can it not? This bill does not change what the commissioner
identifies as a loophole, does it?
Mrs L.M. Harvey: I think I have already been very clear that this amending legislation applies only to 16 to
18-year-olds.
Mr J.R. QUIGLEY: The minister said that part of the policy considerations behind bringing in amendments to
the Criminal Code, clause 3, was the deterrents and asserted that since the amendments were made to sections
297 and 318 of the Criminal Code, there has been a reduction in the number of assaults on public officers. I am
now reading from table 5 of the 2013 report of the Western Australia Police Union of Workers, which the
minister has no doubt read. She would have had the advantage of reading that.
Mrs L.M. Harvey: Absolutely.
[ASSEMBLY — Wednesday, 11 March 2015]
1047
Mr J.R. QUIGLEY: It states that in 2010, the number of assaults on public officers statewide was 698; in 2011,
there was a reduction to 627; in the next year, 2012, there was an increase to 736. Extrapolating that into
percentages, in the first year after the imposition of mandatory sentencing laws, the police union reported
a 10 per cent decrease in assaults on public officers, which is what the government was trying to achieve.
However, by the second year, there had been a 17.4 per cent increase in the number of assaults on public
officers, and by the third year a further 5.4 per cent increase in the number of assaults on public officers. How
does the minister assert this afternoon that those mandatory sentencing laws have seen a reduction in the number
of assaults on public officers or does she say that the police union’s chart is wrong?
Mrs L.M. HARVEY: Member for Butler, the Director of Public Prosecutions has made some comments on
those figures in an analysis of the police union report. The claim was based on a slight increase in the total
number of assaults. There were 892 in the third year following the passage of the mandatory sentencing
amendments as compared with the second year when 850 were recorded. There has, however, been an overall
33 per cent reduction in the number of assaults on public officers, not limited to police officers, over four years
from 1 032 per annum to 892. That is the basis upon which we have said the number of assaults on
public officers has reduced as a result of that legislative reform and the mandatory penalties.
Mr J.R. QUIGLEY: Are those figures published by the department? Are they available for scrutiny? May I see
them?
Mrs L.M. Harvey: It is in the “Statutory Review: Operation and Effectiveness of the 2009 Amendments to
Sections 297 and 318 Criminal Code”.
Mr J.R. QUIGLEY: I have that before me. The statutory review concluded —
With the exception of WA Police and the ODPP, the submissions were generally lacking in detail,
reflecting the relatively short time since the amendments commenced operation, and this has
constrained the review. It is important to bear in mind that correlation is not causation and it should be
noted that stakeholders expressed divergent views on the effectiveness of the 2009 amendments. As
noted above, the statistics gathered by the Department —
That is, the Department of the Attorney General —
would tend to support the proposition that assaults on public officers have decreased as a result of the
2009 amendments, yet they do not prove that this is the case.
The review notes —
... the Police Commissioner’s suggestion that ‘[t]o determine if the legislation is achieving its intended
objectives and meeting community expectations, it is likely that a formal longer term study and
evaluation will be required’ has considerable merit.
The Commissioner of Police’s submission was that a longer-term study was required to determine whether any
fluctuations in the number were as a result of the legislation. Does the minister accept the commissioner’s
submission?
Mrs L.M. HARVEY: I am pleased that the member for Butler has raised this issue, because when implementing
a new legislative regime such as this we need to give it time to bed down so that we can examine trends. One of
the important aspects of that mandatory penalty for assaulting public officers was that prior to that legislation
being introduced into Parliament, there was an assault public officer offence, but we introduced the offence of
assaulting a public officer in prescribed circumstances. We need to look at the trends in those two offences over
time given that a new offence was created when that legislation was proclaimed. We need to look at the longerterm trend and I am very interested to examine that data. Obviously, we are a bit off topic here, but it is about
mandatory penalties.
Mr J.R. QUIGLEY: I agree with both the minister and the Commissioner of Police that a longer-term study is
required. The minister understands that we will not be opposing this legislation.
Mrs L.M. Harvey: I understand that the member is talking against it and he has talked about being ideologically
opposed to it but he will not vote against it.
Mr J.R. QUIGLEY: The Leader of the Government in the house said that it is proper that the opposition
properly scrutinise such important legislation. I have not spoken against the legislation. I am just scrutinising it
as I was invoked to do by no less authority than the manager of government business in the chamber.
The ACTING SPEAKER: I am not hearing the minister say anything else, member for Butler, but you need to
ask a question that relates to clause 3, not make statements about the house.
Mr J.R. QUIGLEY: It is just that a statement was made that said I was speaking against the bill, and I would
not like that to be on the record. I was doing no more than my sworn duty as an opposition member, which is to
scrutinise and not necessarily to oppose.
1048
[ASSEMBLY — Wednesday, 11 March 2015]
I have a question that goes to the very policy of the legislation. On 2 March 2014, under a headline “Judge slams
mandatory sentencing”, the then District Court Chief Judge Peter Martino—I pause. We all celebrate that last
week he was elevated to Supreme Court judge. That is why I said he is the former Chief Judge of the
District Court; it was not because any ill has befallen him, but because good fortune has come his way. The
former Chief Judge of the District Court —
Mrs L.M. Harvey: I think he is still in there to mid-April, but he is expecting a promotion in the near future.
Mr J.R. QUIGLEY: It has been announced and approved by cabinet.
Mrs L.M. Harvey: It has been announced but he is still in the role he was in when that article was written.
Mr J.R. QUIGLEY: I thank the minister. I am glad that she is so particular as to accuracy because I would like
her to help me with this, given that she said that she is representing the Attorney General. The articles states —
District Court Chief Judge Peter Martino told a recent Law Society of WA event that any reduction in
sentencing discretion “increases injustice, rather than decreases”.
…
“Experience has shown rigidity increases, rather than decreases, injustice.”
…
“Mandatory sentencing applied that way can mean the law is not applied equally and transparently to all
members ...
He was referring to when the police had the discretion. I come to the point of my question. The article
continues —
Attorney-General Michael Mischin acknowledged that “the risk of injustice is increased by rigidity” ...
As the minister is the spokeswoman for the Attorney General, I ask: What are the injustices that we risk
increasing by this bill? What are the injustices that the Attorney General was referring to when he said “the risk
of injustice is increased by rigidity”? What are those injustices as the minister or the Attorney General sees them
that are increasing?
Mrs L.M. HARVEY: I think the problem with that article is that the injustices were not articulated. I have not
specifically been told what those injustices may be. Perhaps the member needs to ask the authors of the article
what the perceived injustices are because they have not been articulated to me.
Mr J.R. QUIGLEY: I was not quoting the author of the article; I was quoting the Attorney General for
Western Australia with whom the minister said she collaborated closely during the preparation of this bill.
Not the author of the article, not Chief Judge Peter Martino but Hon Michael Mischin, the Attorney General for
Western Australia, said that the risk of injustice is increased by the rigidity of mandatory sentencing. What risks
of injustice does the minister see will be increased?
Mrs L.M. HARVEY: The member for Butler is quite right. My understanding is that many members of
Parliament and pre-eminent people address many collectives—young lawyers, for example, and the Law Society
of Western Australia—and make a range of comments on mandatory penalties. I do not think this is the place to
necessarily go into the specific circumstances of what gets said in those forums. I think the member for Butler
will find in the article that he is referring to that the Attorney General goes on to say that he stands by the state
government’s legislation and the state government’s policy on mandatory penalties. I think that is the important
sentence to note in that article. The Attorney General, while having a considered opinion on these matters,
supports the legislation and stands by it.
Mr J.R. QUIGLEY: As does the Labor Party, but that is not the point. The Attorney General goes on to say that
he stands by the current mandatory sentencing laws. We are all at one on that. We are just trying to identify what
injustices we risk with this legislation. I might be a bit short-sighted and not see all of the injustices.
The Attorney General says, “Yes, we are risking some injustices. We are going to support the legislation despite
some injustice.” This is not the author of the article. This is not a speech to a law society. This is the
Attorney General’s public comment, saying, “Community, I am standing by this legislation but I recognise it
might cause injustice.” I just want to find out from the government and the minister as the spokesperson for the
person who said this, what are those injustices we are risking? I want some examples of it.
Mrs L.M. HARVEY: I think the member for Butler needs to put the Attorney General’s comments in that
article in context because he goes on to say —
“There is a role for such sentences in appropriate circumstances, particularly if the trend of sentencing
by the courts fails to reflect community expectations and the courts do not respond to Parliament’s
attempts to change sentencing practices by way of the few strategies available to it, such as increasing
maximum terms”, he said.
[ASSEMBLY — Wednesday, 11 March 2015]
1049
The member needs to look at his comments and quote him in context. It was a relatively long article. He made
several comments. He stands by the legislation; he is the co-author of it.
Mr J.R. QUIGLEY: Yes, I understand that he is the co-author of it and I understand that he supports it but there
is a price to be paid and he acknowledges that. I do not want to raise the ire of Madam Acting Speaker but,
equally, on the Yin and the Yang, I do not want to be seen to be quoting the Attorney General out of context so
let us go through exactly what he said.
Point of Order
Mr J.H.D. DAY: I think the house has been very tolerant. We are debating clause 3, which is simply making
a statement about which act of Parliament is amended. We had the opportunity for a wideranging debate during
the second reading stage. I also point out to the member for Butler that we are yet to get to the substance of the
bill and the clauses that have the real operative effect. I would have thought that some of the issues that he is
raising, while they are important, could be much better raised at a later stage of consideration in detail.
The ACTING SPEAKER (Ms L.L. Baker): Leader of the House, you are quite right in your comments.
However, the member for Butler did canvas that with me when he started and suggested that we either deal with
them now or deal with them later in consideration in detail. I somewhat hopefully let him go ahead.
Debate Resumed
Mr J.R. QUIGLEY: Otherwise, I would have to go through each one of these time and again. That is what
I want to avoid.
Let us go right through this. The Attorney General said that —
“the risk of injustice is increased by rigidity”, and high-profile campaigns based on particular cases did
not enable a measured consideration of sentencing.
But Hon Michael Mischin stood by the state’s current mandatory sentencing laws. He said —
“There is a role for such sentences in appropriate circumstances, particularly if the trend of sentencing
by the courts fails to reflect community expectations and the courts do not respond to Parliament’s
attempts to change sentencing practices by way of a few strategies available to it, such as increasing
maximum terms,” …
“As to its effectiveness, there has been a one-third reduction in the number of assaults on police
following the introduction of mandatory minimum terms of imprisonment for doing them bodily harm.
“There appears to have been a positive change in the way potential troublemakers deal with police.”
Mr Mischin said the Government planned to introduce stronger penalties for violent home invasions
and burglars “very soon” but “no other categories of offences are presently being considered” for
mandatory sentencing.
I did not want the minister to think that I was trying to take our esteemed Attorney General out of context but he
says there is a price to be paid; that is, by imposing a mandatory regime, we increase the risk of injustice. Does
the minister agree with that?
Mrs L.M. HARVEY: The reason we are introducing this legislation is that the victims of crime in these
circumstances, their relatives and their communities feel that injustice has been perpetrated on them by the fact
that offenders are not receiving the appropriate consequence for their actions. That is what this legislation and
this policy are designed to address and that is why the government has brought it to this place. It is a balance,
and our balance errs on the side of victims and ensuring there are harsh consequences for offenders. That is the
policy initiative.
Mr J.R. QUIGLEY: Is there a risk of injustice in a rigid system, as the Attorney General suggests?
Mrs L.M. HARVEY: The Attorney General’s words are his words. I support this legislation. There is a risk
with any new legislative framework, member for Butler, but it is a risk the government is clearly willing to take.
Debate interrupted, pursuant to standing orders.
[Continued on page 1072.]
ENVIRONMENTAL PROTECTION (CLEARING OF NATIVE VEGETATION) AMENDMENT
REGULATIONS (NO. 2) 2013 — DISALLOWANCE
Motion
MR C.J. TALLENTIRE (Gosnells) [4.02 pm]: I move —
That the Environmental Protection (Clearing of Native Vegetation) Amendment Regulations (No. 2)
2013 under the Environmental Protection Act 1986, a copy of which was laid upon the table of the
house on Tuesday, 18 February 2014, be hereby disallowed.
1050
[ASSEMBLY — Wednesday, 11 March 2015]
It is important to note what the content of those regulatory changes involves. It involves permission for property
owners to destroy five hectares of native vegetation per year per property and to destroy native vegetation if it
can be claimed that that vegetation is up to 20 years old. The government would argue that it is a change of
relatively minor proportions because previously the arrangement was that two hectares per property could be
cleared per year without the need for a permit and that it could be claimed that vegetation to be destroyed was
regrowth if it was up to 10 years old. However, I would say that in fact this is a very serious step when it comes
to the conservation of biodiversity in Western Australia. We all know that native vegetation is the most accurate
surrogate as an indicator of how our biodiversity is performing—that is, what sort of condition it is in. If we lose
native vegetation, we lose habitat and we lose species. We lose habitat for those species and our natural heritage
is put under threat. I do not think this change has great community support at all.
I know it came from the previous Minister for Environment attending a gathering in Esperance and being asked
by some farmers in that area what he would do about land clearing controls. There was a lot of talk in the air
about a gentleman who went to prison for a while, not because he was guilty of illegal land clearing, but because
he defied a Supreme Court order. There was a lot of heat, but nevertheless the previous
Minister for Environment, who is now Minister for Mines and Petroleum, said the government would do
something. When the current Minister for Environment came in, he looked to a means of fulfilling that election
promise. It was such a poor election promise from a biodiversity and conservation perspective, because what
does it mean? It means that there is the option for people to legitimately apply for a permit to destroy native
vegetation. We have the statistics on that; we know how many hectares of native vegetation are destroyed each
year through the planning process.
My latest question on notice on this point shows that since the Barnett government came to power in September
2008, there has been the destruction of probably well over 100 000 hectares through the permitting process
alone. My estimate would in fact be that we are closer to 120 000 hectares just due to the permitting arrangement
alone. I point to question on notice 1234, which has some statistics supporting that point. That is the destruction
of biodiversity through the permitting process. Then of course there is the illegal clearing that goes on. We do
not have a very good estimate of how much native vegetation is destroyed through illegal clearing. That is
something we can work on. We can get a figure through remote sensing. Through various satellite monitoring
systems that have been interpreted it can be worked out whether there has been a net loss or a net gain of native
vegetation cover. However, I will come to this point a bit more. We are not doing that job of remote sensing and
the interpretation of it; we do not have those statistics.
The two categories of land clearing are the permit system and unauthorised clearing. Then there is the amount of
vegetation being destroyed through these exemptions. As I have just outlined, the government has dramatically
increased the scale of those exceptions. When we have debated this previously, the minister has said these
property owners are people who have often had the property in the family for many years and they can be trusted
to do the right thing and look after their properties. In many instances that is absolutely the case, bearing in mind,
of course, that damage was perhaps done by previous generations or years ago. We also have to bear in mind that
the destruction that occurs on one property may not have any damaging, deleterious impacts on that property. It
is likely to be on a property further down in the catchment that the damage will occur. This idea that people will
not damage their property does not really apply, because we are not talking at a property-to-property scale; we
are talking a catchment scale. Someone who clears higher up in a catchment could cause serious land
degradation problems further down the catchment. The minister’s idea that there is a nice check in the system
because people actually care about their own land does not really work. People who go forth and destroy, as they
are entitled to do now, five hectares per year are not being accounted for in any way. There are no statistics to
tell us how much destruction is occurring. We do not have the capacity to know because there is no funding of
things like the land monitor system that was in place. There is none of that remote sensing work that tells us the
extent of native vegetation loss on a year-by-year basis.
I attended a presentation by Professor Richard Hobbs to the Urban Bushland Council a week ago.
Professor Hobbs is a distinguished fellow of the school of plant biology at the University of Western Australia
and he was giving a talk on this very subject. The best statistics he could come up with about the extent of
clearing dated back to the Gallop and Carpenter government days. He had to go back that far to get the really
robust statistics, because this government does not want to know how bad things are, so the monitoring is not
being done. Similarly, on a broader scale when it comes to environmental matters, this government does not
want to know how bad things are going so it is not producing a new state of the environment report. The last one
was produced in 2007.
Ms M.M. Quirk: They’re saving paper!
Mr C.J. TALLENTIRE: The government is perhaps saving paper, but nothing else, because we do not have
any hard statistics on a whole range of environmental indicators. We do not know how much has been lost. We
can perhaps pretend that nothing is going wrong, live in a state of denial and pretend that everything is fine,
because we do not want to be faced with the hard statistics. That is the problem that this government has. The
[ASSEMBLY — Wednesday, 11 March 2015]
1051
government does not want to face up to the extent of environmental loss. On the issue of native vegetation loss,
that is certainly very clear.
I want to touch a bit further on the other exemption area. That is to do with the definition of “regrowth
vegetation”. Somehow, people have the idea that if vegetation has been knocked down, it does not really matter
anymore, because the areas that have been cut down, perhaps as part of our state forestry system, will regenerate,
and even though the structure of the vegetation will be significantly altered, the composition of the suite of flora
and fauna in that area will come back just as it was before. That is the whole premise upon which we base our
forestry industry. To say that even if something has been cut down, it is regrowth, and therefore it does not
matter, is totally inconsistent with the view of foresters, yet we do not dispute the fact that we have a forestry
industry that does have a regenerative capacity if it is correctly managed. Therefore, the idea that we should not
care about regrowth because it is 19 years and 364 days old is completely false. How many hectares of
vegetation is being knocked down every year simply because someone is claiming that it is land that was
knocked down nearly 20 years ago? We do not know. We are in complete ignorance. For the government, it is
a state of blissful ignorance. However, it is a totally unacceptable state of ignorance, because Australia has made
significant commitments under the international Convention on Biological Diversity. We also have
a National Strategy for the Protection of Australia’s Biological Diversity. One of the key commitments in that
strategy—which the Liberal Party signed off on under Premier Richard Court—is that government would
maintain the accuracy of these sorts of statistics. One of the other commitments in that strategy is that there
would be no net loss of native vegetation. We know that there has been a massive loss of native vegetation.
However, members opposite cannot tell us how much loss of vegetation there has been. They do not want to
know what the statistics are. That denial and blissful ignorance is just kidding everyone. It is like the frog in the
saucepan situation. Eventually we find that another species has gone, because we have allowed all that
vegetation to be destroyed, and now there is no more habitat for that species. There is no monitoring of it.
I note the presence in the chamber of the Leader of the House and Minister for Planning. The Minister for
Planning is working towards a strategic assessment of the risks and threats that arise from urban development.
A lot of that is focused on the Carnaby’s Cockatoo. That initiative will give us a more solid base to know what is
the extent of destruction, and what is the rate of decline—it is not going to be a rate of increase—in the Perth
metropolitan area. However, the broader issue across the state is that we cannot produce the statistics, because
the government is failing to get those statistics.
I also note the presence in the chamber of the member for Eyre, a man for whom I have the utmost respect.
I know that some of the member for Eyre’s constituents would be the people who were lobbying for the clearing
laws, as they call them, to be changed and made more flexible. I think some of those people thought that there
was a total ban on the clearing of native vegetation. That was not the case. It was simply that people had to apply
for a permit. What could be wrong with that? We could then have an assessment by, hopefully, well-qualified
and expert people, and where the proposal would cause a significant loss, it could be turned down, and where
there would not be a problem, it could be permitted. We would then have the statistics and would know how
much native vegetation we are losing, instead of being thrust into this situation of blissful ignorance.
Mr M.J. Cowper: Who is paying for the assessment?
Mr C.J. TALLENTIRE: The Department of Environment Regulation is paying for that at the moment. There
was a theory that there should be some degree of cost recovery. I would support that. If people want to put in an
application, why not ask them to pay for it? I think the member’s side of politics generally supports the idea of
cost recovery. What would be wrong with that?
The process was there, yet somehow members on the other side of politics let it be understood that the system
was not working. In the government’s first term in office, the system was working reasonably well. The statistics
in the quarterly reports that are put out by the Department of Environment Regulation show the number of
applications that went through. In 2009–10, 689 applications for clearing permits went through the system. That
of course includes those that were done under delegation to the Department of Mines and Petroleum. In 2010–
11, the number of applications increased to 758; in 2011–12, it went up to 833; and in 2012–13, it went down to
752. We need to bear in mind that the government changed these regulations towards the end of 2013. We were
already seeing a decline in the number of applications by 2013. These regulations have done nothing to facilitate
the rights of people who are legitimate applicants, and they have resulted in a situation in which we now do not
have a clear indication of how much destruction of native vegetation is taking place, because we do not have the
statistics that we need to have.
I refer again to the “State of the Environment Report Western Australia 2007”. At page 133 of that report,
a priority rating is given to loss or degradation of native vegetation. Perhaps that is what the minister needs to
address. The minister needs to look at that report so that he can understand the significance of this issue and see
how dire the situation is in many areas. The report looks at the percentage of native vegetation that remains in
the 10 most cleared local government areas in the south west. For example, in 2001, the Shire of Cunderdin had
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only 1.8 per cent of native vegetation remaining. The minister is saying that if farmers in the Shire of Cunderdin
want to clear five hectares a year, or claim that although some bush was destroyed in the last 20 years, it has
come back and is regrowth, they can go ahead and clear that land. How does that meet our commitment to turn
around native vegetation loss and increase the amount of native vegetation cover? It does not do that at all. We
need to acknowledge, of course, that there are people in the Shire of Cunderdin who are doing their utmost and
are spending significant amounts of money to revegetate areas. However, the government is giving a free kick to
people who want to destroy native vegetation.
I know from previous discussions that the minister has put forward the argument that this is part of helping us to
keep up with the advances in agricultural technology. I think it was in late 2013 that the minister first started to
use those words. Any broadacre farmer would tell the minister that the size of headers and seeding equipment
has not changed in recent times. The big increases in the size of headers and seeding implements—the member
for Geraldton would know this as well as I do—would go back to probably the early 1990s.
Mr A.P. Jacob: Have they been using GPS since the 1990s?
Mr C.J. TALLENTIRE: GPS does not suit the minister’s argument; it does not support the need for bigger
equipment. The minister’s argument is that he had to enable people to clear more so they could get bigger
equipment around. Putting a GPS device in a header does not require the header to have a bigger area to get
around. The header is not made bigger by putting in a GPS.
Mr D.C. Nalder: Did you say that equipment has not got bigger since the 1990s?
Mr C.J. TALLENTIRE: I do not think it has.
Mr D.C. Nalder: It has.
Mr C.J. TALLENTIRE: It has not. I have spoken to people at various machinery companies about this —
Several members interjected.
Mr C.J. TALLENTIRE: No, I am not taking the interjection from the member for Wagin. His farming
background is way back.
Several members interjected.
The ACTING SPEAKER (Mr P. Abetz): Members! The member for Gosnells has requested no interjections
and we need to honour that.
Mr C.J. TALLENTIRE: Take the argument that because the machinery has got bigger, we should be able to
destroy more. That does not get around the fact that in a shire such as Dowerin, where 4.3 per cent of native
vegetation remains, the member thinks more vegetation should be destroyed. What a disgrace! The member is
not prepared to support people who are revegetating areas.
Mr D.C. Nalder interjected.
The ACTING SPEAKER: Member for Alfred Cove.
Mr C.J. TALLENTIRE: Members opposite just do not get it. If we are to protect the biodiversity heritage of
Western Australia, the first task we have is to protect native vegetation. Allowing further unmonitored loss of
native vegetation is a disastrous mistake. It means that we will see things dwindle away. We will not even realise
that it has happened until it has all gone. As I said, it is the classic frog in boiling water situation. I think about
people in areas such as the Shire of Bruce Rock, where 7.1 per cent of native vegetation remains. How can we
imagine sustainable agriculture when only that amount of native vegetation remains? Who are we kidding? We
have a problem not only with biodiversity loss, but also with land degradation. The hydrology has been totally
changed by the removal of deep-rooted perennial native vegetation. We can try to remediate this and there are
various plans. Replanting deep-rooted perennials is one excellent way to try to improve things. Members need
only book themselves a window seat and fly over the wheatbelt and look out the window to see that the millions
and millions of dollars invested in revegetation programs has had some, but very limited, impact. Not a lot of
revegetation is seen, but there is some. It is exceptional to see it from a plane. It needs to be seen on a much
bigger scale to turn the problem of salinity around.
These days government members do not talk much about salinity. Under the Court government, with
Deputy Premier Hendy Cowan, it was a topic very much to the fore. At one stage, it was probably considered the
number one environmental issue in Western Australia, but somehow it has completely dropped off. That is
simply a reaction perhaps from the media and an indication of the level it is discussed in this chamber, because
the reality is that the Department of Agriculture and Food continues to produce reports on the direness of the
situation. The Department of Agriculture and Food’s 2013 report card on sustainable natural resource use in
agriculture reveals that WA farmers already forgo $344 million on land lost to salinity. That is $344 million lost
to salinity alone. The department’s projection, which has been fairly consistent over the years, going back to the
[ASSEMBLY — Wednesday, 11 March 2015]
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1990s and the formation of the State Salinity Council—one of the Court government’s initiatives—that turned
into the Natural Resource Management Council, is that up to 4.5 million hectares of productive agricultural land
is currently under threat to salinity. Bearing in mind that the actual figure for the wheatbelt is around 18 million
hectares, 4.5 million hectares is a very sizeable chunk. We cannot afford to risk this stuff anymore. To allow the
problem to be exacerbated through a very flimsy change to regulations, in the wheatbelt context, is an absolute
disaster, because we do not know how much land we are losing.
What about other parts of the state, such as the areas the member for Murray–Wellington represents, where there
are smaller properties? What is going on there? What is the situation there? Does it mean that people with a 20,
50 or 100 hectare property are entitled to clear and destroy five hectares per year per property? Proportionately,
their level of destruction will be far greater. One would hope that people who have bought a property because
they believe in sustainable agriculture would not want to destroy that amount of native vegetation in any one
year, but I can guarantee that some people will do that, and we do not have a control checkpoint in the system to
counter their ill-informed and poor plans. The minister has just made the whole situation so much worse. The
same applies with the regrowth exemption that will have a far greater impact on smaller properties than on larger
properties. Of course, for a typical wheat farm of perhaps 5 000 hectares, which has a five-hectare allowance, it
will not be an enormous amount of land percentage-wise, but for a smaller property, such as those in the outer
metropolitan area, this will have an enormous impact. It is such a shame, because there was such a good degree
of community support for all kinds of initiatives to reverse the decline in the extent of native vegetation. The
minister has opened up this exemption and enabled it to come into play, and it will just exacerbate the problem.
I asked the minister a question on notice —
How many hectares of clearing of native vegetation have occurred where there is a claimed exemption
from the requirement to obtain a clearing permit?
The minister answered —
There is not requirement to advise DER when clearing has occurred under an exemption.
The minister cannot tell me how many hectares are going down each year because of these exemptions. The
minister could have justified allowing the exemption if he had said he would crank up the quality of remote
sensing monitoring so that year in, year out we could get a very accurate figure of the decline or perhaps increase
in the extent of native vegetation. If the minister had done that, he might have had some degree of justification
for his actions, but the minister did not do that. No-one is doing this work and there are no accurate records; and
what is more, the reports the minister puts out on permitted clearing and destruction are getting more and more
hopeless. All those reports refer to is the turnaround times on the applications that come in to the department;
they do not refer to hectares or whether some ecosystems are more valuable than others, as they just give
a ridiculous overview of application timelines. That just entirely misses the point.
I really thought the Department of Environment Regulation would put out a document that gives an accurate
quarterly reporting figure, not just on the processing time. The minister is not simply running a sausage machine;
he is running an agency that is tasked with protecting our biodiversity. I thought we would be provided with
some good statistics, ecosystem by ecosystem, vegetation complex by vegetation complex, right down to the
smallest scale indicator of how much loss is occurring in some types and how much gain is occurring in others.
That level of information should be provided. It would be valuable. It could be done in conjunction with federal
scientific organisations such as the Commonwealth Scientific and Industrial Research Organisation. It could be
done in conjunction with all those organisations that were partners to the land monitoring program, and in
conjunction with universities. There is amazing capacity when it comes to using geographic information systems
and remote-sensing technology. We are refining that. We are using it in so many other areas. Remote-sensing
technology is used to predict annual wheat crop yields. Why can we not apply that to predictions about the
protection of our native vegetation?
We have a very serious problem. It has been brought about because this government is happy to pretend there is
nothing going wrong. The government has been quite cunning—it has worked out that the best way to pretend
nothing is going wrong is to not produce any statistics or information. It is leaving us all in a state of blissful
ignorance. That way we cannot actually argue with the Minister for Environment. We receive trite responses
such as, “There is no information gathered. Currently, we can’t actually say how much is going down because
there is no requirement to advise the DER when clearing has occurred under an exemption.” What the
government is really saying is, “We don’t know; we don’t care.” Ultimately, the protection of our natural
heritage comes down to the Liberal Party’s attitude towards not caring—not caring about the protection of our
biodiversity.
Biodiversity is clearly a feature of this state. It is of outstanding global significance. It is unique in so many
ways. Western Australia is so richly endowed. There are over 13 000 plant species. There are areas that have
species diversity that is found nowhere else on earth. I could draw a square 10 metres by 10 metres and find
160 different plant species in one spot, and then immediately adjacent to it find another 160 species, but they will
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be 60 per cent different from the ones next to it. That level of species diversity is just unheard of. In many cases
it exceeds those that can be found in any of the tropical rainforests. It is absolutely outstanding; yet the
Minister for Environment is prepared to say to people who live near, say, Lesueur National Park and want to
clear an extra five hectares on top of what was knocked down 19 years ago, “We don’t care, we’re not going to
ask any questions. Just let it go down again. Just get rid of it and convert it to cropping.” Cropping is
important—we need to feed the world—but there are very good ways to better use the land that we have. After
all, cropping is not the highest value land use. There are far more efficient ways to produce food. It so happens
that cropping in the wheatbelt is perhaps the region’s most likely economic activity at the moment. I do not
believe that there is a shortage of cropping land in our wheatbelt. The world’s food needs can be met through the
proper distribution of that food resource. In terms of the Western Australian economy, if we want to make
a contribution to that and become a wheat producer, there is no shortage of farms for sharefarmers to access.
Agricultural land can be accessed if people want to get into agriculture. People do not have to own the land; they
can enter a business arrangement to access land.
I really feel that this whole issue has highlighted the government’s attitude towards the environment portfolio in
general. Its attitude is one of not really wanting to know the facts—blissful ignorance—and deep down it just
does not care.
MR I.C. BLAYNEY (Geraldton) [4.35 pm]: I would like to speak briefly on this motion. I speak mostly from
representing part of the northern wheatbelt. Although I spend most of my time in the northern wheatbelt, I have
friends and relations throughout the wheatbelt so I spend a bit of time in other parts. Driving around the
wheatbelt over the last 10 years I cannot recall a time when I have seen evidence of recent clearing. That is
entirely anecdotal. The increase in the amount allowed, from one hectare to five hectares each financial year, is
something that I and a lot of other members of the Liberal Party were very keen to get in place. Also, increasing
the period from 10 years to 20 years was something that we were keen to get in place. We wanted more than
20 years, but 20 years was all they would give us.
Mr C.J. Tallentire: But you just said there was not any clearing happening.
Mr I.C. BLAYNEY: That is the point I am trying to make. I think the member for Gosnells is making
a mountain out of a molehill.
Mr C.J. Tallentire: We do not know because we do not have the stats!
Ms S.F. McGurk: Is that not the point?
Mr I.C. BLAYNEY: I just made the point that it is my observation; it is anecdotal. My experience is what is
seen on the ground tends to be the most accurate thing of all. That is my experience.
Mr C.J. Tallentire: What about remote sensing? That can be accurate.
Mr I.C. BLAYNEY: I agree with the member. One of the reasons not many growers clear is, along with a lot of
other reasons, they assume that they are being monitored by remote sensing. In every area that is farmed, people
will say they are concerned that if they clear a fair bit of land, they will be picked up straightaway by satellites.
People who police this generally produce the data to prove it. If the member for Eyre speaks, he will point out
that people have been prosecuted. It is quite easy to do because people get the satellite images for those areas and
it shows up straightaway. I have no arguments about the accuracy of remote sensing. It is incredibly accurate.
I have to confess that I did a little clearing as a young man at South Burracoppin in 1982. I think that would have
been about when the last clearing was done in that area. I got permission to clear some land on my own farm in
the late 1980s but we decided not to do it and it was never done. That is when the first clearing controls were
brought in. We had to do what the member for Gosnells suggested—a land management person came out from
the local department of agriculture to look at it and agreed that what we wanted to do was okay. As I said, the
family made the decision not to do it. It was only about 20 acres anyway.
I was quite fortunate on my own property. I had about 600 hectares of native scrub out of about 4 000 hectares.
We have to recognise that sometimes native vegetation has to be cleared. It is quite amazing how quickly it
comes back. We have to clear some native vegetation for fencing, sides of roads and fire control. It is also worth
pointing out that a lot of the country still under native vegetation is probably the least valuable agricultural land.
As a rule, when people clear land, the best land is cleared first. The stuff that is now left is the stuff most
unlikely to ever be cleared anyway. Anecdotally, once again in my area, most farmers are not interested. I do not
know anybody who has cleared any land on a commercial property in about the last 20 years.
A point was made about machinery. I think the member for Gosnells is perhaps a little off track there. There is
a phenomenon in the wheatbelt that a lone tree in the middle of a paddock serves very little ecological purpose
because it is just by itself. Farmers have often said to me that they would like to get rid of those lone trees. What
has been said is correct—machinery is getting bigger and, with guidance, a lot more work is being done at night.
[ASSEMBLY — Wednesday, 11 March 2015]
1055
That is when farmers want to get rid of lone trees. When there are less experienced workers working in the
middle of the night, relying on guidance, there is a pretty good chance they will hit those lone trees.
Mr C.J. Tallentire: It is not five hectares, though.
Mr I.C. BLAYNEY: No, the member is absolutely right in that case. But I think the member for Gosnells will
agree with me about the lone tree or just a few trees: if a farmer was prepared to get rid of them and revegetate or
fence off another area as a trade-off—that is what most have indicated to me they are prepared to do—I think
that, environmentally, that is a good thing.
I had experience with one farmer who came to see me; he was not in my electorate, he was next door. He had
bought some land that had previously been cleared—this is one of the ones the member for Gosnells was talking
about—and it had regrown. He went ahead and re-cleared that land. He was fined $80 000 and had to leave it to
return to native vegetation. He very nearly went to jail. I do not think there is an issue about the law not having
teeth; they were very quick to jump on him for that.
I was also interested in what the member was saying about salinity. My understanding of the salinity situation in the
wheatbelt is that a lot of the projections that were made in the 1980s, in particular, are now really being questioned
because of the decline in rainfall. So, if we want to know what is happening with salinity—once again, the member
is probably correct that these figures need to be updated—my understanding is that there is a lot less country now
under threat from salinity purely because of the decline in rainfall. If we were to try to address salinity in some
areas of the wheatbelt with revegetation, one that comes to mind is Dumbleyung. The estimate has been made that
if we want to address salinity in Dumbleyung, we would have to revegetate, I think, 60 per cent of the shire. The
member is sort of right in saying we need more vegetation there, but the scale of revegetation needed to address the
watertable in that area is so vast that, quite honestly, it will not make any difference.
The point I want to make more than anything is that farmers have had a huge change in their mentality on this
issue. I am sure the member for Gosnells would hate to see the footage of people clearing one million acres
a year or whatever it was the 1960s, but they are long gone. Most farmers are now planting thousands of trees.
But from the point of view of management of properties, there does have to be, I think, a right to, as part of farm
management, get rid of trees in some places. As I said to the member, I think most landowners would agree that
there should be a trade-off. If someone is clearing a few hectares in one place, they should revegetate somewhere
else. In any property we can pick out pieces of land that, quite frankly, are useless for farming, but they are quite
able to be revegetated. I sort of admire the member’s sentiment, but I think, certainly as far as the wheatbelt and
where I come from are concerned, he is probably a bit out of touch with the reality, but I will not speak for other
regions in the state that I do not know as well.
MR M.J. COWPER (Murray–Wellington) [4.43 pm]: The Murray–Wellington electorate, in my view, is
arguably the most important electorate in Western Australia. I say that, apart from being parochial, because we
provide 40 per cent of the power generated in Western Australia that is sent to Perth, we provide 60 per cent of
the water used in the city, given the desalination plants and dams and the like, and we also produce something
like 40 per cent of the food eaten domestically in Western Australia when we take into consideration the market
gardens of Myalup, Harvey Fresh and Harvey Beef. We fight above our weight when it comes to contributing to
this state’s great wealth. On top of that, we are also the third-largest mining region, so for the royalties returned
to the state, the area I represent plays a pivotal role in keeping the wheels of this state rolling.
Mr D.A. Templeman: We don’t get our fair share of royalties for regions, I might add.
Mr M.J. COWPER: That is another issue for another day, member, that we might have to go into bat on.
The issue here is the notion that the member for Gosnells has that smaller landholders are going to go out and
clear land for the sake of clearing land. Although I understand what he is trying to say, I think it is a little
nonsensical because people do not do that.
Mr C.J. Tallentire: But it could happen, member, and there is no control.
Mr M.J. COWPER: I would be interested to know from the member for Gosnells’ book how much of the
vegetation is in the Shire of Murray, the Shire of Waroona and the Shire of Harvey. I think the member would
probably find that more than 50 per cent of those shires contain natural vegetation.
Mr C.J. Tallentire: It depends if you’re on the scarp; if you’re on the flat it is really low.
Mr M.J. COWPER: The Murray shire does go some 25 kilometres into the stove of the hill, towards
Boddington and beyond Dwellingup.
Mr C.J. Tallentire: Once you’re on the flats the percentage is terrible.
Mr M.J. COWPER: I will put it this way: there is still a fair swathe of natural vegetation, given the rainfall and
the climate we have.
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[ASSEMBLY — Wednesday, 11 March 2015]
The point the member was trying to make is that the one-hectare permit system is sufficient to do what
landowners might want to do from time to time, but let me say that many of the landowners in my electorate are
still, notwithstanding some clarity around this issue, concerned about what they can and cannot do on their own
land. It comes down to the issue of the rights of the landowners or leaseholders of particular land and what they
can or cannot do. That was made even more evident just recently down in Waroona, where members may recall
there was a serious bushfire. Some of the people had, for their lifestyle choices, bought small acreages on the
escarpment, and when the fire came charging over the hill they found themselves in a perilous position. There
were some near misses, and we did unfortunately lose one house; I do not think people in this place really
understand how close we came to losing 80 per cent of the Waroona township—a rather large town that was
under threat from fire.
It could be argued that this is a phenomenon that is Australian, and certainly Western Australian, but one of the
points I wanted to raise is that I spoke to a lady called Mrs Penetta who lives up on the scarp rock, behind where
the water tanks are in Waroona. She asked what her rights are in respect to removing trees close to her home.
I have since taken that up with the relevant minister, who came down on the day of the bushfire; I have also
taken it up with the Premier and told him we need some clarity around this issue. I know that a committee I am
part of has been looking at the recommendations that should be made in relation to the new legislation that
I expect—I hope—will come to this place sometime this year, and I hope that will provide some clarity. There
are conflicting standards reported in our statutes. Whether it is fire suppression or fire management or bushfire
acts, so many different pieces of legislation wash across this particular area, and some are outdated or not
contemporary. We really need a consolidated piece of legislation that people can read and have certainty on;
where things sit with the Environmental Protection Act, what has precedence over what, and which plants can
and cannot be removed has people in such a state. When they go to build a house on their property and they need
to remove a tree of some description, they are not sure whether they have the right and authority to do so. They
often go to their local government authority and say, “Am I able to remove this Tasmanian blue gum that was
planted some years ago, without a permit?” Some authorities would say that they can remove it without a permit
and some would say they need a permit. It depends who they happen to speak to on the day. This point is that
this government is trying to address this area of uncertainty—grey areas, if you like—that has a lot of people
perplexed as to their rights as landowners.
A particular issue down my way is the interference by various pieces of legislation on the rights of landowners.
I am hoping that later this year we will address that issue on another level, but in recent years we have had
a number of plans, including the Swan coastal plan, Bush Forever plan, Peel region scheme and greater Bunbury
region scheme. Aerial surveillance of proposed wetlands has been done and they have blighted all that land.
A lot of privately owned land has been set aside, without any compensation, that the landowners still have to
fence, keep weed-free and pay rates on, yet they are not allowed to enjoy the benefit of running stock or any
other enterprise on their own land.
Of course, this goes to the issue of whether there should be proper compensation, and I do not think that anyone
would disagree that in the Murray–Wellington electorate there are areas of significant environmental value that
should be set aside in perpetuity for future generations. There is no question about that. However, some of the
areas that have been encapsulated in the Peel and Bunbury region schemes in particular are somewhat ambit
claims made by bureaucrats sitting in their eyries in St Georges Terrace looking at satellite imaging. When they
go to ground level, what they encounter is not what appears in their satellite imagery. There is still the issue that
what is a farmer’s summer pasture is perhaps a wetland from an environmental perspective. Some of those areas
need to be worked through at the appropriate time. The notion that the amount of native vegetation is reducing is
interesting because in all those various schemes, the amount of native vegetation that has been set aside, much of
it on privately owned land, is phenomenal. We heard the member say that there have been X number of
applications over the years, but it does not really tell us a great deal about the number of trees that has been
planted. My Rotary club and the Rotary clubs of Collie and Harvey have been involved in rejuvenation and
doing various projects. North Dandalup Primary School is a wonderful school run by Meryl, who has installed
a very strong environmental sense in the kids. The kids at North Dandalup have done a number of projects and
gone out and planted trees and vegetation. I spent a number of days with Men of the Trees WA and members of
our community planting native trees for future generations. The notion that people are not interested and want to
go and start mowing down trees carte blanche is simply not true. When it gets to a situation in which people are
too frightened or afraid or unsure about what they are legally able to do, we need the government to step forward
to create some clarity and put in place some understandable information in plain English that people can go away
and deal with.
I refer to the issue of the five hectares. I take the point that the member makes about five hectares. In a broadacre
farm—let us say, Lake King or Varley or one of those massive farms out there the other side of Hyden—
five hectares is only a small portion compared with the size of their holdings. However, members might
appreciate that if someone was to clear the edge of the road from the main bitumen road to the homestead, it may
be over a kilometre. Someone clearing an area at the edge of their driveway for the purposes of drainage, fire
[ASSEMBLY — Wednesday, 11 March 2015]
1057
suppression, cleaning the fences or whatever it might be, might already have gone over their five-hectare limit
because they have to travel so far. I take that particular point that what is applicable in one area may not be
applicable in another. That would certainly be the case with pastoral leases. Going back to my time in the
Kimberley, I remember that to go from Great Northern Highway to Lamboo station was 10 kilometres. If
someone were to put the grader through there and grade the edges of the road, technically speaking they could be
in breach of the legislation. Like I said, this is a great opportunity to speak on this issue. I respect the member
from the other side’s decision. I do not believe he has made his case in this instance and I fully support the
minister in this situation.
DR G.G. JACOBS (Eyre) [4.54 pm]: I take the opportunity to speak briefly to the motion that the member for
Gosnells has moved in this place. I commend his passion and some of the points that he brought forward.
However, I think there needs to be some balance and he must recognise that I represent a significant number of
farming food producers in this state. To go back in history, when my dad was granted a block of land under
conditional purchase, the condition of that purchase was that he was to clear so much of that land a year;
otherwise, he gave up his right to the property. He also had a 14-foot Chamberlain plough. The farming situation
today is very much changed. There are not only pressures of economies of scale in farming today, but also
concerns and issues with the environment. That is the balance. I do not believe there is a lot of balance in this
motion because the member for Gosnells is suggesting that there be no more clearing.
Mr C.J. Tallentire: No, I am saying you could still get a permit.
Dr G.G. JACOBS: I will get to the permit process in a moment and the impediments it has created for some of
my constituents. It is not about all the food producers packing up and going to town and switching off all the
lights and saying, “No, it should never have been cleared. It is all marginal country east of Merredin and
I represent large swathes of land in the Yilgarn.” I convened the meeting in Esperance with the previous
minister, to which the member for Gosnells referred, but it was about, as the member for Murray–Wellington
was describing, the confusion and lack of clarity in some of the regulations. The present minister would concede
that the issue is the clarity of clearing and cleaning up. When I say “cleaning up”, I mean when some bush is left
inside the fence on a farmer’s freehold for a windbreak or whatever and over time it has degraded to such an
extent that it needs cleaning up and replanting. Again, that is in the context of these farmers using their
commonsense by offsetting some of that by addressing salinity issues with the creek and reforesting and planting
trees, for example. Perhaps that is other work to be done. The issue of cleaning up versus clearing needed
clarifying, and that was one of the reasons for the meeting.
Another reason for the meeting was the issue of clearing regrowth vegetation. The member for Gosnells has
talked about the 10-year rule now being a 20-year rule. In reality, it will not make a lot of difference, because it
has been 10 years coming. We have been talking about the 10-year revegetation rule for 10 years and now we
make it 20. I have to tell members, my cockies are saying that I have not changed anything. They say, “You go
back to the minister because you have not changed anything.” I tell them that at least we have made a start by
recognising the concern for regrowth and revegetation.
The member for Gosnells commented on a permit system and letting the experts do their work. I have to tell
members that many of the farmers and landholders who have come to me have been given by the Department of
Environment Regulation a description of clearing principles, the biodiversity value of the particular area in
question—whether it be two hectares or whatever—and the whole machination of what is represented in the
biodiversity of that area inside the fence on their freehold lot. They do this radial work, with the epicentre being the
area in question for a potential clearing permit and then move out. In that radial pattern, they describe other
biodiversity areas in proximity to the area in question. This is far from a perfect science. There is the predictive
modelling of what is there or what could have been there. In fact, a farmer may have done some clearing or
cleaning up and then the Department of Environment Regulation can say, “You have a vegetation clearing notice.
You have breached the clearing regulations.” A certain biodiversity was there before. That biodiversity is
predicated by these radial principles, which suggests that in proximity to this or that, there was something there so
that means what a farmer cleared was terribly biodiverse and clearing regulations have certainly been breached.
Mr C.J. Tallentire: It’s statistical analysis of the value of vegetation that is remaining in an area.
Dr G.G. JACOBS: I know but there are issues with the predictive biodiversity in a particular area when
a farmer is faced with the concern about what he has cleared and what he has not cleared.
I will conclude with the allegation that the member for Gosnells made that we have no statistics and we basically
have not done enough work on the statistics on clearing areas and the implications of these clearing regulations.
One of the major questions that my constituents, farmers and landowners have is: what key outcomes are we
achieving with the present clearing regulations? They are told about the effects on the planet by what they are
doing but we see good farmers who have the environment at heart doing work to offset those effects. For
instance, they are creating a nature belt and reafforesting creek beds and degraded areas. A lot of my farmers
were supposedly in breach of the clearing regulations but what they put back on their land is more beneficial to
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the environment than what was there. The vegetation is lusher and contributes much more to the environment
than the degraded vegetation that was there. I am saying that we need some balance but I think it is really
important not to have a blanket no, no, no.
The member for Gosnells talked about one hectare having increased to five hectares and that being destructive.
He used the word “destructive” quite a few times in his presentation. He talked about the fact that the GPS did not
matter and that machines are not that much bigger than they were in the 1990s. The machines are huge. My father is
not farming anymore. I am not a farmer. I have family members and friends in farming. The member can say that
the machines are bigger, but my father could go around a patch of land with a 14-foot Chamberlain plough. With
the implements we have today, we could say that is terrible but I am telling the member that economies of scale are
needed in broadacre farming to make it sustainable. As I have said in this place before, we cannot eat iron ore.
We have to support our food producers. I will briefly talk about the comment made that there is plenty of land and
we do not have to clear that bit. It is important to recognise that we have economies of scale in farming. The
implements are very big. We are talking about patches of land; some of it is already degraded. It is left isolated.
Sometimes the stock has got onto it and degraded it or it has not been sufficiently protected. There are patches
within big paddocks that the big machinery of today cannot go around. If the member does not believe that, he
should come with me to look at a farm. I am sure he has been there.
I turn to the point that the member for Gosnells made about access to land, saying that there is plenty of land.
I occasionally visit areas north east of Southern Cross. I sometimes get the following comments from the
Department of Agriculture and Food as well, so I will be up-front. Some people who may be in a similar position
to the member for Gosnells say, “This area should never have been farmed. It is marginal country. Because of
climate change, it will never rain again.” After what I have seen over the past seven years, I have to agree. What
do we do? Some of the farmers in those areas are second and third generation farmers. In the past a huge amount
of high premium, high protein wheat has come from that Yilgarn region. The contribution to this state has been
huge. If it is now marginal and it will continue to be marginal and, due to climate change, those farmers will
struggle, what will the state do? We might say that they are private farmers and, by attrition, as their farms
become unsustainable, they will just drift off and go to town. We have had some involvement with land in
Esperance that was gazetted but had never been opened up. I do not mean marginal land. Members might think
this is a harebrained idea but we have to have some positives rather than just say that certain areas are marginal
and they are finished, farmers out there should never have cleared the land and they should not be there. What
are we going to do with those farmers because they need access to some land? Is there some arable land that is
not marginal that is available for resettlement in a better region within the Esperance zone? That is all we are
asking. We are not talking about a blanket 250 000 hectares and we are not talking about big farms getting
bigger. We are talking about bona fide genuine farmers—family farmers. We are not necessarily talking about
big foreign investment either, which is taking land en masse. I am tossing around the issue of whether
a resettlement plan is viable, one that will be a positive for farmers, a positive for the state, a positive for the
country and a positive for the environment.
I think there needs to be balance in this debate. I think the changes in the amendment regulations to go from one
hectare to five hectares are environmentally responsible considering the economies of scale in farming today, the
necessity to do it without destroying the environment and the issue of the 10-year rule and the 20-year rule for
regrowth vegetation.
Mrs G.J. Godfrey: What about permits?
Dr G.G. JACOBS: I am going to get into trouble from the Whip. One day I will address the whole issue of the
permit system because there are some serious concerns in and around that for farmers in my region. I will not
support the disallowance. I think these regulations should go through. They are positive for my constituents and
they are not destructive to the environment.
Debate adjourned, on motion by Mr D.A. Templeman.
TAFE COURSE FEES
Motion
Resumed from 25 February on the following motion moved by Mr F.M. Logan —
That this house condemns the Barnett government for its massive increase in TAFE course fees and its
sustained undermining of TAFE.
MRS L.M. HARVEY (Scarborough — Minister for Training and Workforce Development) [5.11 pm]: Thank
you, Mr Acting Speaker, for the opportunity to continue my remarks on this motion with respect to TAFE fees and
a range of other issues affecting the training sector in Western Australia that was brought before the house on
Wednesday, 25 February in private members’ business. Just to reiterate where the state government is coming from
with this policy initiative, there were repeated and standard grievances raised as part of that debate that related to
increases in fees, specifically with respect to the jump in fees when Future Skills WA was launched, projected
[ASSEMBLY — Wednesday, 11 March 2015]
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further increases and a range of other issues on behalf of constituents on how fee increases have negatively
impacted on them. I will take the opportunity to correct the record on some statements. Some of the statements
about costs were accurate; however, in a number of instances it appears that there may have been incorrect
information either recalled by the individuals or possibly provided to the individual by the TAFEs concerned.
Just to cover some of the issues, since the 1990s, generally speaking, fees for training within our institutes have
not kept pace with increases in delivery costs, which has led to an increasingly unsustainable training system.
Prior to Future Skills WA, the state on average subsidised around 93 per cent of the total cost of training, and
even with the change to the fee structure, the state continues to heavily subsidise training to the tune of
80 per cent, on average, of the total cost of running the course. A number of measures have been put in place to
assist students with meeting costs and they are available to students. Some of those initiatives are an annual
course fee cap of $410 per year, which is available to students who are of secondary school age in 2015. I will
come back to that matter later when I address some of the concerns of individual constituents. There is
a 50 per cent concession for eligible students on lower incomes and there is also a HECS-style loan for students
studying diplomas and advanced diplomas through the VET–FEE HELP scheme. This means that there will be
no upfront fees for those students who qualify for VET–FEE HELP and students do not need to make
repayments until they earn over $50 000 a year.
There were a range of constituent queries, so I have asked the department to look into specific constituent issues.
I also encourage members to write to me regarding specific issues with their constituents that I perhaps do not
manage to address appropriately in this response so I can then further interrogate any particular problems not
addressed to their satisfaction or other specific issues that might arise around these individuals.
I will first speak to the member for Mandurah Cockburn’s remarks regarding the granddaughter of one of his
constituents, Joy Ware. The assertion was that Joy’s granddaughter was required to pay her course fees upfront
or she would be refused enrolment and the fees for her certificate II course were nearly $3 000. We have had
a look at this case and we have not been able to find information to identify the actual individual. I request that
the member for Mandurah member for Cockburn provide contact details for this constituent so that we can
provide assistance and look into the specific issues. Training providers can offer students enrolling in a statefunded course access to payment by instalments. I think it is highly unlikely that a TAFE would not have offered
this option and would have refused enrolment, because they tend to bend over backwards to try to get those
students across the line, get them enrolled in the colleges and obviously get them locked into training, because
the TAFEs are really interested in ensuring that people are trained to industry standards and are actually working
towards employment.
The member for Gosnells raised an issue about his constituent Jason. According to the member for Gosnells Jason
tried to enrolled in a certificate II in cabinet and furniture making at TAFE thinking it was a six-month course that
would cost $1 500, but he was then subsequently told that the course would cost $3 000. I believe this information
was incorrect. Jason was enrolled as a concession student in 2014 and paid $1 254 in course fees and a further $335
in resource and other fees—so about $1 590 in total. The course fee for this pre-apprenticeship course in 2015 is
$1 488 for a non-concession student and $744 for a concession student, and the total fee in 2015 for a nonconcession student is around $1 993 at Polytechnic West, so quite different from the $3 000 that was quoted. It
appears his constituent may have received some incorrect information and this does happen from time to time.
Ms S.F. McGurk: Do you understand that that is $2 000 for a pre-apprenticeship with no guarantee of an
apprenticeship after that—so no guarantee of a position after that pre-apprenticeship. That is an enormous
amount for people to fork out.
Mrs L.M. HARVEY: Once people engage in those pre-apprenticeship courses, we have a very good record of
locking those people into apprenticeships that will then lead to employment, and that is the whole point of preapprenticeship courses.
Several members interjected.
The ACTING SPEAKER: Members!
Mrs L.M. HARVEY: I did not say 100 per cent. I said a significant number of those students in preapprenticeship courses will go on —
Mr M.P. Murray: That is 25 per cent who have to pay the fee and do not get anything back.
Mrs L.M. HARVEY: That is 75 per cent who do go on to further education or further training—not necessarily
into apprenticeships. Some of them go on to other training pathways. I will request that the member for Gosnells
give us the contact details of that particular student or that Jason contacts the TAFE directly so we can ensure he
gets the right information. Sometimes the way the courses are structured is confusing and people look at courses
and do not understand that the fee listed is for the entirety of the course and things like that. I am not suggesting
that that happened in this case, but I encourage the member for Gosnells to ask his constituent Jason to contact
the relevant TAFE, or even my office or the Department of Training and Workforce Development, and we can
work through these issues with him.
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[ASSEMBLY — Wednesday, 11 March 2015]
One of the other issues the member for Gosnells raised, which is being addressed—it is known to my
Department of Training and Workforce Development, which is engaging with TAFEs on the matter—is that of
his constituent called Lauren Adams who is enrolled in a certificate III in education support, which now costs
$2 740 for a six-month course compared to $600 previously. That was a significant rise. However, it was
asserted that Lauren had missed out on getting out the concession for students under 18 years of age by
three months. When she enrolled in January, she was 17 years and nine months of age, but she had to be 17 years
and six months or younger to be eligible for the under-18 concession. The way the $410 fee cap works is that it
should apply to students who have started schooling at a later age than usual or repeated a year—basically
students who would be eligible to be in school for that year. The Department of Training and
Workforce Development has been reviewing this matter and has advised TAFEs to confirm students’ details with
their schools prior to their enrolment to ensure that they would be treated as any other year 12 student would be,
regardless of their age. Should they be eligible for a year 12 placement in high school, they would then be
eligible for the $410 fee cap on their courses. We will be contacting the member for Gosnells and asking if that
individual could get in contact with us so that we could advise her directly, or even via the member’s office.
The member for Cockburn raised a number of issues about course fee caps and fee increases. One of the issues
raised was that the maximum cap of $2 000 per semester on fees paid by apprentices for their courses is being
removed. The $2 500 cap is gone as of this year. The $2 500 course fee cap was introduced in 2014 and is
applied annually per course not per semester. That fee cap was removed in 2015, but there is a little bit of
confusion about whether it applied per semester or per year. The member also claimed that a person studying
a certificate IV in mental health at the West Coast Institute would have originally paid just over $600, but in
2015 would pay $2 800. Our contact with the West Coast Institute revealed that the approximate fees for
a certificate IV in mental health at the West Coast Institute would cost a non-concession student $2 057 in 2015.
That includes a resource fee of $212.
There was also some talk about the childcare industry and the requirement of a minimum qualification to work in
the childcare industry—in this case, the minimum qualification is a diploma. The minimum qualification to work
in the childcare industry is currently a certificate III level. The approximate course fee for a certificate III in
child care is around $2 500. With respect to diploma level qualifications, there is the diploma of early childhood
education and care. That is typically delivered over two years and attracts an annual course fee of $4 933 in
2015. The total course fee for the full qualification is approximately $10 000. I think it is important to note that
all of those course fees were previously funded by the federal government that has now withdrawn its funding
for those programs. They are delivered at a cost. People who engage in those diploma level qualifications are
eligible for VET FEE–HELP. I caveat that we are keeping a watching brief on these fees to ensure that people
are enrolling in priority occupations that form the basis of the Future Skills WA policy implementation and that
we are not seeing any unintended consequences in enrolments and other things as a result of the introduction of
the increases in some of the fees. We also note that all of these courses in the priority occupation areas are
funded—and will continue to be funded—by the state government to the tune of up to 80 per cent as an average.
There were claims that the course fees over a two-year period for a diploma of early childhood education and
care could go as high as $14 000 or $15 000. The indicative course fee rate for 2017 for those courses is
$10 475; significantly less than the estimation of $14 000 to $15 000. As I said, we are keeping a watching brief
on these fees and enrolments and VET FEE–HELP is available to students, and they do not need to pay a cent
for that course until they are earning $50 000 or more. The member for Cockburn also claimed that the
construction industry training courses at Bunbury TAFE will be closed. We have been contact with the
South West Institute of Technology and it has advised that there are a number of trade areas where
apprenticeship enrolments are very low and expensive to run on a per-student basis. SWIT is working on an
alternative delivery model and making sure that this alternative model for that apprenticeship training will be
acceptable to industry and also be viable to operate that training program. I think we all agree that the training
sector needs to be sustainable into the future and that we need to ensure that the training prioritises those areas
where we know there is going to be a future demand for jobs and where we know the growth is going to be in
particular industry sectors. We therefore know that the government’s investment of a minimum of 80 per cent in
subsidising those training courses is going into training people for employment, and that employment then
contributes to the economy.
Another aspect that I need to address with the member for Cockburn is, and I quote from Hansard —
The Department of Training and Workforce Development, in its “State Training Plan 2014–2017”,
determined through an econometric modelling exercise—that is, a desktop theoretical modelling
exercise—how much funding should go into the budget of state training providers for the period 2014
to 2017. That was based on the belief by the department of training that there would not be an increase
in demand for apprentices in the construction industry over the time of the “State Training Plan 2014–
2017”.
[ASSEMBLY — Wednesday, 11 March 2015]
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That proposition was put into the econometric model, and what came out was a significant cut to
construction industry training across the state training providers.
I think we need to put this modelling in context. The state training plan shows a slight decrease in relativity for
construction trades workers, and by slight I mean it goes from 6.4 per cent to 6.2 per cent. This is a decrease in
relativity against other occupational groups. That reflects a range of indicators and forecasts provided to the
Department of Training and Workforce Development. The department liaises with and pulls information from
a range of very credible third-party sources that also provide information to other government agencies and other
states —
Mr M.P. Murray: Minister, a serious interjection: is there any study done about before the event? Did you make
a decision not go down that path because it is too expensive?
Mrs L.M. HARVEY: No. Future Skills WA came out of a range of policy initiatives around trying to channel
the apprenticeships and the traineeships and students into the priority areas where the modelling tells us the jobs
are going to come from. A range of courses was being offered by the institutes that the government was also
subsidising, and we are using the government subsidisation of courses as a lever to propel students into the areas
of priority. There are 60 priority areas that have been identified by the Australian government that are included
as part of our strategy. It is actually designed around effective training that is relevant to industry, and the
competencies are relevant to industry and accepted by industry. We do that in consultation with industry and also
looking at the modelling to see which areas of the economy we expect that the employment is going to come
from. It is quite complex modelling, but when we look at the figures, that policy leader of the heaviest
subsidisation of the priority areas and less subsidisation of the non-priority areas has meant an uptake of
students. I might caveat that these are preliminary figures, but there has been an uptake of students going into
those areas of priority training where we want them.
Mr M.P. Murray: Which is the point I am making. So they are going into the course for financial
considerations not because that is their chosen job.
Mrs L.M. HARVEY: The member for Collie–Preston makes a good point because this is the state government
and the taxpayers of Western Australia who are putting money into supporting students through a training
program and apprenticeship program. We want to make sure that that is actually money well spent and leads to
employment so that those students can then be part of our economic future and be contributing to the state and to
the Australian economy as a whole. If students want to take up courses that are of interest to them but do not lead
to employment, the question is should the taxpayer be funding those programs. I put it to the member that I do
not think that is a desirable outcome.
Mr M.P. Murray: I understand that. But as a person who has come through the TAFE system, what happens is
that people do not always get it right. Also, as the circle goes around, there may be a shortage here or there, so
we have to change the circle. Time and again in my 50-odd years, I have seen that happen. The reaction is
always too slow—I am not talking about this government; I am talking overall—and the time taken to train is too
slow, and then another cycle is coming through. It is very dangerous to just do it by design, I suppose.
Mrs L.M. HARVEY: The member for Collie–Preston has raised an important point. The challenge in the
modelling and the challenge in any policy lever of government is to put in place a system that is flexible and that
can respond in time to feed into the peaks and troughs of the cycles. We know from the boom-bust pattern in the
mining industry that industries have a natural cycle. The art is in trying to predict where the numbers need to be
to make sure that we are filling the places and feeding the needs of industry as it goes into the upswing.
In trying to determine where the demand will come from for construction trade workers and other occupational
groups, the modelling that we use is consistent with that in the Chamber of Minerals and Energy’s recent growth
outlook. The chamber forecasts in its growth outlook a decrease in the need for construction workers in the
resource industry due to moderation in the pipeline of major projects. In addition, the state training plan noted
that although data sources and industry intelligence suggest that conditions in residential construction are
improving, the demand for skilled construction workers from residential building was likely to be offset over the
coming years by the ending of construction works on major resource projects. Under Future Skills, we guarantee
a training subsidy for all apprenticeships, including construction trade apprenticeships.
Western Australia has a very robust training system, and we have a pretty good record, because 50 per cent of
the people who do pre-apprenticeships go on to become full apprentices. It takes three years to train an
apprentice. However, trying to pull the policy triggers and get apprentices into a cycle, and trying to predict three
years ahead of time when that cycle will take off, is a big challenge for the government and for our training
institutions, and also for industry. Therefore, industry has been consulted as part of our plan. We are also liaising
closely with our industry consultative bodies to ensure that we respond to their needs and that they engage with
the econometric modelling and take advantage of the other reports and information that are available through the
different sources used by the Department of Training and Workforce Development. We are trying to predict as
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accurately as we can where we need to put our apprenticeship and traineeship effort so that in three years’ time
we can respond appropriately to the needs of industry. However, unfortunately, it is not an exact science. We
therefore need to review our plan regularly to ensure that it remains current.
The member for Albany raised some issues about course fees and diploma courses. I think it is pretty important
that I address a couple of those issues. One of the comments made was that by 2017, it will be more expensive
per student hour to be enrolled in a certificate course than in a diploma course. The indicative course fee rate for
general industry training is $6.05 per nominal hour and is higher than the fee for a diploma and advanced
diploma at $6.02 per nominal hour. But, at a 3c difference, it is sitting at around the same cost of delivery. There
was also a claim that the 20 per cent loan fee is applied to VET FEE–HELP loans for government-subsidised
training. I want to make it clear that students who are doing government-subsidised training do not pay the
20 per cent VET FEE–HELP loan fee.
Mr P.B. Watson: I do not think I mentioned that.
Mrs L.M. HARVEY: I think it was part of the dialogue, and it was included in some of the things the member
was saying, so I wanted to make sure that is on the record.
The diploma and advanced diploma course enrolments are charged at the diploma and advanced diploma course
fee rates. That is regardless of whether the course is included in the priority industry qualifications list. The
diploma in conservation and land management and the diploma in horticulture have strong enrolment numbers.
But it is important to note that the enrolments are charged at the diploma and advanced diploma course fee rates
regardless of whether the course is on the PIQL.
The member for Albany raised some issues around the diploma of early childhood education and care, which
I addressed earlier. The member also raised some issues around the Great Southern Institute of Technology. The
Great Southern Institute of Technology will be dropping a number of courses because of lack of student
enrolments. Colleges sometimes struggle to attract students to courses, and they have to respond to that. It is very
expensive to deliver these courses.
Mr P.B. Watson: Excuse me for interjecting, but for a lot of courses that is because people cannot afford to do
them.
Mrs L.M. HARVEY: The colleges also need to have a cohort of students to make engagement in the course an
enjoyable experience for the students. However, in the same context, courses also need to be sustainably
delivered by the lecturers and the institutes.
Mr P.B. Watson: I understand that. But people in the metropolitan area can go from one college to another.
For people in Albany, the next closest college is in Bunbury, or Perth, so they cannot do the course. The high
schools have a link-up with other areas. Albany Senior High School does some of its courses in conjunction with
Mt Barker and Denmark and other areas. I cannot see why TAFE cannot do the same thing so that people will
not have to send their kids to Perth.
Mrs L.M. HARVEY: It is important to look at the range of courses that the institutes are offering. There is
a diploma of sustainability, a certificate III in laboratory skills and a certificate IV in environmental monitoring
and technology. Although a particular college may not get the student numbers that would warrant the delivery
of those specific courses, there may be a range of similar courses to which we can direct students who have an
interest in a specific occupational area. Those students could then go into a course that the majority would see as
relevant to their area of interest, and also into courses that are part of our priority training areas. We are seeing
strong enrolments in GSIT in courses that are similar to the ones that have been dropped due to lack of student
numbers. So, there is a flow through, and often there is also some overlap in the delivery of certain courses in
particular subject areas.
The member for Midland claimed that arts courses are no longer being run at the Midland campus of
Polytechnic West. I would like to cover off on that. A certificate IV diploma and advanced diploma in applied
environmental arts was offered at the Midland campus of Polytechnic West in 2013. Those courses were
discontinued in 2014 because of declining student demand over the previous few years. Also, the accreditation of
those courses expired in May 2013, and that means that they can no longer be delivered by training providers.
When people see fee rises, the immediate assumption is that those fee rises are the reason courses are no longer
being delivered. Sometimes a range of factors go into the decision-making of the various training providers in
institutes that lead to the decision of councils and managing directors to no longer provide that course. It is not
necessarily always to do with course fees; sometimes it is to do with the interest, or local economies and a range
of other issues.
The member for Mandurah raised a number of issues. One issue related to students being given no warning of
course fee increases and some students being forced to discontinue their courses. I am reluctant to invite any
interjections while the member for Mandurah is not in his seat—I do not think the member will find this
[ASSEMBLY — Wednesday, 11 March 2015]
1063
controversial—but to cover off on that: the new fee structure was announced on 22 August 2013. That provided
time for students enrolling in semester 1, 2014, to understand the new fees. All students who enrolled —
Mr D.A. Templeman: If the minister reads my speech she will find that I said that many students were shocked,
when they went to enrol, about the costs they were facing. That was what I said. Even then, most of them, until
they turned up to enrol, were not aware of the vast differences in fee structures. That was the point I made.
Mrs L.M. HARVEY: I understand that. That is one of the vexing issues in the cohort of students we are dealing
with. Often, young people do not necessarily make their decision about the program or the course they are going to
enrol in until a very short time before enrolment. Notwithstanding the fact there was ample notification given, the
very nature of young people is that they do not necessarily spend a lot of time preparing for their enrolment and
doing the preparatory work with respect to fees—even simple things like transport; how they will get to the
institute. Part of the reason Future Skills WA has been constructed in the way that it has is that students will often
think they are interested in a particular area—which is great—but we really want to train students in an area that we
know will lead to employment. Ultimately, once they are employed, they can return to the training institutes and
complete additional programs in areas that are of interest to them. Value-adding to an educational curriculum vitae
is a fantastic thing. I would encourage anybody to take that on and consider it. All training is good training, as far as
I am concerned, but when it comes to state-subsidised training it really needs to be prioritised in the areas that will
allow people to go into the workplace and contribute to the economic future of the state.
I return to the fee structure announcement on 22 August 2013. That provided time for students enrolling in
semester 1, 2014, to understand the new fees. All students who enrolled before semester 1, 2014, were given
access to course fee maintenance for any units undertaken in 2014 to ensure students were not disadvantaged if
they had enrolled under a previous fee structure. The government has been working with students. We want them
to stay in the system. The institutes are doing whatever they can to assist students who may be having some
issues with paying fees et cetera. Payment by instalments is offered to students. A wide range of students take
advantage of that. Those programs are run through individual TAFEs.
An assertion was made by the member for Mandurah that course enrolments had dropped by 26 per cent. That
was probably based on Minister Hames’ statements in Parliament on the reduction in general industry training
for the July period. That might be where that figure came from. I quoted later in the debate that course
enrolments declined approximately four per cent overall and course enrolments in priority-industry training
increased by nine per cent. Those are preliminary figures. I am reluctant to put out figures that have not been
validated. The 2014 data is still not validated. It takes a little assessment and analysis before we are prepared to
put figures out into the marketplace, to ensure that it accurately reflects the state of training in this state.
An opposition member interjected.
Mrs L.M. HARVEY: That is usually released—it is either one or two quarters after the end of the year. I would
need to check that. Up until this point I have not been the Minister for Training and Workforce Development
when that data has been released. I understand that it would usually be released around midyear. I probably need
to get back to the member about that.
In my contribution last week I addressed some of the issues raised by the member for Kimberley. The member
raised a number of issues with respect to Aboriginal training in the Kimberley. The government has a very strong
commitment to try to bring Aboriginal people into employment. It has put significant investment into training
facilities in the Kimberley. It is important to provide the right kind of mentoring environment to Aboriginal
people, particularly people who may have been living in remote towns for a period before they came into the
training system. We are very cognisant of that fact. We are trying to work with agencies from the not-for-profit
sector to ensure we support those students to get them the best possible outcomes to lead to employment. It is
a space that I feel very passionate about. I work with the Minister for Indigenous Affairs on some of those issues
to ensure we do everything that we can to bring Aboriginal people through the training pathway.
I acknowledge that in regional and remote areas the challenge is in the jobs situation. That is one area that we
engage in in remote communities and regional areas, to ensure that we are doing the best we can. Another policy
that was announced only last week was an increase in the travel and accommodation allowances for students in
remote areas. Part of the increase in those allowances also applies to lecturers. Sometimes the sustainability of
the regional and remote campuses is linked into their ability to retain full-time lecturing staff, for example. It
may be that we work with those institutes to look at the programs they need to offer and use that travel scheme to
fly a lecturer to deliver particular course content. That assists the institute in remaining sustainable in delivering
course content without necessarily retaining a full-time employee as part of it. There are opportunities for
colleges in regional areas to partner with some of the colleges in the metropolitan area, and using some
economies of scale in partnerships that way, to deliver a wider range of programs. That is a conversation that we
are engaging in with the department; around buddies, if you like, in trying to deliver a broad suite of courses
across the state.
Mr P.B. Watson: Do they not already do it?
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[ASSEMBLY — Wednesday, 11 March 2015]
Mrs L.M. HARVEY: They do, but do they do it as effectively as they possibly could? Are they doing it as well
as they could? I think we can always improve the delivery of courses in those areas. That is something that I feel
quite passionate about; I am a bit of a country girl myself.
When we look at course enrolments and industry cycles, there are always ebbs and flows with course
enrolments. Quite often apprentice and trainee enrolments will follow industry trends. Our challenge is to try to
have the enrolments ahead of the industry trend. That is why we do the economic modelling and engage with all
these other organisations to try to get the best data we can so that we can respond to that as a government and
ensure that we are channelling students into the areas that we need them. I have just received some information
from my adviser that the fully validated data on enrolments for 2014 will be available at the end of March, so it
is the end of the first quarter. It will be interesting.
Training is a really exciting space to be in as a minister. I was at the West Coast Institute awards night on,
I think, Monday—the nights all blend into one in this place—but it was very exciting to see some of the students
and acknowledge some of their achievements. One of the students who received an award at West Coast Institute
of TAFE was actually a Broome local who has been training at West Coast Institute in human services delivery
and has been through her program. It is a really good achievement and a very exciting outcome. One particular
individual is a foster mother of eight children who has gone back into the training sector. She figured that as her
twin boys are now eight years old, it was time for her to re-enter the workplace. I can only imagine how difficult
it must be for a person to take that step. What an amazing woman, being a mother to eight children—she is
a grandmother to seven! I think she is my age; she might have been a little younger—she is a little ahead of me
with her progress on that! But she is a huge contributor to the community, and she has now undertaken training
in a sector where she has a great personal story to tell, being a foster mother and a foster carer. She has a great
understanding of the needs of the area she is going into, and clearly a passion for it. She has already been
contributing to it, and now she is trained in that area. I expect she will have a long line of employers who want to
snap her up and get cracking and get her out into the workplace.
The student of the year at West Coast Institute was a young lady called Emma Grant. Emma is sensational.
She was a qualified teacher, if I recall correctly, who decided that her vocation was in early childhood education
so she has gone back through the training sector to increase her skills base in that early childhood space.
The member for Kimberley might be the recipient of her enthusiasm and passion because she wants to go into
regional Western Australia and deal with early childhood education and make sure that our children in regional
WA get the very best of early childhood education and the very best skill set they could possibly have to ensure
that they can move through our economy and have the very best opportunities afforded to them. It was a really
inspiring evening. Some employers who had been very proactive in the training space were awarded. It is not
always easy for employers to take on trainees and apprentices; they actually cost more money at the beginning
than they ever deliver. There is a cost to productivity in taking on apprentices and trainees, but the employers do
it out of a love of their industry and out of a love of being involved in the lives of those people who take on the
apprenticeships and traineeships. They are willing to bear the cost of that investment in a young person because
it is so inspiring for them when those young people graduate; the finalists who were awarded included plasterers
and electricians. One fellow went through the university system and has a Bachelor of Commerce, and he later
decided that food was his passion. He is now working at one of the eateries in Perth as a chef after going through
the training course at West Coast Institute of TAFE. The TAFE has formed really good partnerships with some
of the best eateries in town to ensure that its apprentices are getting exposure to the best menus and working with
chefs who are at the forefront of the creativity in the food space. A really interesting collection of people are
involved in the training space, from the lecturers, who received some awards as well, right through to the
students and the employers who engage in the space, and of course sitting behind that are our training institutes
and the Department of Training and Workforce Development. We are all really working together under the
banner of Future Skills WA to try to ensure that we get those apprentices, trainees and students moving into
training that leads to employment to contribute to the future benefit of all Western Australians and the future
economy of the state.
I hope I have responded to the concerns raised by members in this place. I expect that training is going to be one
of those topics that will continue to engage debate in this place. I will be keeping a watching brief on the effect
of the fees and making sure that Future Skills WA is achieving the policy initiative of government. Also, I will
be keeping a very close eye on any unintended consequences that may emerge. Another factor sitting out there is
the half-year cohort. A lower number of students have been graduating through the school system, which will
then obviously result in a lower number of students moving through the training system. We need to have a look
at the impact that will have on not only the sustainability of the training sector, but also the ability for us to
provide skills into the workplace. That is one of the other areas of interest that the government is keeping a very
close watch on.
In conclusion, I would like to thank members for their contribution to the debate. It has been really interesting to
hear the views of people with regard to training. I look forward to continuing to engage as Minister for Training
[ASSEMBLY — Wednesday, 11 March 2015]
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and Workforce Development and ensuring we have a sustainable, contemporary training sector that is relevant to
industry and provides industry competency.
MS S.F. McGURK (Fremantle) [5.57 pm]: I wanted to make a contribution to this motion as well. I am not
sure I will get much time, and I think after dinner we will be seeking to adjourn this debate, but I will commence
some comments on things with which I have had some involvement.
I was a member of the State Training Board for more than four years and participated in some of the debate,
along with the state government and employers, sitting around the State Training Board table; I was representing
UnionsWA, of course. I think this is an interesting time for the vocational training sector, and the minister
addressed a number of issues in her response. One issue is that at the same time as the entitlement model was
being adopted in Western Australia through the state government’s manifestation called Future Skills WA in
2014, the TAFE system was being burdened with quite significant funding cuts and staff reductions, including
a policy decision of this state government to embark on some very significant fee increases. Members who spoke
before me have outlined those increases and given practical examples, and the minister gave the example of
a diploma in child care costing about $10 000; there have been enormous fee increases. There has been the
coming together of the adoption in Western Australia of the entitlement model, the cuts to TAFE budgets across
the state, about 200 redundancies announced in the midyear review for the state training providers in
Western Australia, and at the same time massive fee increases for people undergoing TAFE courses in Western
Australia. I will leave my comments for a later time, but I seek leave to continue my remarks at a later stage.
[Leave granted for the member’s speech to be continued at a later sitting.]
Debate thus adjourned.
Sitting suspended from 6.00 to 7.00 pm
GREYHOUND RACING INDUSTRY — LIVE BAITING
Motion
MR M.P. MURRAY (Collie–Preston) [7.00 pm]: I move —
That this house calls on the Barnett government to undertake an investigation into greyhound racing to
ensure that —
(1)
there is no live baiting in Western Australia;
(2)
all animal welfare within the greyhound racing industry is maintained; and
(3)
appropriate safeguards are put in place to eliminate any future live baiting in
Western Australia.
I will be talking about an investigation into greyhound racing to ensure that there is no live baiting in
Western Australia, all animal welfare within the greyhound racing industry is maintained and appropriate
safeguards are put in place to eliminate any future live baiting in WA. However, before I get into that side of it,
we must remember that there are 2 000 participants in the WA Greyhound Racing Association and the industry
was worth approximately $71.6 million in 2012. In 2014, the Western Australian Greyhound Racing Association
conducted 3 582 races at 306 meetings, with 27 605 racing opportunities for 1 813 individual greyhounds. That
is a remarkable number of dogs that are specially bred and highly trained animals. However, what concerns me
is the Four Corners vision of live baiting. It is absolutely appalling. It sickened me to see that and what was
happening there. The facilities, such as the tin sheds, were not up to standard. We would not normally put
a finely tuned animal over the training track in the vision that I saw. The track had divots full of water. It was
a clay base. It was something that I had never seen anywhere. People who say they respect and love their animals
would never put their dogs through training on that track. The outrage was felt Australia-wide and inquiries are
still going on. The resignations, from the board down, in the racing industry on the east coast have impacted
right the way through.
I have no evidence of live baiting in Western Australia, although there has been some talk that it may have
happened. Of course, there are always a few people in every industry who try to outsmart the rest, whether that is
in gallops, trotting or greyhound racing. Even in soccer and football, people try to skew the result. To think that
people would try to gain an unfair advantage through live baiting is just beyond me. It is just beyond me that
those animals were pulled around by a human being while the other dog was tugging at the other end of the bait,
tied to lures, so that when they caught the lure they were able to tear the animal apart and get the blood running.
I do not know whether there is any proof whatsoever that live baiting makes a dog run faster because most times
they are at their absolute limits.
[Quorum formed.]
Mr M.P. MURRAY: I will see how quickly I can drive them out again!
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[ASSEMBLY — Wednesday, 11 March 2015]
On a more serious note, we saw what happened in the industry when—I would not say corruption—a blind eye
was turned to animal welfare issues. Those members who were here at the time of the Gallop government will
remember that that government introduced the bill that led to the Animal Welfare Act 2002—something that was
well received. At the same time, a petition on the issue of animal welfare was presented to the house by, I think,
the member for Rockingham with—someone might correct me if I am wrong—over 20 000 or 30 000 signatures.
Animal welfare is a major issue within the community, and we have to get out there and make sure that the
community has faith in, and that there is security within, the greyhound industry. That is very important;
otherwise the industry may as well be shut down. It probably should be shut down if no thought is given to the
welfare of the animals. It is very important.
As I look around my town and hear the gossip, I believe that some inducement was given to people to come
forward if they knew about live baiting in the greyhound industry. I have not heard of that inducement being taken
up. I hope that is indicative of what is happening in the industry. In saying that, Racing and Wagering Western
Australia has certainly been on the front foot and has worked very hard in the industry. The major steward for
greyhound racing, the general manager racing integrity, Denis Borovica, has certainly been on the front foot.
However, that does not mean that we should not still be looking at other ways to ensure that the industry is
100 per cent squeaky clean—it should be 100 per cent, not 99 per cent, clean. The industry should be nothing other
than 100 per cent clean, because if it is not, it will bring itself down. To be honest, I should not be standing here; the
industry should be standing up and saying that it is 100 per cent clean. It should not be RWWA or other groups
around the place such as the RSPCA; the industry itself should be saying that it is clean, because if it does not, it
will be absolutely soiling its own nest. That is very important for the welfare of the animals.
Some of the other integrity that comes to the fore is that RWWA has a welfare policy and works very hard at
homing retired greyhounds. I know that several members of this house own retired greyhounds. At times there is
an oversupply and then dogs are retired. It is very difficult to house them all, but if the work is done to ensure
that there is some integrity within the industry, that is well and good. These days we see a lot more greyhounds
being walked as pets, and that is a tick for the industry itself. I think that what happened in the greyhound
industry on the east coast shows that we should have an independent inquiry and an animal welfare group to
oversee groups such as RWWA from time to time, so that they keep their integrity, as the Corruption and Crime
Commission does with other government departments, looking at the bigger picture. We could have an oversight
body that would ensure that RWWA or people involved in greyhound racing are not too close to the action.
Some of the stewards on the east coast were too close to see what was going on and they allowed, perhaps not
deliberately, things to go on, or they turned a blind eye. That sort of thing will destroy the industry. I will keep
saying this: it will destroy the greyhound racing industry or any other racing industry, such as horseracing, if we
do not look after it. We have to work on this. The motion says that there should be an investigation so that we are
100 per cent sure that there are no problems within our industry. I have not heard about live baiting occurring
anywhere recently. Some people are saying that it occurs but they are not able to produce the evidence. That is
vital. It is all right to say that they have heard about it, they think it happens and it might be going on, but we
need a proper inquiry to ensure that those “might haves”, “could have beens” or “I heards” are looked into to
ensure that the industry is aboveboard.
I move on to the greyhound industry and the welfare of animals. People have different views about the welfare
of animals. It is unfortunate when an animal is severely hurt, but sometimes it is far better to euthanase that
animal—as much as it hurts. It is far better for the animal to be removed from the scene so they do not have to
suffer from the injuries that they received, through no fault of their own, whether as a result of a track fall or
a training gallop. In some people’s eyes, euthanasia is wrong, but I believe it is the best way to look at it.
Although my pet dog was not a racing dog, it got to a stage where he had to go. Even though it breaks your heart,
it is far better for the animal if it is put down. Sometimes I wonder whether we will be strong enough to debate
euthanasia in this house. I do not think it will happen for a while, but we can look at it in the same terms: we do
not like to see people suffer. We do not like our animals to suffer, yet we are allowed to euthanase animals.
I move forward. I believe we should expand the animal welfare group so that we have not only an oversight body
and a specific industry group to look at greyhounds, but also a group that looks at animal welfare in a broader
sense. At the moment, it is spread across many different areas. If we ring a ranger, he will tell us to phone the
RSPCA and then the RSPCA tells us to ring the Department of Agriculture and Food. We go around in circles.
That happens with issues relating to all animals. It is very difficult to get someone to make those hard decisions.
In some cases the police are the last people to come along and then a major inquiry occurs if we need to shoot an
animal and put it out of its misery after a car crash or something like that. I am looking at the bigger picture in
the greyhound industry. We need to put funding towards an animal welfare group. Yes, we already put money
into the RSPCA. I do not have a problem with that. The view that I have heard from many people is that the
RSPCA tends to have a narrow focus. I am not saying that. I am saying that an animal welfare group can oversee
all the bodies to ensure that animal welfare is at the forefront when we consider greyhound racing and the issue
of live baiting. The industry is worthy of keeping going. Having Racing and Wagering Western Australia in an
[ASSEMBLY — Wednesday, 11 March 2015]
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oversight role has been good, and it is good to see that it reacted very quickly and changed some of the rules.
I will read one out —
1)
A person who:
(a)
uses in connection with greyhound racing or training any species of bird or animal
which is alive, whether as a lure or to excite a greyhound,
…
shall be disqualified for a period of not less than ten (10) years and shall also be fined not less than
$50,000.
That is good, but it is only applicable to the greyhound industry. We must broaden it and make sure that other
people are caught by it. In recent times I have noticed in the court system that magistrates have been very tough on
people who have not played within the animal welfare rules. There was a story on television last night about a guy
who tried to drown a lovely silky terrier. It is very upsetting that those sorts of things still exist in today’s society.
Within the structure I would like to see, the TAB should be part of funding a certain amount of the overall
welfare system. Many of the issues that will come before it will involve the gallops or the pacing industry, as
well as greyhounds. I do not see any problem with the TAB contributing to that. I thank some of my colleagues
who have suggested and supported that idea along the way. We should not go out there and spend a huge amount
of money to put another layer of red tape in the way. I am not suggesting that at all, but we need an oversight
body to see whether people are doing their jobs, similar to the Corruption and Crime Commission. If reports
come in, that group will get on to animal welfare, whether it be the RSPCA, a local shire ranger who has turned
a blind eye, government authorities or racing authorities. I do not have a problem; it is a bigger picture. We
should not be seen to be just singling out one small part.
As we mature in the industry, we must take all steps available to us. As we change our processes of bringing this to
light, we should be part of the system that says that we will not tolerate this at all. We must have a body that will
oversee that. I am not being critical of RWWA as such, but I want to see somebody checking the checker. We hear
criticisms of WA Police when it does its own internal investigations, because there is nobody from outside
involved. Those sorts of criticisms are directed at government and government ministers. Without absolutely
choking the place down, there is room for working within those groups in saying that we can do this better. It was
absolutely appalling to see what was on that Four Corners program, and I hope we do not see it again. If we do, it
means that we in this house have failed in our duty to not only the welfare of those animals but also society. We
have not been good enough to wipe out a barbaric action. It is nothing other than that. The people who may have
used these practices should hang their heads in shame; it is a practice whose time has passed.
Some people support the rehabilitation of the dogs. It is a new system. In many of the shows that we see in the
country now, there is always a stall with half a dozen greyhounds lying there. They are very gentle animals.
People pick them up as pets and domesticate them. They domesticate very quickly, which is surprising to me
because they are animals bred to chase.
I know there is not a lot of time and quite a few other members want to speak. I am asking for both sides of the
house to support this motion because I think only good can come of it. It has been very good to see other
members from both sides of politics asking what this is about. It is not just about beating the drum; it is about
improving the system and making sure we do not see the same things happen in Western Australia that have
happened on the other side of Australia. It is about making sure that every animal is treated fairly when they are
in that situation. The tin sheds and the training tracks that I saw on that footage belonged in a 1950s Smiley
movie. It was a step back in time. I was of the opinion, like many others, that those animals were housed cleanly,
with good bedding, getting nice runs and the whole lot. That was not the case in the footage that was shown on
Four Corners. To see a dog cowering on a concrete floor in the corner of its pen with one lump of rag is just not
on. Today’s world is well past that. If that industry across Australia, including Western Australia, continues in
that vein, I do not think it has a future. I am asking that we support an overview brought in by the government
and we look at all issues in Western Australia to make sure that there is not even one iota of mistreatment of any
animal. We must stop people using live baiting with the thought of getting an unfair advantage in the racing
game. Members here tonight may think this is just a political play. I am not here for the political play; I am here
to make sure that animals, not only the chasers but other animals such as kittens or pigs, are looked after in
welfare across WA.
MS L.L. BAKER (Maylands) [7.23 pm]: I would like to comment on what I consider to be an essential motion
for this house to debate. I am very proud that WA Labor has moved this motion tonight and that there are
a number of speakers. I am sure there are some on the government side who, if we had the time, would want to
contribute to this debate as well. Having said how proud I am that we are having this debate, I am sad that there
even has to be a debate on this issue at all. As the member for Collie–Preston said, when light gets shone in
places where we do not necessarily like to look, the level of cruelty that exists in our community is quite
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[ASSEMBLY — Wednesday, 11 March 2015]
astonishing. Many of us like to think these things do not happen and, like the member for Collie–Preston, tonight
I will relate an incident of live baiting that I was made aware of several weeks ago. I applaud the work of
Four Corners, which consistently turns out high-quality exposés into what are incredibly damaging and
emotionally fraught topics. Remember, Four Corners broke the story on the live export debacle several years
ago, which had massive ramifications and pushed major reforms to that sector. This exposé by Four Corners,
supported by the work of Animals Australia and Animal Liberation, has done a similar thing for this industry.
I am not an expert on greyhounds or greyhound racing, although I have colleagues who have them as pets and
who have far more experience of them than I do. I do, however, have a lifetime of experience in working
extraordinarily closely with a number of other animals, some of which are involved in the horseracing industry.
The house will be aware of my commitment to improving the welfare of animals in our community, and it is
from that perspective that I approach this subject. I want to put on the record a few facts that have come to light
since that Four Corners program. There are 20 000 greyhound pups bred every year in Australia, and of course
not all of them are suited to racing. It is quite different from the horseracing industry—I am looking at my
colleague the member for South Perth—in that it does not cost a lot of money to keep a greyhound. Some of the
ongoing expenses that the horseracing industry has to meet are simply not there, so that automatically increases
the appeal of greyhound racing to people who like racing, gambling and the racing industry. They are able to get
into greyhound racing in a fairly low-cost way, and in many respects that might be part of the issue we are
facing. It is a pretty low-cost industry to get involved in, unlike horseracing. Because of that, there is not the
same level of scrutiny in the greyhound racing industry. I am pleased to say that the horseracing and pacing
industry in Western Australia has taken some remarkable steps towards trying to regulate what goes on, and it
has also spent a lot of time and energy on funding adoption and rehoming programs for racehorses. The
greyhound racing industry has not been quite so quick to respond, and I think that Four Corners program sent
shivers down the spines of most Australians who watched it.
Of the 20 000 dogs that are bred for greyhound racing, 18 000 healthy dogs are killed every year. It begs the
question: why breed 20 000 in the first place, if 18 000 are going to be killed? Of those, 8 000 are puppies and
young dogs that never make it to the track, and the other 10 000 are dogs that are what is termed “retired” from
racing because they are too slow to win. Those dogs are often euthanased or killed by other means; euthanasia
tends to involve a vet expense, and I am not saying that everyone goes to that expense. If we want to use an
economic term that I loathe and detest using, though it will appeal to some, the “churn” rate in this industry is, in
my view, completely unacceptable in this century in a developed country like Australia, and certainly the state of
Western Australia. I do not think people want to see that kind of overbreeding and destruction of otherwise
healthy young dogs.
I know the ABC covered a story on, I think, the 7.30 Report a couple of years ago about the practice of
“bleeding” dogs that were not fast enough for the track; I know it was very prevalent in the horseracing industry
as well. The veterinarians involved who were interviewed on that episode of the 7.30 Report said that it broke
their hearts and that they hated Mondays because greyhound trainers would bring them dogs that simply were
not fast enough for the track, but were otherwise completely healthy, alert, bright-eyed and lovely animals, and
they would be forced to euthanase these dogs, but to bleed them out before they killed them. They used the blood
to inject into other dogs to build their systems. That practice is abhorrent, but that is what the 7.30 Report
reported on, only a couple of years ago. There are very many nasty edges to this industry. Any time we put
animals and mankind together and involve dollars in the middle of it, we are going to have problems; that is the
nature of the creatures, unfortunately.
The practice of bleeding was featured on the ABC’s 7.30 Report a couple of years ago, and quite frankly it did
not even cause a stir. I think I might have been the only person in Australia who saw the program!
Mr J.E. McGrath: I saw it.
Ms L.L. BAKER: The member did? It did not raise a big brouhaha and nobody went out screaming from the
rooftops, asking for the sport to clean up its act or to take steps to fix this problem. It took Four Corners, and
a very horrific program, to do that.
In the racing life of greyhounds, the dogs often sustain serious injuries, such as broken hocks and legs, and head
trauma. Up to 200 dogs are reported injured during official races each week in Australia. Some die from cardiac
arrest due to extreme physical intensity. On many occasions, the injuries are considered uneconomical to treat, so
the owners or trainers will have the dogs killed. On average, five dogs are killed during official races each week
in Australia as a result of greyhound racing. That is another statistic that we should not be proud of.
The member for Collie–Preston mentioned that he saw in the Four Corners program the condition of the pens or
kennels that are used for these dogs. Many of these dogs live their lives only to be released to race or train. They
are not socialised. They are pretty much ignored, except when they are used as a racing animal. Information from
rescue groups indicates that many of these dogs are underfed, possibly because they are kept on a restricted diet
to keep them at a lean racing weight. That is the case with racehorses, too.
[ASSEMBLY — Wednesday, 11 March 2015]
1069
Retirement for a greyhound in the racing industry is, as I said, basically euthanasia, unless the dog is lucky
enough to be adopted to a home. I will talk about that in a moment. The natural lifespan of a greyhound is
between 12 and 14 years. I wonder whether anyone would like to guess what the average lifespan of a greyhound
is in this industry. They should live to between 12 and 14 years, but they die at the age of five, because they are
killed. That is, again, an appalling statistic. Nine out of 10 dogs born into the greyhound industry never get to
live a full life. Although some former racing dogs go into breeding programs, even they are likely to be killed at
the age of five or six. As I have said, other dogs that are perfectly healthy are given to veterinarians for the
practice of bleeding, or to university facilities, where they may be killed for teaching purposes.
I want to talk now about the live baiting issue. The RSPCA in Western Australia has put out a $10 000 reward for
anyone who can come up with proof or can say they have seen this practice. I want to tell a little story. I have been
in correspondence with a veterinary nurse who is from down near Mundijong, in the member for Wagin’s neck of
the woods. She is retired now, so I feel confident talking about her. After the Four Corners story broke, she emailed
me and told me her story, which was that in 2002 or 2003—it was a while ago—she was at the Mundijong markets
on the weekend. A lot of live animals are sold at those markets. There was a man at the markets who was selling a
bunch of baby bunnies. What do we call a bunch of baby bunnies—a brace, is it?
Mr D.A. Templeman: A waste of space!
Ms L.L. BAKER: Thank you, member for Mandurah!
Mr D.A. Templeman: I’m not fond of rabbits!
Ms L.L. BAKER: Someone was selling a litter of six baby rabbits at the Mundijong markets, and this veterinary
nurse was watching as a client of the veterinary practice that she worked at—a greyhound trainer from that neck
of the woods—approached the person who was selling the rabbits and went to pick them up. So she walked over
and stood behind him and used his name and said, “I hope you’re not taking them home for live bait”, and he
said, “If you don’t want to know, don’t ask.” Using the camera on her phone, she took photographs of him
buying the bunnies. She also took photographs of the car and everything else she saw. She told me that she sent
the photographs to the officials who run the Cannington track, not to Racing and Wagering.
Mr T.K. Waldron: There was no Racing and Wagering WA in 2002.
Ms L.L. BAKER: There you go. She sent them to the Cannington track. That would be why the Department of
Racing, Gaming and Liquor say there have never been any cases prosecuted for this.
That afternoon, acting on this information, including these photographs, they visited the trainer’s property. When
they arrived, only two bunnies remained. The others had vanished. Because they did not see the trainer use the
bunnies as live bait, they could not ban him from the industry. But what they could do was fine him, so they
fined him substantially for using live bait. That was maybe 10 years ago. After happening once, one would be
a mug to think that it did not happen again. It happens. I have grown up in the horse and horseracing industry—it
happens. I have seen some shameful things. I am trained as an international steward to look at equality and
fairness in the sport, including things like doping and abuse. I have an international qualification. I know what
people do with animals when left unsupervised or when the industry is left to regulate itself.
In January 2015, Western Australian trainer Linda Britton was suspended for 18 months after pleading guilty to
doping dogs with anabolic steroids. Just days later, the industry in WA awarded her the title of WA’s number
one greyhound trainer. Members might like to think about that for a minute and ask themselves whether they
think that is justified. Is that an industry looking after its own interests? That is an industry that is highly
vulnerable. It is highly vulnerable now, and it will be even more vulnerable in the future as demands around
animal welfare increase and as people’s social morality increases. This industry is putting itself at risk.
I mentioned the greyhound adoption program—GAP. Another great group, Greyhound Angels, has gone through
the accreditation training. A friend of mine has a fabulous business called Houndstooth Studio, which
photographs animals. Last week, she photographed three dogs that had just been taken off the track. They had
been off the track for less than two weeks. They were in her studio in Mt Hawthorn. There were also day-old
chickens, tiny fluff balls, as well as tiny bunnies and other little baby animals. She photographed the three dogs
individually in the studio. I have the pictures of these dogs just lying. There is a little chick jumping up and down
on one’s head, pecking at its nose, jumping on its body and running up and down its back. The others have the
bunny snuggled up next to it, asleep. I am sorry, but these are not dogs that are naturally aggressive. The
government recently passed the Dog Amendment Bill that will stop greyhounds having to wear muzzles in
public once they have had the right training and are properly managed. Greyhounds are not aggressive dogs.
They are not dogs to be frightened of. These are sleeping, quiet, gentle creatures until they encounter human
beings. Things change slightly then.
Altogether, rescue groups rehome about 10 per cent of the 20 000 dogs that are born into the industry. That is
another bad figure. The Australian greyhound racing industry exports hundreds of greyhounds to supply racing
industries in other countries. Most of them will be killed after their racing days. One of the biggest markets is
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Macau. Its Canidrome racetrack does not allow any dogs to be adopted out. In 2014, Greyhounds Australasia
adopted a policy opposing the export of greyhounds to Macau, Vietnam and other countries that do not have
animal welfare laws, but breeders, owners and trainers still export dogs to these countries.
Australia is one of only eight countries in the world with a commercial greyhound racing industry, and Australia
has by far the biggest. Internationally, the industry is in decline. In the United States, greyhound racing is illegal
in 39 states. Forty-nine tracks have closed since 2001 and gambling on greyhound racing has dramatically
reduced. As somebody who has forever recognised the problems with and opposed gambling, there is a whole
other issue that relates to the whole industry of racing, gaming and wagering. I understand that is not the topic
for discussion tonight, but I think that an industry that is affiliated directly with gambling and making money,
and with a low-cost entry and a pretty low-cost exit, is an extremely vulnerable industry.
I end my contribution by endorsing what I have heard from the member for Collie-Preston tonight. Nothing is
more clear to me after years of working in this area than that the independence of oversight required to keep an
industry safe in this time is absolutely paramount. We cannot leave this in the hands of those who directly
benefit from greyhounds, racehorses, or performance horses in my discipline. As a state and community of
people who care about this—I know the government cares about this too—we really need to put the welfare of
these vulnerable creatures into the hands of an independent body that can give the government and community
advice on what is happening. That protects the industry from what we have seen in the past few years: the
practices of abuse, and the horror of the abuse being finally revealed to the community. An independent office of
animal welfare or similar could sit alongside the administration of the act, which can be done by the
Department of Commerce, consumer protection or police or, as it was, local government, but at the moment we
have a completely compromised situation because animal welfare is currently under the purview of the
Department of Agriculture and Food.
[Member’s time extended.]
Ms L.L. BAKER: The mission of the Department of Agriculture and Food should be to maximise the
commercial benefits from our agribusiness. It is a no-brainer. That is what it should do.
Mr M.J. Cowper: What about people who use dogs for hunting feral animals in forests in the same capacity?
Ms L.L. BAKER: I have not thought about that, but anyone who trains an animal—in this case a dog—for
attack, I think, should be treated very harshly, because they are definitely encouraging cruelty and going against
the Animal Welfare Act and preventing the animal from experiencing the safety and wellbeing it deserves.
They should be treated harshly.
Mr M.J. Cowper: Do you think we should outlaw hunting dogs?
Ms L.L. BAKER: Hunting dogs? Not personally. Is the member talking about golden retrievers that fetch
things, or water dogs?
Mr M.J. Cowper: No, I meant those dogs that they use for pig hunting.
Ms L.L. BAKER: I have not thought about it, really. I think any dog could be trained to attack, and I think we
have seen that. We had lengthy debates in this house during the passage of the Dog Amendment Bill in which we
aired all these views about the very, very narrow genetic code that separates a greyhound from a chihuahua, and
how very hard it is to prove that a dog is one particular breed versus another, and about the problems with pink
skin and almond eyes. A dalmatian has pink skin, but they are not necessarily known for their attack mentality.
It is quite confusing. I would not be prepared to make that kind of a statement, but people who teach an animal to
hunt another animal under very, very bad conditions and illegally should be dealt with harshly. The
Animal Welfare Act has provisions to do this; it is just not being enforced at that level. The act is there and it
should be enforced, but it has not been.
As a final plug for the solution that the member for Collie–Preston has put forward, an independent office of
animal welfare would help the industry retain a semblance of honour. It would at least allow the industry to show
that it is concerned about the way that animals are treated and it would mean transparency in what will be a very
fraught business to be involved in in the future.
MR W.J. JOHNSTON (Cannington) [7.45 pm]: I want to make a brief contribution on this motion and
endorse it. I will read the motion —
That this house calls on the Barnett government to undertake an investigation into greyhound racing to
ensure that —
(1)
there is no live baiting Western Australia;
(2)
all animal welfare within the greyhound racing industry is maintained; and
(3)
appropriate safeguards are put in place to eliminate any future live baiting in
Western Australia.
[ASSEMBLY — Wednesday, 11 March 2015]
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I have spoken in this place on a number of occasions in support of the government investing in the upgrade and
relocation of the Cannington greyhound track. It is important to my community. I have spoken before about the
number of spectators in the greyhound industry. About 4 500 people attend the Perth Cup. It is a slightly smaller
event, but a significant number of people come to the New Year’s Eve event at Cannington. They are the
two biggest dog crowds in Australia. There are about 85 casual jobs, as well as the full-time jobs, involved in the
greyhound track, and that is very important to the community that I represent.
It is unacceptable to think that there would be any live baiting involved in the industry in Western Australia.
As far as we know, currently there is no evidence of live baiting in Western Australia, but if that is being done, it
is totally and utterly unacceptable and it needs to be completely and utterly removed from the industry. I get no
direct personal benefit from the greyhound industry. As I have said previously, I attend the Perth Cup each year.
Before I came to Parliament, I went to dog race meetings as entertainment and to fundraise for different
community groups that I was involved with in the south eastern corridor. But it is totally unacceptable to all right
thinking people that there would be live baiting or any other cruel practice such as that.
I endorse the views of the member for Collie–Preston that holding an inquiry such as this is important. We have
seen the turmoil created in the industry in Victoria, Queensland and New South Wales from the failure of the
industry itself to regulate properly. We must make sure that nothing like that happens here, because, clearly, if
something like that happened here, it would be devastating to the industry. People who support the industry
should support an inquiry. People who support the industry should support a proper level of animal welfare
being overseen by an outside body. I think the proposal by the member for Collie–Preston, the shadow
Minister for Racing and Gaming, that there be an independent body funded by the industry to ensure that animal
welfare is properly regulated is a great idea.
I have had contact with people in the industry who wanted to ring me and congratulate me for standing up for the
Cannington track, and I was happy to do that because it is an important facility in my community. Equally, I am
proud to stand in this place today and demand proper accountability for animal welfare in the industry. I very
strongly endorse the motion. I think it is appropriate. I think it is in the interests of the industry itself to ensure
that there are proper standards. The world is a different place from the past. Greyhounds are magnificent
animals. There are pictures of greyhounds on the walls of the tombs in ancient Egypt. They are a beast that has
been living with humans for a long time. They have co-adapted with humans, so it is appropriate that only the
highest standards of animal welfare apply in this industry. I note the member for Maylands’ comments about the
low cost of entry into the industry. That is one of the good things about the industry. Participants do not have to
be rich people from Mosman Park, or from South Perth, member for South Perth! It is not like the horse racing
industry; it is a working-class industry and that is great. That is one of the reasons the industry was able to keep
the track at Cannington.
I look forward to continuing my support for the greyhound racing track at Cannington. I was at the Perth Cup the
other night. This year we did not win, although the last time I was there, two years ago, I did win. If the
greyhound track is to remain at Cannington and the greyhound racing industry in Western Australia is to
continue to be successful, it will occur only if the animal welfare standards are maintained and this resolution is
part of that process. I strongly support the motion.
DR A.D. BUTI (Armadale) [7.50 pm]: I also rise to speak to the motion. It is often said that we can judge how
civil a society is by the way it treats its young, its old and its animals. Generally, we can say that Australia is
a civilised society when it comes to the treatment of animals. Many people in this chamber love dogs or other
animals and they hold a special place in the life of their families. Of course, when money is involved, sometimes
the temptation to exploit animals for financial gain comes into play. There is no doubt that the Four Corners
documentary of a few weeks back clearly showed that. When I raised this issue in my response to the
Premier’s Statement, the Leader of the National Party mentioned that we would want to be confident that in
Western Australia the practice of live baiting does not take place. The industry is telling us that it is not taking
place but, as the Leader of the National Party said, we want to be confident that it is not taking place. As the
member for Collie–Preston, the member for Maylands and the member for Cannington have stated, it is in the
industry’s best interest to seek an independent inquiry. I may have missed this but I have not heard the new
Minister for Racing and Gaming announce an inquiry or even indicate that he is contemplating an inquiry. I find
that very disappointing. His leader, the Leader of the National Party, interjected on my contribution to this issue,
and said that we would want to be confident, which seemed to imply that an inquiry should take place.
The content of the Four Corners documentary was appalling. I am confident that everyone in this house and the
other house would be appalled by what was shown. How could anyone condone the treatment inflicted on the
animals used as live bait? How could anyone consider that to be acceptable behaviour in a civilised society? Noone would agree that it is acceptable behaviour. As we know, some people believe it is acceptable behaviour and
they are the ones who have engaged in it. As representatives of the community, I am sure we can agree that it
should not be taking place in Western Australia. We hope it is not taking place, but we have no proof of that,
although that does not mean it is not taking place. An inquiry was held last year in New South Wales into the
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greyhound racing industry and no mention at all was made of live baiting. We would not have known that live
baiting was taking place. However, the Four Corners special, which was assisted by Animals Australia
investigator Lyn White, a former South Australian police officer, was able to show that the practice of
live baiting was taking place at two tracks in New South Wales. I therefore do not think that we can be confident,
just because the industry in Western Australia is telling us that this practice is not taking place, that it is not
taking place. I dearly hope it is not, but we need an independent inquiry. The minister for gaming may be the
new boy on the block as far as being the minister is concerned, but this is one of the first actions he should be
taking. I trust that the former minister for gaming, who is sitting there —
Mr J.E. McGrath: The former Minister for Racing and Gaming!
Dr A.D. BUTI: The former Minister for Racing and Gaming, sorry—would have considered an inquiry as the
appropriate measure. I hope so anyway. However, whatever his views may be, he is not now the minister
responsible. The current minister, who is in the other place, should be calling for an inquiry. I am actually very
disappointed by his silence on the matter. It is absolutely disgraceful. How can we have any confidence in the
industry when the minister responsible has not taken some action or made some positive response in regard to
the Four Corners special? It is appalling behaviour—absolutely appalling!
Also, the issue of live baiting gives the greyhounds an unfair advantage. If we look at the issue of gambling, it is
basically like doping in sport.
Mr W.J. Johnston: Assuming that it works.
Dr A.D. BUTI: Assuming that it works. It is a form of unfair advantage. The practice is unlawful, it is against
the rules of racing and it is also a criminal offence. Surely an inquiry should be taking place. The member for
Collie–Preston also mentioned the issue of animal welfare in general. The member for Maylands has been
advocating for a number of years that we really need to consider the whole issue of animal welfare in
Western Australia. It is a complex issue, but I think the time has come when we need to look at establishing an
independent office of animal welfare that has a regulatory function in regard to animal welfare in
Western Australia. In any case, there should not be self-regulation of the greyhound industry in
Western Australia. When large sums of money, especially from gambling, are involved, we cannot have
confidence that unacceptable practices contrary to the spirit of the sport of greyhound racing and to the laws of
Western Australia are not being carried out. I strongly believe that we need that independence to take place, and
the Minister for Racing and Gaming should be on the front foot and at least have a conversation about the issue.
Not even a conversation is taking place at the ministerial level with the industry as far as I am aware. He may be
holding some discussions, but he has made no public statement as far as I am aware. The RSPCA was appalled,
of course, by the documentary. There has not been any evidence of live baiting in South Australia, but there have
been allegations of it. The RSPCA in South Australia stated —
“Self-regulation from our perspective is never a good thing and is generally not seen to be effective,
particularly when you have people making a living off the back of animals.”
That is a very crucial point that we must consider. When an income is to be made, when money is to be made
and when gambling is at stake, we have to have confidence that the industry is clean. From a personal point of
view, I do not support the greyhound industry because I think it is not a proper practice for animals. That is
a personal point of view and many people in Western Australia would disagree with me, but if we are going to
have a greyhound industry, it must be regulated properly. It should be regulated by the government, which
should set up an independent regulatory office to have the industry properly overseen and regulated. It should
not be self-regulated, because that Four Corners special should be a catalyst for at least a debate in
Western Australia. We are told by the industry that it is not happening and that seems to be the end of the matter.
That surely cannot be the end of the matter. We need an independent inquiry to tell us once and for all whether
the practices that we saw in the Four Corners special are taking place in Western Australia.
Debate adjourned, pursuant to standing orders.
CRIMINAL LAW AMENDMENT (HOME BURGLARY AND OTHER OFFENCES) BILL 2014
Consideration in Detail
Resumed from an earlier stage of the sitting.
Clause 3: Act amended —
Debate was interrupted after the clause had been partly considered.
Mr J.R. QUIGLEY: In an earlier answer about the need for this legislation, the minister said that there is
a database of cases upon which she relied to identify the insufficiency or inadequacy of the sentencing practices
of the judiciary of this city. She referred me to a database on the Department of the Attorney General website.
I have been looking on the Department of the Attorney General website to locate this database so that we can
[ASSEMBLY — Wednesday, 11 March 2015]
1073
look at those sentences against the assertions she made in this chamber. I have “Statistics” open on the
Department of the Attorney General, but there does not appear to be a database such as described by the
minister’s good self. I wonder whether the minister could take me to the database or make available to me the
database to which she referred.
Mrs L.M. HARVEY: I refer the member to the Department of the Attorney General website. Perhaps he might
need assistance in navigating that website because my advisers during the break simply went to the website and
downloaded the reports from the website. There is “Report on Criminal Cases in the Children’s Court of
Western Australia 2009/10 to 2013/14”, “Report on Criminal Cases in the District Court of Western Australia
2009/10 to 2013/14” and “Report on Criminal Cases in the Magistrates Court of Western Australia 2009/10 to
2013/14”. I suggest to the member that they are on the webpage under a subsection called “Reports” and they are
freely available to any member of the community who chooses to access them.
Mr J.R. QUIGLEY: Does the minister mind if we look at what she has printed, to which she referred? She has
printed it out; does she mind if I have a look?
Mrs L.M. Harvey: I have printed it out. I would prefer it if we could get some copies of the report made for the
member for Butler. Do I need to table those reports to do that?
The ACTING SPEAKER: No; that is fine.
Mrs L.M. Harvey: They are freely available through the website by navigating that webpage.
The ACTING SPEAKER: Could one of you stand, please?
Mrs L.M. HARVEY: For the benefit of members who are interested in accessing that web page, which contains
a wealth of information, they can go to the Department of the Attorney General website and access a range of
reports that are incredibly interesting on the status of matters that go through the court system and, I might add,
a range of other issues. However, I will have those printed for the benefit of the member for Butler.
Mr J.R. QUIGLEY: I will need to come back to that when I have had the opportunity of seeing it.
The ACTING SPEAKER: The question is that this part amends the Criminal Code. Member for Butler, your
comments have to be directed to the clause.
Mr J.R. QUIGLEY: I understood the minister’s answer earlier this afternoon to say that in the first year the
estimated cost for the government will be $13.92 million and by the fourth year that will rise to $42.3 million.
I now refer to the statement of the commissioner of the WA Department of Corrective Services,
Mr James McMahon, who said during the estimates hearings that it would put 206 adults and 60 juveniles behind
bars within four years at a cost of $93 million. That sum has not been provided for in the budget. Does the
minister agree that it is going to cost $93 million over the four years?
Mrs L.M. HARVEY: It is clear that the member for Butler was not listening to my response to the member for
Warnbro’s question earlier. That figure of $93 million was the approximate capital cost should a new detention
centre be required; however, we do not anticipate that. The cost that we have been given by the Department of
Corrective Services is based on 56 adult prison beds and 29 juvenile beds in the first year, and we have estimated
that on the average minimum sentence for adult repeat offenders increasing from 15 to 24 months and for juvenile
repeat offenders increasing from five to 12 months. It is also estimated that there will be a small increase in the bed
impacts arising from the 75 per cent mandatory minimum sentences for certain offences. Those costs are
$13.92 million in the first year, increasing to $42.98 million in the fourth year. But I caveat those as estimates,
because, as I said in my previous answer to the member for Warnbro, it is very difficult to try to ascertain the
deterrent effect of legislation such as this and the consequential change in criminal offending behaviour.
That said, member for Butler, although we have the costs and we have some estimates of an increase in
requirements for prisoner beds, we have had discussions about the reports that were used and the research that
was done in putting this legislation together and at the end of the day the government has put a policy to the
community. We have been elected on a mandate. We have made a decision as a government that we are going to
present this piece of legislation to the Parliament and enact it. That is our call and we have made that call based
on our consultation with the community and its request for us to take these steps. It is voting for us to take this
step and delivering us a mandate to implement this legislation. It is our call; we have made it; we stand by it.
Mr J.R. QUIGLEY: The minister talks about the mandate, which we respect. As I said before, and as the
minister has acknowledged, we have not spoken against it.
Mr C.J. Barnett: Barely supported. You frustrated this legislation throughout.
The ACTING SPEAKER: Member for Butler, you have the floor.
Mr J.R. QUIGLEY: I will take the interjection from the Premier.
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[ASSEMBLY — Wednesday, 11 March 2015]
The ACTING SPEAKER: Members, this is consideration in detail. We are considering clause 3—“This Part
amends The Criminal Code”. Questions in consideration in detail are to the minister. Thank you, member.
Mr J.R. QUIGLEY: The minister talks about the mandate requiring the amendment and why she sought the
mandate. In seeking the mandate, as I said earlier, now that the Premier is back in the chamber, the Premier said
that everybody knows that some judges are not doing the right thing.
Mr C.J. Barnett: I didn’t say that.
Mr J.R. QUIGLEY: He said that on TV. Has the minister discussed with the Premier which cases the Premier
had in mind when he said that the judges were not doing the right thing in meeting the community’s expectation?
Has she discussed that with the Premier?
Mrs L.M. HARVEY: As a cabinet and as a government we have discussed and debated this legislation and
settled on the legislation that we have presented to Parliament. We stand by the legislation. The government is in
agreement that this legislation is the right way to go in response to the election commitment that we made to the
community.
The ACTING SPEAKER: Member for Butler, I draw your attention to the fact that clause 3, which is what we
are dealing with, reads, “This Part amends The Criminal Code”. I bring you back to consideration in detail of
“This Part amends The Criminal Code”.
Mr J.R. QUIGLEY: May I address the Chair?
The ACTING SPEAKER: No, you cannot address the Chair.
Mr J.R. QUIGLEY: Okay. You have not called me out of order, so that is all right.
I have received a copy of documents from the databases that the minister printed out, which I had previously
read. Does the minister agree that these databases do not set out sentences in respect of any particular offence?
Mrs L.M. HARVEY: The member has confused me by saying that he read them. Previously he said that he did
not know where to get them from the website. I request that he clarify that comment. I do not think it is
appropriate for him to mislead Parliament and say that he has been presented with a document that he previously
acknowledged he did not know how to access through the website but he has read it and considered it when we
know we just handed it to him.
Mr W.J. JOHNSTON: Madam Acting Speaker —
The ACTING SPEAKER: Members, the minister has the floor. We are considering clause 3, “Act amended—
This Part amends The Criminal Code”. I am not going to deal with debate across the chamber about how we
debate it. Members need to concentrate on clause 3, “Act amended—This Part amends The Criminal Code”.
Mr W.J. JOHNSTON: Indeed, Madam Acting Speaker. I just wanted to seek the call.
The ACTING SPEAKER: You have the call, member for Cannington.
Mr W.J. JOHNSTON: I think the minister might have misunderstood the question being asked by the member.
The member asked whether there was a database of decisions of the court that underpinned the comments made
by the minister. The minister has referred him to a statistical summary report which the member had already
printed out. It was not a database of decisions. This is why there is confusion here; perhaps the minister did not
understand the question from the member for Butler. She was asked whether there was a database of sentences
that are examples of the statements the minister has used in urging us to support this provision. Clearly, it is not
the statistical report that the minister has provided to us; it must be some other document, and therefore it would
be helpful to the debate if the minister could direct us to the database of decisions, rather than the statistical
report that the member for Butler already had.
Mrs L.M. HARVEY: I think the member for Cannington will find that I said we did not have a listing of every
single decision of every single magistrate; we had a database that showed offences in groupings and sentencing
outcomes. That is what I said we had used as part of our consideration in doing the research work for this
legislation. When the member checks Hansard tomorrow, he will find that I said that that was what we had, and
that is indeed what this report is.
Mr J.R. QUIGLEY: In relation to the “Report on Criminal Cases of the District Court of Western Australia”,
I look at what I have been handed and I have read it before. I will go through it before I put the question and in
framing my question. The first particularisation is of case lodgements by offence; the second is case lodgements
by offence type; and the third is charge lodgements by offence type. The fourth table is charge lodgements by
offence type; the fifth table is criminal cases finalised by method of finalisation; and the final one is sentences
imposed. If I go to the last of those, the sentences imposed, it gives the number of people imprisoned; for
example, the number of people imprisoned for 2014–15 is given as 1 005. Does the minister agree that nowhere
in the “Report on Criminal Cases of the District Court of Western Australia” is any duration of sentence
mentioned at all? Does the minister agree with that?
[ASSEMBLY — Wednesday, 11 March 2015]
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Mrs L.M. HARVEY: If the member refers to page 7 of the report, he will find that it articulates exactly what
I said it would. It articulates groupings of offences and sentencing outcomes—serious offences of cases
receiving a custodial sentence.
Mr J.R. QUIGLEY: I will refer to one of the items, aggravated sexual assault. I am trying to find one that fits
within the current context.
Mrs L.M. Harvey: If you go halfway down the page, you will find one that is relevant to the legislation we are
debating—unlawful entry with intent, burglary, and break and enter.
Mr J.R. QUIGLEY: For unlawful entry with intent, burglary, and break and enter in 2013–14, 166 sentences
were struck. Is that correct?
Mrs L.M. Harvey: That is what the report says, yes.
Mr J.R. QUIGLEY: The report, however, does not give any indication of the duration of any one of those
sentences, does it?
Mrs L.M. Harvey: No, not this report.
Mr J.R. QUIGLEY: In relation to any of the offences listed there, the report does not give any indication as to
any length of any term of imprisonment imposed. Is that correct?
The ACTING SPEAKER (Ms J.M. Freeman): Member, you need to sit down, and then the minister will
respond. It is not done by interjection.
Mrs L.M. HARVEY: As previously stated, I have articulated what this report comprises and I have also clearly
articulated on a number of occasions that a range of reports from WA Police and the Department of the
Attorney General’s website were considered as part of the preparation for this legislation. If the member recalls,
several hours ago I discussed the fact that we had to manually go into individual cases to look at their sentencing.
It was a very complex procedure and the result of this interrogation helped us form the view that we need a new
offence of aggravated dwelling burglary because it was difficult to retrieve all the data relevant to the offences
we are targeting with this legislation without the creation of a new offence. We will come to that should we ever
get past clause 3.
The ACTING SPEAKER: I draw the member for Butler’s attention to standing order 179, which states —
Debate will be confined to the clause or amendment before the Assembly and no general debate will
take place on any clause.
The member may want to know that there are quite a few clauses to go.
Mr J.R. QUIGLEY: I put to the minister —
Several members interjected.
The ACTING SPEAKER: Members, the member for Butler has the floor.
Mr J.R. QUIGLEY: I put to the minister that the three reports she has referred the chamber to, having been
printed from the Department of the Attorney General’s website, do not help us determine whether the sentences
struck were too long, too short or good sentences. Does the minister agree that those reports do not help us?
The ACTING SPEAKER: Member, you need to sit down.
Mrs L.M. HARVEY: I feel I am being somewhat repetitive but, as I said, these reports informed us to a degree,
along with a range of other reports and research work, in forming this policy, taking this policy to the electorate as
an election commitment and bringing this legislation forward. It is a decision of government. We can debate the ins
and outs of different reports. We are a government that produces a lot of reports. We could go through a range of
individual reports or we could accept that it is a policy decision of government to proceed down this path.
The ACTING SPEAKER: Minister, you need to focus on the clause.
Mrs L.M. HARVEY: The policy is based on the confidence that we have that this legislation is consistent with
the commitment we gave to the community.
Mr J.R. QUIGLEY: I absolutely concur with the minister’s last point that this legislation reflects what the
community wanted when it voted at the election, which is why we are not opposing it. However, it still begs the
question whether there is any evidence that the judiciary was not passing sentences in accordance with
community expectation. We put these reports aside because they are not helpful as they do not mention any
particular sentence. The minister said she went to other reports about the length of sentences. We have agreed
that the Director of Public Prosecutions has a database of appeal decisions. I have printed them and I will go
through them as we get to individual clauses, but we are right back where we started. Apart from the appeal case
database, which represents only a small portion of sentencing law in Western Australia, are there any other
databases on the length of sentences for offences that were referred to in formulating this policy?
1076
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Mrs L.M. Harvey: I’ve previously answered this question a number of times and I don’t have a different answer
to give you.
Mr J.R. QUIGLEY: I have discussed this with the senior judiciary and they are at a loss because they say that
they cannot get the funding for any database. The judiciary is saying they cannot find the database —
The ACTING SPEAKER: Member, you have to —
Mr J.R. QUIGLEY: I am. I do not mind doing this clause by clause, and as I submitted to the Chair earlier, we
can do this whole exercise for each individual clause, which will take us an until next week sometime, or —
The ACTING SPEAKER: Good-oh.
Mr J.R. QUIGLEY: Good-oh? That is what the Acting Speaker (Ms J.M. Freeman) wants?
The ACTING SPEAKER: It is nothing to do with me, member. You have to say, “standing order 179,
relevancy of debate”. The question is that clause 3 stand as printed.
Mr J.R. QUIGLEY: The relevancy of debate is the formulation of the policy necessity to amend this part of the
Criminal Code, and I am exploring the factual basis behind the statements that advance the policy; that is, that
some of the judiciary are not doing the right thing by meeting community expectations on individual sentences.
So far, apart from the three cases referred to in the second reading speech, we have not heard any reference to
any case, so I am asking the government, given that I know of no database, whether it has a secret database that
it is keeping from the community and this Parliament. I am asking the minister: does she agree that, apart from
the Director of Public Prosecutions’ database on appellate cases, there is no database of first-instance sentences
across the jurisdiction? Does she agree with that?
Mrs L.M. Harvey: I’ve answered that question a number of times.
Mr W.J. JOHNSTON: What we are attempting to do here is to amend the Criminal Code. I wonder whether the
minister is satisfied that this legislation complies with recommendation 99 of the Royal Commission into
Aboriginal Deaths in Custody?
Mrs L.M. HARVEY: We are amending the Criminal Code as a policy decision and a decision of government.
Mr W.J. JOHNSTON: I understand that, because the minister has already given that answer to a different
question. That is not what I was asking. What I specifically asked was: does the minister believe that this
arrangement that the government is asking us to vote on complies with recommendation 99 of the
Royal Commission into Aboriginal Deaths in Custody?
Mrs L.M. Harvey: I’ve answered the question.
Clause put and passed.
Clause 4: Section 1 amended —
Mr J.R. QUIGLEY: There is an amendment to clause 4 on the notice paper standing in my name.
The ACTING SPEAKER: You have to move your amendment after clause 4.
Mr J.R. QUIGLEY: I thank the Acting Speaker; that is the clarification I was seeking. If I go here, and then
clause 4 is put —
The ACTING SPEAKER: I am assured by the Clerk that you can put the amendment after clause 4.
Mr J.R. QUIGLEY: Clause 4 inserts proposed definitions. I want to understand the policy behind this. Does the
minister agree that, under clause 4, for a person to be convicted of home burglary, it is necessary for the person
to actually, with some part of his or her body, enter the dwelling, as opposed to entering the property? That is,
someone who goes down the garden path and attacks a woman who is sunbaking by the pool is not captured by
this legislation, but someone who goes down the garden path and opens the flywire door and enters beyond the
flywire door, even with their hand, and attacks a woman who is sunbaking in the sunroom of the house, is
captured by the legislation. Are we at idiom on that?
Mrs L.M. HARVEY: I refer the member to the need to cross reference this with section 401(1)(b) of the
Criminal Code, which states —
(b) if the place is ordinarily used for human habitation but the offence is not committed in
circumstances of aggravation, to imprisonment for 18 years; or
The words “place is ordinarily used for human habitation” means that the threshold of the dwelling needs to be
crossed. Section 400(1)(b) of the Criminal Code defines “place” as follows —
place means a building, structure, tent, or conveyance, or a part of a building, structure, tent, or
conveyance, and includes —
[ASSEMBLY — Wednesday, 11 March 2015]
1077
(a) a conveyance that at the time of an offence is immovable; or
(b) a place that is from time to time uninhabited or empty of property.
We are not changing that definition of “place” with this amendment.
Dr A.D. BUTI: I refer to the term “aggravated home burglary”. Basically, what the minister is seeking to
capture in this bill is people who in the course of committing a home burglary commit an assault on a person, so
it is aggravated home burglary. That is defined in section 400(1) of the Criminal Code as follows —
(1) In this Chapter —
circumstances of aggravation means circumstances in which —
(a) immediately before or during or immediately after the commission of the offence the
offender —
There is then a list of things that the offender may have done. My question relates to time. What time period is
required in order to have a connection between the burglary and the circumstances of aggravation? Can the
offender commit the burglary and commit the assault five hours later? There must be some time period. I am
wondering what that time period is.
Mrs L.M. HARVEY: Section 400 of the Criminal Code, headed “Terms used”, states in subsection (1) —
circumstances of aggravation means circumstances in which —
(a) immediately before or during or immediately after the commission of the offence the
offender —
It then goes on to list a range of activities.
Dr A.D. BUTI: That is what I said in my question to the minister. I want to know what “immediately” means.
Immediately might mean two minutes, or it might mean 10 minutes. It might mean five hours. It is a serious
question. The whole issue here is a concurrence between the home burglary and the aggravation. That is why the
minister is seeking to impose mandatory sentencing. I want the Parliament to know and to send a signal to the
people of Western Australia about what is that time connection. What does “immediately” mean?
Mrs L.M. HARVEY: It states “immediately before or during or immediately after the commission of the
offence”. There is no specified time period in the Criminal Code. It is up to the court to determine whether that
circumstance of aggravation is consistent, and that is based on many years of history of case law.
Dr A.D. BUTI: The judges will not get any guidance from the minister about that. Let us turn to the definitions
of “adult offender” and “juvenile offender”. Of course, there is quite a difference between the penalty incurred
by an adult offender vis-a-vis a juvenile offender. The bill states —
The term adult offender means, with respect to a person convicted of an offence, a person who had
reached 18 years of age when the offence was committed;
This is a serious question. I am not trying to be tricky here. If a burglary is committed at, say, 11 o’clock, by
a person who is still only 17 years of age and that person then commits an assault after midnight, and if there is
sufficient time for the offence to be determined as “immediately after”, whatever that is, has that person
committed the offence as a juvenile or as an adult, because that will have a major impost on what sentence that
person will receive?
Mrs L.M. HARVEY: The onus is obviously on the state to present to the court the circumstances of the offence
and the circumstances of the birthday of that person, presumably assumed to be midnight. The brief of evidence
would be put together and the court would determine whether that offender would be considered an adult
offender or a juvenile offender for the purposes of this legislation.
Dr A.D. BUTI: The problem when we start imposing mandatory sentencing legislation is that all these
conundrums come up. Now the minister is leaving it to the discretion of the court to determine whether someone
is an adult offender or a juvenile offender. The legislation before us says that an adult offender will have
a certain mandatory sentence imposed and a juvenile offender will have a certain mandatory sentence imposed,
but the minister cannot tell us whether they are an adult offender or a juvenile offender. The minister’s answer
does not provide any indication of whether the person in the scenario I gave is a juvenile or an adult. The
minister says that the prosecution has to present the case, which is obvious, but the minister has gone down the
mandatory sentencing route by introducing this legislation so the onus is on the minister to determine, in the
scenario that I relayed, whether that person would be a juvenile offender or an adult offender, and whether
18 years of age is 18 years of age at midnight on the day they were born or the actual hour that they were born.
Mrs L.M. HARVEY: Ultimately, when the prosecution case is put together and the information is presented to
the court, if at that point in time we are asserting that this person should be treated as an adult offender or
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a juvenile offender, regardless of what date or the circumstances that it occurs in, we need to articulate that case
to the court and have the court determine whether this person in the particular circumstance the member referred
to is correctly charged as an adult offender or a juvenile offender.
Dr A.D. BUTI: Is the minister telling us that judges will have no guidance from Parliament in determining
whether that offender is a juvenile or an adult?
Mrs L.M. HARVEY: In that instance, the judge would be guided by their years of experience, precedent and
the quality of the brief that has been put to them in the context of the charges that have been laid against the
offender.
Ms M.M. QUIRK: Minister, if I could just go back to the point the member for Armadale raised, which was the
meaning of the word “immediately” in the context of that clause. The minister’s response was basically that the
court would decide, but of course decisions have to be made prior to it going to court. There has to be a decision of
the police whether to charge with a particular offence, and, again, whether the Director of Public Prosecutions
thinks that those charges are important. Ultimately, the court may regard that term as ambiguous and refer back to
Hansard to see what the minister said. Is the minister saying that “immediately” has its ordinary meaning, or what
is the nexus between the home burglary and the other offending? The minister will appreciate that because this is a
case of a mandatory sentence being imposed, the court is likely to interpret that provision quite restrictively.
Mrs L.M. HARVEY: In the event that the hypothetical offender we are discussing was charged as a juvenile
offender, they would then come before the Children’s Court, and the Children’s Court would make the
determination as to whether that offender’s case should appropriately be heard in that court or in another
jurisdiction. Courts make these decisions all the time based on the merits of cases put before them.
Clause put and passed.
New clause 4A —
Mr J.R. QUIGLEY: I move —
Page 3, after line 25 — To insert —
4A. Section 27 amended
After section 27(2) insert:
(3) A person suffering from a mental impairment as defined in section 8 of the Criminal Law
(Mentally Impaired Accused) Act 1996 who is not relieved of criminal responsibility
under subsection (1) or (2) for an offence under a provision listed in column 1 of the Table
is nevertheless not subject to a minimum sentence requirement under the provisions listed
in column 3 of the Table opposite that offence if, by reason of the mental impairment, it
would be manifestly unjust to apply the minimum sentence requirement to the person.
Table
Offence
provision
Description of Offence
Minimum
sentence
requirement
provision
s. 279
Murder
s. 279(5A) and (6A)
s. 280
Manslaughter
s. 280(2) and (3)
s. 281
Unlawful assault causing death
s. 281(3) and (4)
s. 283
Attempt to unlawfully kill
s. 383(2) and (3)
s. 294
Act intended to cause grievous bodily
harm or prevent arrest
s. 294(2) and (3)
s. 297
Grievous bodily harm
s. 297(5) and (6)
s. 320
Child under 13, sexual offences against
s. 320(7) and (8)
s. 321
Child of or over 13 and under 16,
sexual offences against
s. 321(14) and (15)
[ASSEMBLY — Wednesday, 11 March 2015]
Offence
provision
Description of Offence
Minimum
sentence
requirement
provision
s. 324
Aggravated indecent assault
s. 324(3) and (4)
s. 325
Sexual penetration without consent
s. 325(2) and (3)
s. 326
Aggravated sexual penetration without
consent
s. 326(2) and (3)
s. 327
Sexual coercion
s. 327(2) and (3)
s. 328
Aggravated sexual coercion
s. 328(2) and (3)
s. 330
Incapable
against
s. 401
Burglary
person,
sexual
offences
1079
s. 330(10) and (11)
s. 401(4) and (5)
A couple of things have happened in this debate so far, and the one that preceded it. Firstly, the minister, before
dinner, agreed with the Attorney General that the risk of injustice is increased by rigidity, and that there have
been high-profile campaigns based on particular cases that did not enable the measured consideration of
sentencing. We have already read the rest of the remarks so that they are all in context. When I asked the
minister what injustices or risks of injustice the Attorney General and the government were referring to, the
minister did not demur from what the Attorney General said; that is, there is a risk of injustice with increased
rigidity—that is, mandatory sentencing—but the government had made a call that there was also, in its view,
injustice to victims and it was proceeding regardless of the government’s view that rigidity increased the risk of
injustice. The honourable Premier of Western Australia, of course, publicly identified one of those areas that are
potent with the risk of injustice. They, of course, deal with those people burdened with mental illness. In that list
of mental illness we would include—section 27, minister —
Mrs L.M. Harvey: I have it, thank you.
Mr J.R. QUIGLEY: That list of mental illness, of course, includes that condition that is rampant amongst the
Indigenous community, especially the Fitzroy Valley; that is, foetal alcohol spectrum disorder. Of course, when
sentencing someone with mental disability in a very rigid mandatory regime, the risk of injustice is obvious, as
identified by the Attorney General of Western Australia, with whose remarks the minister concurs.
On 24 July 2014, News Limited published in its online publication PerthNow an article under the headline
“Coffee with Colin”, referring to the honourable Premier. The headline was “‘Humble’ Colin Barnett denies he’s
arrogant, but admits disappointment at poor opinion polls in Coffee with Colin”. The by-line is attributed to
Yasmine Phillips, a well-known and respected reporter in this city. That cup of coffee with the Premier was at
Gino’s in Fremantle, by the look of the photograph.
Mr W.J. JOHNSTON: I am impressed by the member for Butler and would like to hear further from him.
Mr J.R. QUIGLEY: Yasmine Phillips, the reporter, took the Premier to comments by senior Perth magistrate
Catherine Crawford. I might read into Hansard that part of the transcript on PerthNow —
Perth Magistrate Catherine Crawford recently said that she believes Foetal Alcohol Syndrome should be
considered a disability and a mitigating factor when you’re sentencing young offenders in the
Children’s Court. What do you think of that?
Point of Order
Mrs L.M. HARVEY: Is the member moving an amendment?
The ACTING SPEAKER (Ms J.M. Freeman): Yes.
Debate Resumed
Mr J.R. QUIGLEY: So that this reads in context in Hansard, Madam Acting Speaker, I must go back to it; I am
sorry. The question put by PerthNow to the honourable Premier was —
Perth Magistrate Catherine Crawford recently said that she believes Foetal Alcohol Syndrome should be
considered a disability and a mitigating factor when you’re sentencing young offenders in the
Children’s Court. What do you think of that?
1080
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The Premier replied —
Well I think it is. Foetal Alcohol Syndrome, which can result in a severe mental impairment, and
therefore that mental impairment is considered by judges and magistrates in sentencing. It is treated no
differently—it is basically a disability, probably one of the saddest disabilities you can imagine that
a child is damaged before even being born.
I was impressed by the Premier’s response to the comment. That comment is really the air beneath the wings of
this amendment. When this amendment appeared on the notice paper and this matter first came before
Parliament, a dorothy dixer was put to the minister about Labor’s proposed amendment in relation to people
burdened with mental illness. The minister replied that this would be a get-out-of-jail-free card for every
methamphetamine addict who could simply say that they were on methamphetamine and were therefore
mentally impaired, so the mandatory provisions of the bill would not apply. The Attorney General was asked
about this and he gently demurred. The minister then came back into the chamber and made a clarification
because, of course, that cannot be the case. The criminal law specifically deals with intoxication in the next
section. Of course, being high on alcohol or methamphetamine is intoxication, and the criminal law specifically
provides that intoxication does not provide a defence to any charge. The minister returned to the chamber, and in
her explanation backtracked from that untenable proposition that intoxication or methamphetamine could give
a get-out-of-jail card to anyone.
Mr D.A. TEMPLEMAN: I am extremely interested in this line of thought and I would like to hear more.
Mr J.R. QUIGLEY: The minister returned to the chamber and then gave an explanation that is also
unsatisfactory in the sense that it does not reflect the true nature of the law. The minister then took the chamber’s
attention to section 27 of the Criminal Code, which provides that when a person is insane and does not
understand the nature of his or her actions by reason of insanity or by reason of that mental illness, and cannot
control his or her actions or does not understand that what they are doing is wrong, the person is to be found not
guilty. Therefore, the Premier could not be referring to insanity in his comments because we are talking about
sentencing, and sentencing can follow only upon conviction. This, of course, has been acknowledged by the
Court of Appeal in myriad cases. One of those cases I will refer to is the case the minister took us to, although
she wrongly encapsulated it in her response to the second reading debate. I am referring to the case of Thorn,
which the minister said was a case involving foetal alcohol syndrome. I am now referring to that part of the
judgement in Thorn v The State of Western Australia [2008] WASCA 36, delivered on 28 February 2008, under
the heading “The medical reports before the learned sentencing judge”. I will paraphrase this. In Thorn’s case,
Thorn was diagnosed as suffering from schizophrenia and organic psychosis. At paragraph 16, the court notes —
Dr Goria said, in his report dated 25 November 2004, that the appellant suffers from organic psychosis and
a moderate cognitive deficit as a result of his sustaining a severe head injury in … a trail bike accident.
At paragraph 18(d), the court notes —
Despite appropriate treatment and abstinence from illicit substances, the appellant has ongoing
symptoms. He has significant psychiatric issues, which need to be addressed.
This was a person who had significant psychiatric issues but not to the level that would have him declared insane
under the definition of “insanity” in section 27 of the Criminal Code. This was put before the Court of Appeal
against the sentence that was struck by the sentencing court at first instance.
Mr W.J. JOHNSTON: I am very interested in the member for Butler and would love to hear from him further.
The ACTING SPEAKER: Absolutely.
Mr J.R. QUIGLEY: The sentencing judge at first instance was Judge John Wisbey. The minister will recall that
the sentence in this 1995 offence was struck in 2004. The Court of Appeal examined the impact that mental
impairment, short of insanity, would have on the sentence; that is, a person has been convicted because they are
not insane but nonetheless burdened with a significant mental illness. The point I am making is that the court
recognises that a category of offenders fits between mentally healthy people and people who would be found not
guilty on the grounds of insanity. What does the court make of that? The court refers to a long line of appeal
cases, and at paragraph 38 states —
In Orchard v The Queen [2004] WASCA 23 … there was evidence from a psychiatrist that an
offender, because of his ingestion of the drug, Interferon, —
Mrs L.M. Harvey: It is used for the treatment of hepatitis C and a range of other illnesses.
Mr J.R. QUIGLEY: Yes. What I am saying is it is not an illicit drug.
Mrs L.M. Harvey: No.
[ASSEMBLY — Wednesday, 11 March 2015]
1081
Mr J.R. QUIGLEY: It continues —
… was less able to exercise logical reasoning processes and to make rational judgments and choices.
The Court of Criminal Appeal said:
That necessarily reduced the applicant's moral culpability, albeit not … his legal responsibility.
The law accepts that, where a mental disorder has contributed to the commission of an offence,
the moral culpability of the offender will be lessened (and it may be appropriate to attach less
significance to either or both … general and personal deterrence) and that that should,
ordinarily at least, be reflected in … penalty imposed: R v Tsiaras [1996] 1 VR 398 at 400;
Lauritsen v The Queen (2000) 22 WAR 442 at 456–459; and R v Payne (2002) 131 A Crim R
432 at [40], [43]–[48] and [67] [18].
A long line of cases recognise that when an offender before the court is burdened with a mental disability, short
of insanity, his moral culpability will be lessened and that should be reflected in a lesser sentence. But it does not
end there, because the court’s lead judgement, written by much esteemed senior Court of Appeal judge,
Justice Michael Buss, stated at paragraph 39 —
Mr W.J. JOHNSTON: I am very interested in the member for Butler’s comments and would love to hear from
him further.
Mr J.R. QUIGLEY: I have gone to those cases that show that the court recognised that short of insanity, mental
illness can reduce moral culpability when that mental illness plays a critical part in the offence. There is a huge
important caveat at paragraph 39. The Court of Appeal of Western Australia stated —
39
The critical feature which must be established before a psychiatric condition can mitigate
punishment is a causal connection between the condition, on the one hand, and the commission
of the offence, on the other, which reduces the offender’s moral culpability in respect of the
offence. See Paparone [2000] WASCA 127; (2000) 112 A Crim R 190 [49] - [53],
per Murray J —
Mr Justice Murray is the former Senior Puisne Judge. Paragraph 39 continues —
T v The State of Western Australia [2005] WASCA 237 [87] - [89] …
In T v The State of Western Australia Justice Roberts-Smith, with whom the present President of the
Court of Appeal, her Honour Justice Carmel McLure, and Justices Steytler and Pullin agreed, said the sentence
would not be reduced on the basis of mental illness short of insanity unless a close causal connection between
the mental illness and the commission of the offence is demonstrated. The court is quite strict about that. They
turn to Thorn’s case. Thorn had obtained a weapon and a balaclava, or other some disguise, and had gone about
this offence. The court said that there was a degree of premeditation and planning, which would negate causal
connection between his psychiatric condition and the commission of the offence. In other words, he was not
being driven to it by his mental condition; he had demonstrated a rational ability, albeit sadly for the victim
a criminal rational ability, to plan the offence, his disguise and his getaway. So they just disregarded that and,
quite rightly, the court swept aside all consideration of his mental illness as irrelevant to the sentence. The
amendment that stands in my name addresses this very point. The purpose of this amendment is not to have
a get-out-of-jail-free card for those suffering mental illness, but where a connection between the mental illness
and the commission of the offence can be demonstrated, the mandatory provision should not apply and the court
should be able to exercise discretion in relation to the sentencing process, just as the Premier of
Western Australia said should happen when he said in that article that I referred to earlier —
… therefore … mental impairment is considered by judges and magistrates in sentencing. It is treated
no differently …
The Premier himself was recognising that where there is mental illness the court should take that into account.
I would like to further address the terms of the amendment standing in my name.
Mr D.A. TEMPLEMAN: I now understand the theme, so I would like to hear more.
Mr J.R. QUIGLEY: It is not that a defence counsel on behalf of an accused could establish that a person was
burdened with a mental illness and that there was that connection between the mental illness and the commission
of the offence, because without that connection the mental illness is irrelevant. I would like to explain why the
amendment standing in my name is a table. After consulting with the parliamentary draftsmen, instead of
repeating this amendment in each and every clause of the bill, it was easier to set out the clauses of the bill in
a table and then just have the one paragraph amendment so that it would apply to all of the clauses in the bill
before the chamber.
To avoid the mandatory term it is not sufficient to establish that the prisoner in the dock was burdened with
mental illness at the time of the offence and that there was this causal connection between the mental illness and
the commission of the offence, as pointed out as necessary in Thorn’s case, but the extra step, that by reason of
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the mental impairment it would be manifestly unjust to apply the minimum sentence requirement to the person,
so the court would have to be convinced that the person was mentally impaired, that there was a close causal
connection between the mental impairment and the commission of the offence, and, further than that, the court
would have to be satisfied that it is manifestly unjust to imprison on a mandatory basis that mentally ill person.
We agree with the Premier of Western Australia’s reported comments to Yasmine Phillips that it should be
considered by judges and magistrates.
I will give members an example of what can happen. Foetal alcohol syndrome is generally a spectrum disorder.
A person can have a severe or mild case. The features of the disorder are not only physical—the moonface, the
eyes and the things that we can see—but also cognitive, with repressed cognitive development. An 18-year-old
person could have the cognitive abilities of a 12-year-old person. A further feature of foetal alcohol spectrum
disorder is that the person, although not insane, is not socially adept and is very susceptible to suggestion and to
being led. As the Commissioner of Police has said on radio, often the aggravating circumstance in an aggravated
home burglary is that the burglary is done in company. That is the circumstance of aggravation.
We have an 18 or 19-year-old chap burdened with foetal alcohol spectrum disorder to whom it is suggested that
there is a stock of booze at Quigley’s house. He would be right in that regard because there is Campari and some
Heineken.
Mr P. PAPALIA: I would like very much to hear more from the member for Butler.
Mr J.R. QUIGLEY: I am very grateful to the member for Warnbro because he gave me the bottle of Campari
that is at my house that is the subject of this example. A 22-year-old offender says to an 18-year-old offender,
who is suffering from foetal alcohol spectrum disorder, “Let’s go into the house and steal his booze”, and they
do. In the process of this, Max—that is my champion miniature schnauzer, Madam Deputy Speaker—goes off
his nut like he does when visitors come, and I intercept one of these offenders as they are leaving the property.
The older offender punches me and breaks my jaw. That is grievous bodily harm. The young lad, the 18-year-old
who is burdened with foetal alcohol spectrum disorder, who has the cognitive ability of a 12-year-old and, by
reason of his mental disorder, is unable to resist suggestion—that is one of the sad features of this—under
section 7 of the Criminal Code, he is a primary offender and is charged with aggravated home burglary causing
grievous bodily harm, although did not touch me. He just got scared when he heard Max and fled. My son flees
from Max but that is another story. The older offender punched me in the jaw and we know from the case of
Newman, the Eagles footballer, and the case of Marley Williams, the Collingwood footballer, that punching and
breaking a person’s jaw is grievous bodily harm. Under this legislation, the mandatory term is 10 years. The
18-year-old, who has the cognitive ability of a 12-year-old and is unable to resist suggestion or being led, is
subject to a mandatory term of 10 years’ imprisonment without the court being able to take into account his
moral culpability in any way. That is not allowed to be considered.
Another case that I defended unsuccessfully many years ago—they say that lawyers only talk about their
successes but in this case I was unsuccessful—was a tragic murder. The Leader of the House might remember
this man. His name was Alec Brown. He ran a liquor store in Railway Parade, Subiaco, opposite the Subiaco
football oval, now known as Domain Stadium, or something like that. He was a strong man, and he lived on the
premises, so it was not only a liquor store but ordinarily used for dwelling. My client, George Vincent Meaney—
I will never forget that name—and two others went into the liquor store high on amphetamines. Even back in
those days, it was a problem. I forget the name of the amphetamine, but it was not ice. High on amphetamine,
they went in to rob the liquor store. Alec Brown, who was in his kitchen, because it was a dwelling, heard this,
got up and immediately charged at Vincent Meaney, who, in his drugged-out haze, discharged his weapon.
Alec Brown was the centre halfback for West Perth, and played for Western Australia against Victoria. He was
a strong man, and Meaney dropped him with one shot. The three were charged with murder, and the driver of the
vehicle that took them to the liquor store, who did not enter the premises, was also charged with murder under
section 7 of the Criminal Code, and rightly so.
Mr P. PAPALIA: I would very much like to hear more from the member for Butler.
Mr J.R. QUIGLEY: Convictions ensued, and I can remember that life terms were imposed. That was my first
involvement as a defence counsel in a murder case. The point is that in such cases, a person with a mental
disorder can be involved. I am using foetal alcohol spectrum disorder at the moment because it is so prevalent in
the Fitzroy Valley. The perpetrator says to that person “I’m going into the house to steal the booze. Would you
just keep a lookout for the coppers?” The 18-year-old with the foetal alcohol spectrum disorder agrees. As the
minister will confirm to the house, under section 7 of the Criminal Code, he is liable as a principal offender. He
is a party to anything reasonably foreseeable that happens during the commission of that offence. Once again, if
the offender goes into the house and assaults the occupant of the house causing grievous bodily harm, the
mentally impaired 18-year-old outside the house is liable as a principal offender, and the court cannot take into
account, not the fact that he was outside; that is irrelevant, he was a principal offender, but the fact that he is
suffering from a severe mental disorder that left him susceptible to suggestion and persuasion to stand outside
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the premises. I am not criticising the government because I know what an election campaign is like—I have been
to three or four of them. We start to get a bit punch-drunk after a few of them!
Ms M.M. Quirk: Four.
Mr J.R. QUIGLEY: Four, was it? Innaloo, Mindarie, Butler and Butler—I think that is right, yes.
In the hot crucible of an election campaign there is no room to explain these sorts of things; there is no room to
examine these sorts of things. They cannot be examined as we are examining them here in the chamber tonight.
Indeed, that is why beyond this amendment, it is Labor Party policy to have a sentencing council where the
community, judges and the prosecutors can all consider these things and make recommendations to the
Parliament. That has never been considered hitherto for people with a severe mental disorder, which I repeat
does not amount to insanity. I take the point the minister made when she corrected and clarified her misstep
about methamphetamine intoxication—intoxication on a drug—providing a get-out-of-jail-free card under this
amendment. I am not being critical. The law is complex and needs cool and thoughtful consideration. When the
minister, after consultation, doubtless with the Attorney General, came in here to correct her misstep, she took us
to section 27 of the Criminal Code, which provides a defence for insanity. We are not talking about insanity, we
are talking about the sorts of conditions referred to in the case brought before this chamber by the honourable
minister—that is, Thorn’s case—in which the court said that mental illness can necessarily reduce the moral
culpability of the offender —
Mr D.A. TEMPLEMAN: I wish to hear more from the member for Butler.
Mr J.R. QUIGLEY: In that case, the court said that mental illness can reduce the moral culpability of an
offender, albeit not the legal responsibility, and that is the very point. The court is saying that there are cases that
fall short of what the honourable Minister for Police is saying—that is, not guilty on the basis of insanity under
section 27. The Court of Appeal is saying that there are cases that fall short of insanity in which the person is
sane, is fit to plead guilty and pleads guilty, and the court accepts the plea, but is nonetheless burdened with
a mental illness or impairment that reduces his moral culpability and that should be reflected in the sentence
when a close causal link can be demonstrated between that mental illness and the commission of the events.
Under the amendment I have moved the extra step is added that the court has to say it would be manifestly unjust
to impose the mandatory term. That is not to say that we do not agree, and nor does the Court of Appeal say this,
that the person therefore should not go to jail for a substantial period of time—not at all—but the court can take
into account that mental illness when striking the offence. This is not Russia. This is not a totalitarian regime
where mental illness itself is used to incarcerate.
Having said that, one can look at some of the outcomes under the Criminal Law (Mentally Impaired Accused)
Act, such as the case of Marlon Noble. He spent a decade in prison, not for home burglary but for an allegation
of indecent assault for which, had he ever been convicted, he would not have been sentenced to more than
six months; but, because of his mental impairment, he spent a decade in prison.
As I say, this is not Russia, it is not China, it is Australia, and this legislation should reflect the principles we as a
community uphold—indeed, the principles that we commit our young armed personnel to fight to preserve in
this democracy. When a person is mentally ill, the court should have regard to that, rather than just thoughtlessly
inflicting a mandatory term. How could it ever be that a mandatory term could deter a person who is mentally
ill? How could that be?
It is for these reasons that I commend my proposed new section. It is not for reasons of political pointscoring, not
to try to undo the legislation and not to try to create a get-out-of-jail-free card on the Monopoly board: what is it?
“Get out of jail; do not pass ‘Go’ and collect a million at Park Lane”? It is not that sort of game; it is to ensure
that a court is able to take mental illness into account when sending someone to prison and graduating the term
of imprisonment, having regard to the person’s mental illness. For these reasons, I commend my proposed new
section to this chamber.
Mrs L.M. HARVEY: I would firstly like to correct some of the comments that the member for Butler asserts
I made. If the member for Butler goes back to what I said, I did not link the case of Thorn with foetal alcohol
spectrum disorder. I referred to the case of Thorn separately in response to some other comments that the
member for Butler made. The FASD case raised by the member for Butler concerned an 18-year-old with FASD;
the member for Butler asserts that that is an actual case, and I addressed that separately, so I just want to clarify
that I did not link Thorn with foetal alcohol spectrum disorder.
Some of the arguments mounted by the member for Butler were interesting, but with regard to section 7 of the
Criminal Code, the member for Butler referred to principal offenders in company for the purposes of aggravated
home burglary, and the fact that for the purposes of this amendment, people can be charged as principal
offenders if they are in company, even if one of them may have committed a more serious offence than the other.
A principal offender can be charged by way of association, but whether someone is a principal offender by way
of violent action or by way of association, they are still subject to the same tests as any other offender who
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comes before the court. The Director of Public Prosecutions’ prosecution policies would still apply and those
offenders would still need to go through exactly the same tests as every other offender, whether they have been
charged as a principal offender by way of association or not. As an example, with regard to the test of whether
the accused is mentally unfit to stand trial, the court would have its considerations at that point. In determining
whether the person was mentally unfit at the time of the commission of the offence, that test would also be
afforded to the principal offender by way of association and the test of section 27 would still stand.
A couple of things are unclear with respect to the member’s amendment. It is unclear whether the court, when
determining whether it would be manifestly unjust, is to have regard to the offender’s mental impairment at the
time of the offence, or to the offender’s mental impairment at the time of sentencing. If the person was decreed
to have a mental impairment at the time of the offence, the usual test in section 27(1) of the Criminal Code
would apply. Therefore, conceivably, the condition of an offender whose mental impairment was either not
serious or not being effectively managed at the time the offence was committed might have worsened by the
time the offender was sentenced. The amendment also uses the words “manifestly unjust”, and it is not clear
what the definition of those words would be, given that, as I understand it, there is no statute law in Australia
that uses this term, and the term has not been judicially considered in Australian statute. Therefore, for a range of
reasons, we will not be supporting this amendment.
Mr J.R. QUIGLEY: With respect, it has been considered in cases in which people are appealing against
conviction. They have to show not only that there was an error in law—for example, that the judge’s charge to the
jury was wrong—but also that the conviction was manifestly unjust. I know that the law is complex, and I am not
putting the minister down for not being a lawyer, but I want, for the benefit of the chamber, to go to the fact that the
term “manifestly unjust” is in the Criminal Code. If someone wants to appeal against a conviction, they have to
demonstrate not only that there has been an error of law, but also that if the conviction were to stand, it would be
manifestly unjust. It is a twin test. Someone cannot just go to the Court of Appeal in Western Australia, minister,
and say to the court, “In His Honour’s charge to the jury, His Honour made this error; therefore, the verdict should
be set aside.” The Criminal Code requires that the person who is appealing identify the error in the trial and
demonstrate to the appeal court that if the conviction were to stand, it would be manifestly unjust. That term has
been considered at length by both the Court of Appeal in Western Australia and the High Court of Australia.
Indeed, that was one of the tests that we had to pass in the Mallard case. We had to show not only that there had
been an error in the trial—that is, that the prosecution had failed to discharge its obligations of disclosure—but also
that by reason of that failure, it would be manifestly unjust to allow the verdict to stand. I am not nitpicking on the
minister for saying that “manifestly unjust” is not defined and is an airy-fairy term. That is a term in the Criminal
Code, and it has been, as I say, considered by both the Court of Appeal and the High Court.
As to the other proposition, namely, that the amendment does not make it clear whether the person is under
mental impairment at the time of sentencing or at the time of the commission of the offence, I could be derisory
in my response, but I shall refrain, because the minister would seek to argue the same, presumably, in relation to
section 27 of the criminal code. What is section 27 of the Criminal Code about? Is it talking about sanity at the
time of the commission of an offence or sanity at the time of sentencing? We know that section 27 of the
Criminal Code in relation to insanity is not guilty—at the time of the offence they did not know. If the person is
insane at the time he is presented to the court, that brings into play the Criminal Law (Mentally Impaired
Accused) Act’s “unfitness to plead”.
I return to the point made by the Court of Appeal in Thorn’s case and in a string of other cases to which I have
already referred. There are offenders who come before the court who, at the time of offending, were not insane,
and at the time of pleading were not so mentally impaired as to be unfit to plead and therefore the subject of
a term of detention, but nonetheless the court says their mental illness should be taken into account when striking
the offence because their moral culpability is that reduced by reason of illness.
Mr P. PAPALIA: I think the member for Butler is pursuing an interesting line. I would like to hear him
complete that line.
Mr J.R. QUIGLEY: If the minister says, “I want to preserve this legislation; I reject all you say; I don’t care”,
that is fine. The community will know that in relation to mentally ill people, the court should not have any regard
to that when imposing mandatory sentencing. That goes to the character of this government. The Labor Party is
not saying that the mentally ill should escape imprisonment. It says if there is a causal connection between the
mental illness and the offending, in the circumstances it would be manifestly unjust to impose a term of
mandatory imprisonment and the court should be able to take that into account. If the minister says that should
not happen in relation to sick people, I will accept that. The government has the numbers. That reflects upon the
character of the government and the character of the members who comprise the government. They say, “We
don’t care if a person is mentally ill at the time. Once again, not to evade punishment, but we don’t care about
that and the court should not have any regard to it.” That reflects upon the character of not only the government,
but also every member who makes up the government. It does not cast the Labor Party as soft on crime to say
that a person’s mental illness should be taken into consideration.
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I can recall being upbraided in this chamber by the honourable Premier for criticising the conduct of
Mr Troy Buswell, the former member for Vasse, who, at that time, was the Treasurer of Western Australia and
the Minister for Transport. After hitting six vehicles, he then evaded police and refused to cooperate with the
police investigation. I was upbraided by the Premier for not having regard to the then Treasurer’s mental illness.
Several of us on this side of the chamber were taken to task by the honourable Premier when we sought to
scrutinise the conduct of Mr Buswell in avoiding the police and avoiding interview by police. The reason we
were criticised: “The man is mentally ill; give him a break!” But if someone is an 18-year-old person, burdened
with foetal alcohol spectrum disorder at the time of the offence—not that they would get out of jail; not that they
would avoid conviction—the court is not even allowed to consider it. The character of this government is that, as
a princeling of the government, it is absolutely morally wrong to examine the conduct of the former member for
Vasse, transport minister and Treasurer. It is absolutely morally wrong and despicable to ask any question about
it because of his mental illness! But it is different when it comes to an 18-year-old young man who is mentally ill
through no fault of his own. As the Premier said —
… that mental impairment is considered by judges and magistrates in sentencing.
But the minister does not want what the Premier said to happen. The Premier does not and did not want us to
examine the conduct of Mr Buswell because of his mental illness! We were not even allowed to ask a question
about it because of his mental illness! I was not saying I was going to imprison him—I do not have that power
anyway—and I do not think he deserved imprisonment anyway. He clearly did not deserve imprisonment.
Mr P. PAPALIA: Madam Deputy Speaker, I would like to hear more from the member for Butler.
Mr J.R. QUIGLEY: But somehow I lacked integrity, somehow I lacked moral judgement and somehow
I lacked character because I questioned his conduct and did so in circumstances when the Premier said,
“Give him a break; he’s mentally ill!” That is not something that this government will allow to be taken into
consideration in relation to a mentally ill 18-year-old person. It will say, “No; give him the mandatory term of
10 years.” That speaks to the character of this government. When the division is called on this, it goes to the
character of all those people who vote against this amendment. It has to, because the Premier says we have to
take into account mental illness. Even if I say Mr Buswell went here, there, ping-ponged all over town like
a pinball machine, and then evaded the police —
Mr M.J. Cowper: He still had to appear before the judiciary. He still went to court like anyone else. He still
appeared in court, didn’t he?
Mr J.R. QUIGLEY: No, he didn’t appear in court, member.
Mr M.J. Cowper: He was penalised.
Mr J.R. QUIGLEY: He was penalised? That is interesting; we will get to that later.
Mr M.J. Cowper: He was penalised.
Mr J.R. QUIGLEY: Hang on; we will get to that later. He was penalised, but the member will recall that he
declined to be interviewed by the police.
Mr M.J. Cowper: As is his right, of course.
Mr J.R. QUIGLEY: As is his right. The member for Murray–Wellington is a former policeman, and I know
what the police say: “If you haven’t done anything wrong, you don’t refuse to speak to the police.” That is what
the police say all the time, and I am sure the member has said it in his career.
Mr M.J. Cowper: What do you say to your defendants when you represent them?
Mr J.R. QUIGLEY: Well, they were mainly police, as the member knows, and I would say, “If you don’t want
to get sacked, shut up, because I know what you’ve done.”
But we digress a little, member. I am saying that in this chamber when I raised the matter I was upbraided on
account of the man’s mental illness. We were not allowed to question or scrutinise his conduct because of his
mental illness. Here we have 18-year-old young offenders who are mentally ill because of foetal alcohol
spectrum disorder, and the court is not allowed to consider that. The court has to inflict a 10-year mandatory
term, even though the Premier, on another occasion, said —
… that mental impairment is considered by judges and magistrates in sentencing. It is treated no
differently …
And the courts are. If a person is a princeling of the Liberal Party, their mental illness has to be taken into
account. If they are a homeless, mentally ill young person—when I say “young”, I mean 18 years of age with the
cognitive ability of a 13, 14 or 15-year-old, as many of these people have, as the member for Murray–Wellington
knows because he served up there—that cannot be taken into account: “Ten years; take him down.” That is not
the Western Australia I know. It is not the Western Australia I love. It is not the character of previous
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governments, but it goes right to the heart of the character of this government. When the division is called, it will
go right to the character of those who vote no.
Mr W.J. JOHNSTON: I heard the minister say that she will reject the terms of the proposed new clause. I just
wondered whether the minister will provide an amendment to take account of the Premier’s comments when he
said that a judge or magistrate could take these matters into account when sentencing. What provision will the
minister move to take account of the Premier’s comments, or is the government going to walk away from the
Premier’s comments about options for people with mental disability during sentencing? We are not talking about
convictions, and neither did the Premier; we are talking about sentencing. Given that the minister will reject the
member for Butler’s words, and she has said that she will reject them not because of the policy issue, but
because of the terms used, I wonder what she will propose to ensure that there is no injustice for people with
mental disability, as outlined by the Premier in his interview with the reporter from PerthNow, or is she saying
that she will walk away from the Premier’s commitment? If she is going to take that second course and walk
away from the Premier’s commitment, I wonder whether she could let us know whether she will walk away
because she believes that she has some additional mandate from the election. I wonder whether she could let us
know when the question of mental impairment was discussed with the community during the election campaign
to give her that mandate. Of course, we all understand that the concept of a mandate is that a political party lays
out its agenda to the community before an election and then it has the privilege to act on that mandate after the
election. I was unaware of any occasion during the election campaign when the Liberal Party said that people
with mental disability would not be included in a special category. As the member for Butler has pointed out,
subsequent to the election campaign, the Premier had indicated that people with mental disability would be given
special privileges, as is appropriate, during the sentencing phase of a court’s decision-making process.
Mrs L.M. HARVEY: I will go back again to the new clause that the member has proposed. Just to be clear,
pursuant to section 26 of the Criminal Code—I will cross-reference with the Criminal Law (Mentally Impaired
Accused) Act 1996 because it is referred to in the proposed new clause—and section 10 of the Criminal Law
(Mentally Impaired Accused) Act 1996, everyone is presumed to be of sound mind and mentally fit to stand trial
unless proven to the contrary. The question of whether a person is mentally fit to stand trial is dealt with under
part 3 of the Criminal Law (Mentally Impaired Accused) Act 1996, and the definition in section 8 of that act,
which is referred to in the new clause proposed by the member, is consistent with section 27 of the
Criminal Code.
Under those two sections, it is determined whether an accused is mentally unfit to stand trial and the court
considers a range of factors: the ability of the offender to understand the charge, whether they are unable to
understand the requirement to plead to a charge, whether they are unable to understand the purpose of a trial,
whether they are unable to understand their right to exercise a challenge to the courts, whether they are unable to
follow the course of a trial, whether they are unable to understand the substantial effect of evidence presented in
the trial or whether they are unable to properly defend the charge. Whether an accused is mentally fit to stand
trial can be raised prior to the commencement of the trial. In addition, at any stage during the trial, the defence
prosecutor or the presiding judicial officer can again raise the issue of fitness to stand trial. The court can
determine whether the accused is unfit to stand trial. The court has options, including imposing a period of
custody to be served at a treatment facility, adjournment of the proceeding for a period of not more than
six months to allow the accused to have treatment so they are potentially fit to stand trial at a later date. The
court can determine when the accused is fit to stand trial and when the trial will commence and continue. There
are a range of tests. Those tests of section 27 of the Criminal Code are made in the context of the definitions of
“mental illness”, which means —
… an underlying pathological infirmity of the mind, whether of short or long duration and whether
permanent or temporary, but does not include a condition that results from the reaction of a healthy
mind to extraordinary stimuli;
There is also the term “mental impairment”, which means —
… intellectual disability, mental illness, brain damage or senility;
We have covered those in some of the scenarios the member for Butler covered in his hypotheticals. Once
a person’s ability to stand trial has been tested by the court, there is also a test of their soundness of mind at the
time of the commissioning of the offence. That test is also made in the context of the establishment of
a prima facie case—the tests the Director of Public Prosecutions can apply under prosecutorial guidelines about
whether it is in the public interest to prosecute that offender and, indeed, bring that case to trial. There is a range
of tests in place for the protection of offenders who fit the criteria of mental impairment or mental illness well
before they get to trial or before they reach a point at which a conviction can be handed down.
I put it to the member that if those tests exist and the court has determined the person is fit to stand trial, they
understood what they were doing and their mental impairment and mental illness at the commissioning of the
trial was not such that it rendered them unfit to go to trial, imposing a secondary test at the time of sentencing is
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somewhat irrelevant because the person should not even be before the court if the test of section 27 has been met
and the court has determined that the person is unfit to stand trial due to their mental illness or their mental
impairment.
Mr W.J. JOHNSTON: I think it would help the minister if I read out the provision. Although the contribution
she made is very interesting, of course, it is not relevant to the amendment. The amendment relates to the
Premier’s comments, referred to previously by the member for Butler, where he says “therefore that mental
impairment is considered by judges and magistrates in sentencing”. We are not talking about the question of
capacity to stand trial, which we understand, but that is not what we are discussing; we are discussing
sentencing. We are also not considering the question of guilt or innocence because that is a separate
arrangement, as the minister just outlined. We are going to the words of the Premier about the sentencing. We
are proposing a set of words that takes that into account. The member for Butler has constructed his amendment
to say that for a person with a mental illness, who is not deemed unfit to stand trial and is not deemed unfit to be
found guilty, there remains only the question of sentencing. So the person has been found fit to stand trial and to
be found guilty but, as the Premier says, there needs to be this arrangement to allow the question of mental
illness to be considered in sentencing. All we are doing with this amendment is exactly what the Premier of
Western Australia said would be done. The minister can see that. Although her contribution was very interesting,
and I am sure learned people such as the members for Butler, Armadale and Girrawheen knew that all before she
started, it was very helpful to me.
However, it has nothing to do with the amendment before the house, because the amendment already
acknowledges that some people are excluded from trial or from being found guilty because of mental
impairment. We are only going to the question of sentencing, and that is exactly what the Premier discussed with
PerthNow. That is what I have said. The minister referred to some technical issues with the wording. She talked
about the term “manifestly unjust” et cetera. Given that the minister thinks this amendment is technically
inadequate, what is her amendment so that she can make sure that she does not make the Premier out to be a liar?
I do not think he was lying on PerthNow, yet if the minister does not come up with her own amendment, that is
what she will be doing to the Premier: she will be creating him as having not told the truth. She will make his
words a lie. I do not think the minister wants to do that, so if not this, what? If the minister is not going to
support this amendment, what is her amendment that will be moved to allow judges and magistrates to deal with
the question of mental impairment during sentencing? That is, not fitness to stand trial or guilt or innocence,
which we have already dealt with. They are included in the Criminal Law (Mentally Impaired Accused) Act
1996, so we do not have to worry about that as it is in a different provision. We need to deal with the question
raised by the Premier in his interview with PerthNow about sentencing. So, if not this, the minister should tell
me what provision she will insert to take account of what the Premier of Western Australia said—he may be the
most unpopular Premier in the state but he is still our Premier—to ensure that the Premier’s words do not
become a lie?
Mrs L.M. HARVEY: The member for Cannington’s argument lacks logic. Should the accused offender be
tested by the court under section 27 of the Criminal Code and all the other sections of the Criminal Law
(Mentally Impaired Accused) Act and be deemed to be fit to stand trial and to have understood the consequences
et cetera of their actions at the time of the commissioning of the offence, the court then, by virtue of that decision
and by virtue of allowing that person to go to trial, logically assumes that that person is deemed fit and that it is
fit and proper for that person to be subject to the consequences and the sentencing regimes that the court will
impose. The tests for the court, in my view, are thorough and rigorous, and are there to protect those people
suffering from mental illness and mental impairment. Should the court deem that the accused offender is fit and
the trial should proceed, the court will also deem it appropriate to have the ability to impose the relevant
sentence. To be talking about a secondary test at the time of sentencing lacks logic because the tests need to
occur prior to the trial commencing. Why would the court determine that they should put a person suffering from
a mental illness or a mental impairment and who is unfit to stand trial through the rigours of a court process and
then have a secondary test at the time of trial? It lacks logic. The member for Butler implied that there is
a definition of “manifestly unjust” in the Criminal Code. It is not there. The term “manifestly unjust” is not in the
Criminal Code. If we look through some of the case law, we see that there have been references to the “manifest
inadequacy” of a sentence and a loose reference to the term “manifestly unjust”, but there is an absence of
authority to the clear meaning of that definition. In addition, it is generally in the principles of the manifest
inadequacy of a sentence and those sorts of criteria where the reference of those words may be grouped together.
There is no definition in the Criminal Code and if the member would refer me to it, I would appreciate the
benefit of his learned experience.
Mr W.J. JOHNSTON: Firstly, I want to go back to the point I made before. This will be the last time I make
this point because it seems to be troubling the minister. I do not know why it is troubling the minister because
the Premier has understood it. He made the point that judges and magistrates in sentencing take account of
mental impairment. That is the whole point of giving judge’s discretion; they are the ones who know the details
of the matter. A person might be found guilty but because of the particular circumstances of the case, such as
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foetal alcohol spectrum disorder, as the Premier discussed, the penalty will be different from the penalty for
a person who is found guilty but has no mental impairment. That is what the Premier explained with PerthNow.
I agree with the Premier’s comment that that needs to be taken into account. I cannot understand why the
minister is rejecting the Premier’s position on this matter and walking away from his plain words to the people of
Western Australia. I do not understand why the minister is doing that and why she has this problem with the term
“manifestly unjust”. Let us assume that these words are not defined. That does not matter, because they then
have their plain meaning. I appreciate that we are all getting to this point in our career based on the experience
that we all have, and I understand that the minister may not have dealt with courts and tribunals et cetera and,
therefore, the minister may not be aware of the way the courts deal with words such as “manifestly unjust”. If
words are not specifically defined, the courts will say—what is it?
Ms M.M. Quirk: Clapham omnibus.
Mr W.J. JOHNSTON: “The man on the Clapham omnibus”—that is the way it is determined. If the minister
does not want to narrow the meaning, she does not need to because the ordinary meaning of the words will be
used by the courts. Everybody who has had any interaction with the court system knows that that is the way
things work. I appreciate that that may not be the way that the minister’s career has developed and the minister
may not have understood that before she became a minister but now that she is a minister, I am sure she has been
advised of that. Therefore, that is not a proper criticism of the words here.
The question is whether the minister is saying she wants to walk away from the Premier’s explanation to
PerthNow that judges and magistrates should be given discretion in sentencing people who have
a mental impairment? The logical consequence of the minister’s argument in this chamber is that more people
will be found not guilty of crimes, because the minister is saying that there should be a lower test to exclude
them from standing trial. The minister is saying that a person who has the mental capacity to understand right
from wrong, but might have that issue dealt with in mitigation of their sentence, will now be found not guilty.
That is what the minister has just said.
Mr P. Papalia: There are mentally ill people in prison.
Mr W.J. JOHNSTON: There are hundreds and hundreds of mentally ill people in prison, because the courts
have determined that that is an appropriate sentence for the person in the circumstances. Yet the minister is
saying that they will not even get to be found guilty, that there will be actually fewer convictions; there will be
murderers who will be found not guilty because there is going to be a lower test than the one that currently exists
in the court system. I do not understand that. That is not the Labor way. The Labor way is to say that we do not
want injustice. It can be just to find somebody guilty despite their having a mental impairment. It is then
a question of what is the penalty. Just as the Premier said—we agree with the Premier on this matter—judges
and magistrates should be given that discretion in sentencing for people with a mental impairment. It is exactly
what the Premier said and I do not understand why the minister is rejecting the Premier of Western Australia in
this matter.
Dr A.D. BUTI: Part of the minister’s response to the member for Butler stated that there was no definition of
“manifestly unjust” and, therefore, that should be the end of the matter. But in answer to my question about what
was meant by “immediate”, the minister said that the courts know what that is so we will just go by that. It seems
to be okay that we do not have a definition in the Criminal Code for “immediate”, but if we do not have
a definition for “manifestly unjust” that is the end of the argument. Can the minister see the inconsistency there?
She does not worry about a definition for “immediate”, but she needs a definition for “manifest unjust”. I do not
understand why one term needs a definition and one does not.
I turn now to section 279(4) of the Criminal Code, which states —
A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless —
(a) that sentence would be clearly unjust …
I imagine that “clearly unjust” would equate to “manifestly unjust” so, therefore, it is in the Criminal Code and
one would therefore take judicial notice of what clearly “unjust” means. I do not think that what the member for
Butler is proposing is out of step with the general wording of the Criminal Code. Clearly “unjust” is there. Surely
one could argue that would equate to “manifestly unjust”.
Mrs L.M. HARVEY: I will go back to the stance that I have reiterated previously. We will not support the
member for Butler’s amendment for various reasons. However, the key reason we will not support the member
for Butler’s amendment is that the government believes that there is adequate definition in the Criminal Code
and the Criminal Law (Mentally Impaired Accused) Act to that test of section 27 of the Criminal Code, the
definitions that are in here for “mental illness” and “mental impairment”, plus that other test and safeguard for
people suffering mental impairment or mental illness, the Criminal Law (Mentally Impaired Accused) Act 1996
that operate as sufficient tests and safeguards for people with mental illness, that the court can determine whether
[ASSEMBLY — Wednesday, 11 March 2015]
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they should stand trial and therefore be subject to, should they be found guilty, the sentencing regime that
legislation prescribes. That is the government’s stance. That is the government’s position on this matter. We can
argue the nuances of language for hours, but our position will not change.
Ms M.M. QUIRK: Mr Acting Speaker (Mr P. Abetz), at the risk of sounding impertinent in your august
position as Acting Speaker, can I say that I thought Alston captured your likeness well.
I go to section 8 of the Criminal Law (Mentally Impaired Accused) Act because I envisage two situations in
which a person who would be fit to stand trial but it would be manifestly unjust to impose a mandatory sentence.
Under section 8 of the Criminal Law (Mentally Accused) Act, “mental impairment” means intellectual disability,
mental illness, brain damage or senility. I looked up the definition of “senility”. It means a severe form of mental
deterioration in old age. My immediate thought was that a person who has young onset dementia could not be
accused of being subject to senility so it would not come under the definition of impairment.
I turn to the second area that I want to address. I have a spare copy of an article from a journal that I can show
the minister, if someone could hand it to her.
The ACTING SPEAKER: Member for Girrawheen, only if the minister wants to receive it. If the minister does
not want to receive it, she is under no obligation to take it.
Ms M.M. QUIRK: Thank you, Mr Acting Speaker. I intend to read a passage from the Journal of American
Academy of Psychiatry and the Law of 2010, volume 38(3), pages 318 to 323. I thought it would be easier for the
minister to follow if she had a copy of it. It relates to frontotemporal dementia. I do not believe that it is covered
under the definition of “mental impairment”. The paragraph under the heading “Abstract” states —
Brain disorders can lead to criminal violations. Patients with frontotemporal dementia (FTD) are
particularly prone to sociopathic behavior while retaining knowledge of their acts and of moral and
conventional rules. This report describes four FTD patients who committed criminal violations in the
presence of clear consciousness and sufficiently intact cognition. They understood the nature of their
acts and the potential consequences, but did not feel sufficiently concerned to be deterred. FTD involves
a unique pathologic combination affecting the ventromedial prefrontal cortex, with altered moral
feelings, right anterior temporal loss of emotional empathy, and orbitofrontal changes with disinhibited,
compulsive behavior. These case histories and the literature indicate that those with right temporal FTD
retain the capacity to tell right from wrong but have the slow and insidious loss of the capacity for
moral rationality. Patients with early FTD present a challenge to the criminal justice system to consider
alterations in moral cognition before ascribing criminal responsibility.
Those people, by definition, were fit to stand trial. They suffer from an organic disease over which they do not have
control. I do not believe that the neuroscientist would believe these to be cases of brain damage. Therefore, it can be
acquired prior to the onset of old age. I think it is arguable that they may not come within the definition of mental
impairment. Surely it is manifestly unjust to apply a sentence to people such as that when their primordial
condition—the circumstances of the disease—clearly indicate that the level of culpability should be reduced.
Mrs L.M. HARVEY: The member presents an interesting conundrum. If by definition a person suffering from
early FTD would not fit the definition of mental impairment, they would also not be relieved by the member for
Butler’s amendment on the notice paper at the point of sentencing. I would suggest to the member for
Girrawheen that if they have developed a brain disorder of this kind, there is a possibility that they would be
considered under the definition of mental impairment that means intellectual disability, mental illness, brain
damage or senility.
Ms M.M. QUIRK: It is late in the evening; I was probably not as precise as I might have been. There are
two cases—young onset dementia and FTD, where there is a level of impairment that may or may not come
within the definition of section 8. There is clearly a lack of culpability for their actions but it would not be
sufficient for the courts to say that they should not stand trial; in fact, they would say that they would probably.
As the article says, these sorts of cases challenge the legal system but I do not think the minister can put her hand
on her heart and guarantee that we will not be presented with such challenges. The member for Butler’s
amendment is about having the means to deal with them effectively.
Mr J.R. QUIGLEY: I just want to make a clarification and a correction. I said that it was the term “manifestly
unjust”, whereas the appellant legislation uses the term “substantially unjust”. I am referring to the actual
legislation that provides that an appeal would be dismissed if there is no substantial miscarriage of justice. The
point is, however, that those terms are not defined. In other words, that is judicially interpreted. It is the
legislation of this Parliament in relation to the question of justice. I said earlier “manifestly unjust”, whereas the
actual legislation says “substantial miscarriage of justice” or “miscarriage of justice”, but those terms are not
defined. It is the same. When I say “manifestly unjust” in my amendment, that means plainly or obviously
unjust. The legislation says “miscarriage of justice” and “no substantial miscarriage of justice”, but those terms
are not defined. The system has not fallen over in the last 11 years because the legislation uses the words
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[ASSEMBLY — Wednesday, 11 March 2015]
“miscarriage of justice” or “substantial miscarriage of justice”, which are undefined. There is no difference here,
in the words “manifestly unjust to apply the minimum term”. The government is opposing this amendment
because those words are not defined, but what problem has it had in the past six years with the undefined
words—to quote the legislation—“substantial miscarriage of justice” or “miscarriage of justice”? There has been
no problem at all because that is the subject of judicial interpretation. We use the words “manifestly unjust”, or
plainly unjust. Their Honours know what that means.
Mr P. PAPALIA: Like the minister, I am not a lawyer. I am listening to the discussion of this amendment,
which I felt was quite reasonable, and trying to understand the minister’s rejection of the proposed amendment.
As I understand it, the minister is suggesting that there is no case in which someone deemed cognitively capable
of pleading, and capable of knowing right from wrong, having gone on to being sentenced by a judge, would
then be still deemed to have some degree of mental illness that should be taken into account as part of the
sentencing. Is that what the minister is saying? The minister is effectively saying that all the tests that exist
currently, prior to the person being charged and the court case taking place, are sufficient to completely eradicate
any requirement at all for this amendment. Am I right in that understanding?
Mrs L.M. HARVEY: I have said it before, and I will say it again. We are not supporting the member for
Butler’s amendment based on all the previous reasons that I have articulated earlier in the evening.
Mr P. PAPALIA: I understand and admire the minister’s persistence and certainty. She is clearly absolutely
convinced that she will not be responsible for any erosion of the justice system through passing this law. Would
it not be the case that there would not be any mentally ill people in prison, because all the current protections and
safety measures that the minister is relying on are already in place? And yet, mentally ill people are deemed
capable of pleading and capable of being sentenced, but where there is not a mandatory sentence the judge or
whoever is sentencing the person is capable of applying some degree of discretion to the length and nature of
their sentence. The minister knows as well as I do that there are many people in prison who have been sentenced
who are mentally ill. The system is incapable of dealing with them and identifying them on many occasions.
Nevertheless, I think the number that was given to me as recently as a couple of years ago was that around
14 per cent or 15 per cent of the metropolitan adult prison population were receiving medication for a diagnosed
mental illness. In early 2013, when I asked, there were 19 juvenile detainees in the system being medicated as
part of treatment for mental illness. I know mentally ill people end up in the prison system under the current
safety measures that the minister has identified render the amendment unnecessary. I wonder where the
minister’s certainty comes from. I wonder how the minister can be so certain that no mentally ill person, who,
really, in a just system deserves some degree of discretion by the sentencing judge, will be subject to
a mandatory sentence just because the discretion has been removed from the judiciary. What is the source of the
minister’s certainty?
Mrs L.M. HARVEY: There is a wide range of definitions of mental illness and a wide variance in the ability of
people to be responsible or not responsible for their actions under the realm of mental illness. That is why there
are tests in the Criminal Code for whether people with mental illness or mental impairment are able to stand trial
and be held accountable for their actions. That accountability also extends to being responsible and having the
court mete out the consequences as defined by legislation. From what the member is saying, his assertion is that
people with mental illness, which could include a range of matters, by definition should be exempt from the
consequences of their actions.
Mr P. Papalia: No, I am just saying that the judge should be able to apply some discretion when sentencing,
taking into account their impairment, whatever degree of impairment it is.
Mrs L.M. HARVEY: As I said, we will not accept the amendment of the member for Butler. We believe the
tests are already there in the Criminal Law (Mentally Impaired Accused) Act—I think it is; I am losing the
names of all my bits of legislation—so we will not accept the amendment. I find it quite offensive that just by
virtue of the fact that someone has a mental illness they are somehow linked to criminal offending that would
have them be subject to these mandatory penalties. A range of people are in prison for a range of offences and if
the court deems that someone is mentally fit and their mental impairment is not such that they can go to trial, that
test also deems that they are fit to have the appropriate sentence meted out, and that appropriate sentence under
this legislation we are proposing is in clauses 5 and onwards.
Mr P. PAPALIA: I will finish the line of questioning because clearly the minister is just rejecting the suggestion
that there should be some degree of discretion in the cases of people who suffer from some degree of mental
illness who will be capable of pleading and therefore capable of standing trial. In the event that they have
committed an offence, but their mental illness has played some part in them having committed that offence, the
minister is saying that that should not be considered with regard to the sentence, and I find that quite offensive
[ASSEMBLY — Wednesday, 11 March 2015]
1091
myself. However, the minister and her advisers are clearly confident that there will not be any injustice involved.
That is disappointing, but I will not pursue the matter any further because I think that probably sums it up.
Ms M.M. QUIRK: To go back to the purpose of this legislation, as I understand it the government’s rationale is
to provide a powerful deterrent so that particular offences for which there is great community opprobrium will be
minimised or reduced because people will be deterred from committing them. Is that correct?
Mrs L.M. HARVEY: If we go back to the second reading speech, we talked about hoping for this legislation to
achieve several things: that offenders who commit numerous home invasions involving seriously violent
offences will be incarcerated for longer periods; to deter such offenders and to ensure that such offenders are
kept out of circulation for longer; and to reflect community abhorrence of such offending.
Ms M.M. QUIRK: That was a long way of saying yes. Can the minister see that in the examples that I gave her,
such as the condition of frontal temporal dementia, the offender knows that what they are doing is wrong, but
they have no impulse control and that by virtue of their condition they effectively become sociopaths, lacking in
empathy? In those circumstances, deterrence is not going to work at all; the minister accepts that. They are
acting in such a way that they have no mental capacity to control their actions; does the minister agree,
hypothetically?
Mrs L.M. Harvey: Member, you’re basing your request of me on the flawed assertion that our only objective is
deterrence, and it’s not. I’ve already explained to you that there are a number of objectives of this legislation,
including ensuring punishment for people who commit these crimes.
Ms M.M. QUIRK: All right, so it is incapacitation—that is, locking them up so they cannot do it again;
deterrence; and an expression of the community’s abhorrence of these crimes. There are three purposes.
Mrs L.M. Harvey: Also keeping violent offenders out of circulation for longer.
Ms M.M. QUIRK: Well, that is incapacitation; I said that. I am trying to work this out: if someone with this
condition commits such an offence, they will be culpable under the Criminal Law (Mentally Impaired Accused)
Act, and stand trial, and they will be sentenced. However, there will be no deterrent factor because that person
acts in such a way that deterrence has no impact because although conscious, the person acts irrespective of their
conscience or their instinctive sense of knowing that something is wrong. In that context, deterrence is not
a possibility. In the second context, the offender will be incapacitated, but not necessarily for the period that the
minister is suggesting. Thirdly, does the minister not accept that the community in such cases might think that
there are some mitigating factors and that it is not necessary to have a mandatory sentence imposed as long as
the offender is incapacitated, is in prison, and hopefully has access to some treatment?
Mrs L.M. HARVEY: I will respond to the abstract of the article that the member provided us. It says that brain
disorders can lead to criminal violations and that people with early FTD present a challenge to the criminal
justice system. That does not automatically lead to an assumption that they are going to fail the test of mental
impairment or mental illness.
Ms M.M. Quirk: No, I said they wouldn’t. I said they would end up going to prison because they were fit to
stand trial. That’s exactly what I’m saying. They can’t help it.
Mrs L.M. HARVEY: The sad reality is that with legislation we cannot prescribe every conceivable permutation
and combination of every rare mental health disorder; we need to rely on those tests that are in the Criminal Code.
Once again, we can argue this point around and around, but our position on this amendment will not change.
Division
New clause put and a division taken, the Acting Speaker (Mr P. Abetz) casting his vote with the noes, with the
following result —
Ayes (15)
Ms L.L. Baker
Dr A.D. Buti
Mr R.H. Cook
Ms J. Farrer
Ms J.M. Freeman
Mr D.J. Kelly
Mr P. Papalia
Mr J.R. Quigley
Ms M.M. Quirk
Ms R. Saffioti
Mr C.J. Tallentire
Mr P.C. Tinley
Mr P.B. Watson
Mr B.S. Wyatt
Mr D.A. Templeman (Teller)
1092
[ASSEMBLY — Wednesday, 11 March 2015]
Noes (29)
Mr P. Abetz
Mr F.A. Alban
Mr I.C. Blayney
Mr I.M. Britza
Mr G.M. Castrilli
Mr M.J. Cowper
Ms M.J. Davies
Mr J.H.D. Day
Ms W.M. Duncan
Ms E. Evangel
Mr J.M. Francis
Mrs G.J. Godfrey
Mrs L.M. Harvey
Mr C.D. Hatton
Mr A.P. Jacob
Dr G.G. Jacobs
Mr S.K. L’Estrange
Mr R.S. Love
Mr J.E. McGrath
Ms L. Mettam
Mr P.T. Miles
Ms A.R. Mitchell
Mr N.W. Morton
Dr M.D. Nahan
Mr J. Norberger
Mr A.J. Simpson
Mr M.H. Taylor
Mr T.K. Waldron
Mr A. Krsticevic (Teller)
Pairs
Mr F.M. Logan
Ms S.F. McGurk
Mr M. McGowan
Mrs M.H. Roberts
Mr W.J. Johnston
Mr M.P. Murray
Dr K.D. Hames
Mr W.R. Marmion
Mr D.T. Redman
Mr B.J. Grylls
Mr V.A. Catania
Mr R.F. Johnson
New clause thus negatived.
Clause 5: Section 279 amended —
Mr J.R. QUIGLEY: This clause relates to section 279 of the Criminal Code, “Murder”. When we dealt with
clause 3 we talked about the philosophy behind the legislation and the perception that judges were not expressing
community expectation in their sentences. I want to make sure I understand the government’s position, minister.
The purpose of the legislation is at least twofold: firstly, to send a deterrent message to offenders that they face
certain terms of imprisonment; and, secondly, to send a strong message to judges about what is expected in terms
of sentencing. Is that a fair summary?
Mrs L.M. Harvey: I will refer the member back to my second reading speech. I think I have articulated that
previously. Rather than be repetitive, I refer the member to the second reading speech where I have articulated
the purpose of this legislation.
The ACTING SPEAKER (Mr P. Abetz): Minister, you should actually stand if you are speaking, unless it is
an interjection.
Mrs L.M. Harvey: I thought he was asking for an interjection.
Mr J.R. QUIGLEY: We will go back to the second reading speech and do it the long way.
Mrs G.J. Godfrey: Longer!
Mr J.R. QUIGLEY: I will go through the second reading speech page by page to ascertain the purpose. I was
trying to do it the short way. I was trying to distil the minister’s judgement down to a proposition that part of this
is to send a message to the judiciary to meet community expectations about sentencing. That is a fair distillation
of part of the minister’s second reading speech, is it not?
Mrs L.M. HARVEY: In the interest of expediency, I will read from my second reading speech to clarify. In
part, it states —
In making these amendments, the government is determined to ensure that burglars who commit
numerous home invasions, which can involve serious violent offences, are incarcerated for longer
periods; to deter such offenders; to ensure that such offenders are kept out of circulation longer; and to
reflect community abhorrence of such offending.
Mr J.R. QUIGLEY: This clause provides a mandatory sentence of 15 years when a murder has occurred during
a home burglary.
Mrs L.M. Harvey: An aggravated home burglary.
Mr J.R. QUIGLEY: A mandatory sentence of 15 years.
Mrs L.M. Harvey: Minimum.
Mr J.R. QUIGLEY: Minimum, yes. Is there not a danger that the minister is pressing down the sentences?
What would the minister say is the sentencing range for aggravated home burglary involving murder? What
would the minister say is the average sentence or the range of sentences? What are the minimum terms for
aggravated home burglary involving murder?
Mrs L.M. HARVEY: We do not have specific examples for every section of the Criminal Code. Consistent
with all the cases we have highlighted and the examples we have presented of sentencing that we say were not in
keeping with community expectations and what the community has said to us, we have applied the mandatory
penalty regime across those sections of the Criminal Code that cover off on those offences such as murder,
[ASSEMBLY — Wednesday, 11 March 2015]
1093
manslaughter and unlawful assault causing death. We will go through a range of offences , no doubt clause by
clause, in clauses 5 and 6 et cetera.
Mr J.R. QUIGLEY: But I was dealing with aggravated home burglary involving murder, and so far the minister
has not referred us to one case involving aggravated home burglary involving murder. I wanted to know how the
minister arrived at a mandatory minimum term of 15 years. The minister has not referred us to one case yet.
Mrs L.M. HARVEY: For the sake of consistency, we are not actually prescribing or changing the maximums
for these penalties. The maximum for murder is life. We are saying we want a mandatory minimum of 15 years
for murder that is committed in the circumstances of an aggravated home burglary. We are setting a minimum
level of 15 years, but the maximum can still be life.
Mr J.R. QUIGLEY: But the minister has not referred us to one case yet. The minister has referred us to the
database, to which we will now go, but she has not yet referred us to, in the course of discussion of the Criminal
Law Amendment (Home Burglary and Other Offences) Bill 2014, even one case involving aggravated home
burglary involving murder. I was wondering how the minister arrived at a mandatory minimum of 15 years. Is
that just an arbitrary decision that the minister pulled off the roof?
Mrs L.M. HARVEY: When we were putting the legislation together we went back to our election commitment
and pulled out the offences consistent with the commitment we made to the community around seriously violent
offences committed in the course of an aggravated home burglary. Clearly, murder is one of those offences that
should be subject to this regime in that context.
Mr J.R. QUIGLEY: But my question was: the mandatory term of 15 years, was that just an arbitrary figure the
minister pulled off the roof, or did she arrive at that after a review of the case law?
Mrs L.M. HARVEY: Member, our commitment to the community was for a mandatory minimum jail term of
75 per cent of the maximum for an adult offender who committed serious physical or sexual assaults in the
course of a home burglary. That was our commitment, so we have set that mandatory minimum jail term for
section 279 at 15 years. We have set that at 15 years because life imprisonment can clearly mean longer, but we
have prescribed a mandatory minimum.
Mr J.R. QUIGLEY: That is what I was getting at. That is what I was asking. For murder it is life imprisonment:
how does the minister arrive at 15 years? Was this an arbitrary decision as the appropriate minimum sentence, or
is this arrived at after analysis of what Their Honours are doing in court?
Mrs L.M. HARVEY: Member, as I said previously, my understanding is that for murder it used to be
a mandatory life term. Now it is an option, so we have set a mandatory minimum of 15 years, consistent with our
election commitment.
Mr J.R. QUIGLEY: Has the minister read the Director of Public Prosecutions’ database of sentences? Has the
minister studied the DPP’s database for appeal cases on home burglary involving murder?
Mrs L.M. HARVEY: As I said previously, we did research on a range of areas. We are fulfilling a commitment.
It is what it is. The member for Butler can either support it or not.
Mr J.R. QUIGLEY: I understand what it is. It is a popular election commitment. I am asking whether in the
fulfilment of this populist election commitment, the minister arrived at the 15 years after studying the DPP’s
database on appellant sentences.
Mrs L.M. HARVEY: We considered the sentences that had been handed down but as I said, for the sake of
consistency and in keeping with our commitment to the electorate, we determined that we would prescribe
a mandated minimum term of 75 per cent of the maximum. Obviously, when the maximum term that can be
imposed is life imprisonment, that can have a variable meaning, so we have said the mandated minimum for that
offence should be 15 years, up to a maximum at the discretion of the court.
Mr J.R. QUIGLEY: The minister said she studied a series of matters. When I have asked before, with respect,
the minister appeared to be evasive. She referred me to the Attorney General’s website, but we agreed that that
does not have individual sentences on it. It has just the number of sentences; it does not mention any sentence.
We have also agreed that there is the DPP’s data base of appellant sentences. I am asking whether the minister
studied the DPP’s database of appellant sentences for aggravated burglary involving murder. It is a simple
question. Did the minister look at it?
The ACTING SPEAKER: The question is that clause 5 stand as printed.
Mr J.R. QUIGLEY: I have a question.
The ACTING SPEAKER: The minister has no obligation to answer the question.
Mr J.R. QUIGLEY: I have a further question.
The ACTING SPEAKER: You have a further question?
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[ASSEMBLY — Wednesday, 11 March 2015]
Mr J.R. QUIGLEY: Yes. I understand she sits there mute.
The ACTING SPEAKER: Please proceed. With the long pause, I thought you had finished.
Mr J.R. QUIGLEY: In framing my questions one after the other, I was anticipating an answer. When there was
no answer I had to frame the next question.
The ACTING SPEAKER: Please proceed.
Mr J.R. QUIGLEY: Thank you.
Does the minister believe that in relation to home burglary involving murder, Their Honours are not living up to
community expectations? Is that the reason this proposed new section is included?
Mrs L.M. HARVEY: I have already answered that question numerous times and explained the rationale for
setting the mandatory minimum term for murder in the course of an aggravated home burglary at 15 years.
Mr J.R. QUIGLEY: When I look at the database of aggravated burglary involving murder, let us go firstly to
Johnson v the State of Western Australia. He was 25 years at the time of offending and he pleaded not guilty. It
is case 28. He was convicted after trial of murder, two counts of deprivation of liberty and aggravated burglary,
and he was sentenced to a minimum non-parole period of 18 years. Does the minister think that sentence,
a minimum non-parole period of 18 years, adequately reflects the community expectation?
Mrs L.M. HARVEY: Yes, member. It is above the mandated minimum that we are prescribing of 15 years and
consistent with the maximum that could be imposed.
Mr J.R. QUIGLEY: Does the minister consider that it adequately reflects the community expectation for
aggravated home burglary involving deprivation of liberty and murder? Does the minister think that adequately
reflects the community expectation?
Mrs L.M. HARVEY: I will go back to the policy objective that sits behind this amendment to the
Criminal Code. We could go through every case, case by case.
Mr J.R. Quigley: And we shall.
Mrs L.M. HARVEY: I will not be giving the member an opinion on the outcome of every single trial case that
he presents. I am going to stand by what we believe, which is that the mandated minimum that we are
prescribing for section 279, murder, committed in the course of an aggravated home burglary should be 15 years
up to a maximum of life imprisonment—at the court’s discretion, obviously, for the maximum.
Mr J.R. QUIGLEY: The minister said in her second reading speech that the court, bound as it is by case law
and precedent, was striking sentences that did not adequately reflect the community’s expectation, and so I ask:
does a term of 18 years’ imprisonment before parole adequately reflect the community’s expectation in that
case?
The ACTING SPEAKER (Mr P. Abetz): The question is that clause 5 stand as printed.
Mr J.R. QUIGLEY: Let the record note that the minister sits mute, again.
Mr P. PAPALIA: I was actually standing because I was certain that the member for Butler had some other
question to ask, but I fear that he was waiting for the minister to respond to his question, which is a quite
legitimate question about this specific case. It is not the entire list of cases; it was that specific case of an
individual who was sentenced to 18 years. The member’s question was pretty specific and pretty simple, I would
have thought. He asked: does that 18-year sentence for that particular crime reflect community expectation?
Mrs L.M. HARVEY: I will clarify my comments. Without fully acquainting myself with all the material facts
of every single one of the trials, which I am sure the member for Butler will ask me to express an opinion on, to
say whether the sentences imposed meet community expectations, I stand by the fact that we believe we need to
mandate minimum terms for seriously violent offences that are committed in the course of a home burglary. That
is what we are prosecuting here. I will not be giving an opinion, members for Butler and Warnbro, on individual
cases. I will not be going through every individual aspect to understand every single case, which I am sure we
have here in a booklet of a couple of hundred pages. I will not be giving an opinion on every single outcome of
every single judgement. I do not think that would further the debate or bring the debate forward, and I do not
think it would change our position as a government, which is that we took this election commitment to the
community and now we intend to carry out that commitment by way of this amendment to the Criminal Code.
Mr J.R. QUIGLEY: In the minister’s book of cases, can she take me to any case of aggravated home burglary
involving murder in which the accused got less than 18 years’ imprisonment? Can she give me an example of
a case in which the judge failed to meet the community’s expectation when sentencing for aggravated home
burglary involving murder? Can the minister take us to one case in which the sentence was less than 18 years’
imprisonment? From the ones I have read, I have it between 18 and 32 years for aggravated burglary involving
[ASSEMBLY — Wednesday, 11 March 2015]
1095
murder. The minister’s book is 100 pages. My book is not quite that big. Can the minister take us to any case in
which the judge in a case involving aggravated home burglary and murder failed to meet the community’s
expectations?
Mr P. PAPALIA: I am pretty disturbed that the minister failed to respond to that very specific and reasonable
question. The minister has actively sought to undermine the credibility of the judiciary in Western Australia by
suggesting that it does not reflect the expectations of the Western Australian public in sentencing for this type of
offence. The government uses this type of offence when selling this legislation. It uses the top-end, worst-case
offence in which someone has burgled a house and killed somebody. That is the type of offence the government
uses to sell this legislation to the public. If the minister is incapable of identifying one case in which the judiciary
has failed to reflect community expectations in sentencing, that goes to her credibility and the credibility of this
government and, obviously, this legislation. It is not good enough to sit there, minister, and fail to respond to this
question that is at the heart of the whole debate. The minister will be held to account and her credibility is on the
line. If the minister sits there now and fails to answer because she does not have an answer because there is no
evidence to back this legislation and the unfounded attack that she has made on the judiciary in WA, the
minister’s credibility is, in fact, not at stake anymore; it is just condemned. The minister has no credibility.
Dr A.D. BUTI: I refer the minister to the “Statutory Review: Operation and Effectiveness of the
2008 Amendments to the Criminal Code and the Sentencing Act 1995” that the Attorney General tabled in the
other place on 18 February 2015. An amendment to that deleted “wilful murder” and replaced it with “murder”.
The statutory review states —
Prior to the amendments, the median life imprisonment prison sentence for murder charges finalised in
the Supreme Court was 15 years. After the amendments, it was 18 years.
The median sentence is 18 years. Where does this concern come from that we have to impose this mandatory
sentencing because the judiciary is not doing what it should do? The government’s amendments impose
a sentence that is lower than the median sentence. The minister has been misleading the public of
Western Australia. The government’s own Attorney General tabled a report in the other place that tells us that
the median sentence for murder is 18 years. The minister says that the government is on the side of the victims.
That is disgraceful behaviour. When 18 years is the median sentence imposed by the Supreme Court in
a document tabled by the government’s own Attorney General, whom the minister is representing in this
chamber, how can the minister stand and say that we need to impose mandatory sentencing for 15 years? Do not
sit there mute and not respond to that, because the minister is misleading this chamber and the people of
Western Australia and undermining the judiciary.
When we were here last time, the member for Victoria Park talked about whether the members on the other side
of the house are part of a conservative government. A conservative government does not go out and trash the
institution. The judiciary is one of the arms of government, and the government is trashing the judiciary.
The government is not conservative. The member for Victoria Park is right; government members are radicals.
What is worse is that the minister is misleading the public of Western Australia. If they listened to the minister
and the Premier, they would believe that they are not protected by the courts. That is rubbish! The
Attorney General, whom the minister represents in this chamber, tabled a document that states that the median
term of imprisonment for murder is 18 years. Where is the minister saying that we have to stand on the side of
the victims? The judiciary is doing its job. This is pure grandstanding and base politics. The Leader of the House
said to the member for Warnbro earlier this year that the government will not engage in an auction on law and
order at the next election, but that is what the government did at the last election. The Leader of the House is a
decent person—although I must admit that last Thursday was a bit of an aberration. The Leader of the House
knows what the minister did at the last election. The government played base politics and it was disgraceful. It is
particularly disgraceful that the government is attacking the judiciary, which is unable to fight back.
The judiciary should not have to fight back. The minister should be in here upholding one of the pillars of the
Westminster system—that is, an independent judiciary that is doing its job. How does this bill improve what the
courts are doing at the moment when the median sentence for murder is 18 years? It is disgraceful, minister!
Debate adjourned on motion by Mr J.H.D. Day (Leader of the House).
House adjourned at 11.01 pm
__________
1096
[ASSEMBLY — Wednesday, 11 March 2015]
QUESTIONS ON NOTICE
Questions and answers are as supplied to Hansard.
MINISTERIAL OFFICES — MEETINGS — TROY BUSWELL
3336.
Mr M. McGowan to the Minister representing the Minister for Agriculture and Food; Fisheries:
Has the Minister and/or any ministerial staff member or placement met with Mr Troy Buswell in an official
capacity since 1 October 2014, and if so:
(a)
on what date(s) did the meeting(s) take place;
(b)
who attended the meeting(s);
(c)
what was the purpose of the meeting(s);
(d)
where did the meeting(s) take place; and
(e)
what issues were discussed at each meeting?
Mr W.R. Marmion replied:
Between 1 October 2014 and 17 February 2015 one Ministerial staff member has had the following meeting with
Troy Buswell related to government business:
(a)
3 February 2015
(b)
Trevor Whittington, Chief of Staff to the Minister for Agriculture and Food; Fisheries
(c)
Informal discussion
(d)
At a café in West Perth
(e)
Discussed fishing industry including Herring and Shark Bay.
ATTORNEY GENERAL’S PORTFOLIOS — EX GRATIA PAYMENTS
3406.
Mr M. McGowan to the Minister representing the Attorney General; Minister for Commerce:
Will the Minister advise as to any ex gratia or similar payments made by any agency, commission, department or
Government Trading Enterprise since 1 April 2013 under the Minister’s portfolio responsibilities, including:
(a)
the name of the person or company receiving the payment;
(b)
the amount of the payment;
(c)
the reasons for the payment; and
(d)
the processes undertaken between the application, or proposal for such a payment to be made, and the
making of that payment?
Mrs L.M. Harvey replied:
(a)–(d) Information relating to specific ex gratia or similar payments is subject to a range of personal
information considerations concerning the individuals receiving the payment. These considerations
differ from payment to payment. If the Leader of the Opposition is seeking information concerning such
payments made by a specific agency, he is encouraged to submit a Freedom of Information Application
to that agency so that the consultation and decision making processes mandated by the Freedom of
Information Act 1992 can be followed.
MINISTER FOR REGIONAL DEVELOPMENT’S PORTFOLIOS — EX GRATIA PAYMENTS
3411.
Mr M. McGowan to the Minister for Regional Development; Lands; Minister Assisting the
Minister for State Development:
Will the Minister advise as to any ex gratia or similar payments made by any agency, commission, department or
Government Trading Enterprise since 1 April 2013 under the Minister’s portfolio responsibilities, including:
(a)
the name of the person or company receiving the payment;
(b)
the amount of the payment;
(c)
the reasons for the payment; and
(d)
the processes undertaken between the application, or proposal for such a payment to be made, and the
making of that payment?
Mr D.T. Redman replied:
(a)–(e) Please refer to Legislative Assembly Question on Notice No. 3406.
[ASSEMBLY — Wednesday, 11 March 2015]
1097
POTATO MARKETING CORPORATION — ADVERTISING
3459.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
I refer to the advertisement that was run by the Potato Marketing Corporation (PMC) on pages 2 and 3 of the
West Australian on the 16 January 2015, and I ask:
(a)
what was the total cost to place these advertisements;
(b)
what section of the Marketing of Potatoes Act 1946 provides the PMC with the ability to spend its
resources on these advertisements;
(c)
what was the total cost involved in designing the ad; and
(d)
how many ads have been run by the PMC in The West Australian for the years 2010, 2011, 2012, 2013,
and 2014, and what were the costs in those years?
Mr W.R. Marmion replied:
(a)
The Potato Marketing Corporation (PMC) was able to secure the space for the advertisement at an
extremely competitive rate on the basis that the retail cost be kept confidential. The cost will be
reported as part of the overall marketing expenditure in the PMC Annual Report.
(b)
Under Section 17A(h) the PMC has the function of marketing potatoes in the state and elsewhere,
which is reinforced by Section 17A(c) where it is charged with marketing that enables
Western Australian (WA) potatoes to compete in price and quality with potatoes from elsewhere.
Section 19(1)(p) also applies.
As a trading corporation, the PMC formed the view that recent incorrect editorial comment in
The West Australian had the potential to mislead consumers, which are its key customers, and adversely
affect its market position. Therefore, it took the decision to place the advertisement to inform its key
customers of correct information and protect its market position.
(c)
The cost of designing the advert was $3 494.30, including GST.
(d)
At the request of growers, the PMC recommenced marketing potatoes in October 2013. In so doing, the
PMC replaced previous levies imposed by other organisations to cover marketing and promotion.
In 2013, three adverts were run at a cost of $15 298.47, including GST. In 2014, one advert was run at
a cost of $1 101.49, including GST.
The spend is a minor percentage of the total spend by the PMC, and is part of the PMC’s grower backed
drive to increase consumption of potatoes in WA.
MINISTERIAL OFFICES — MEETINGS — BARTON DEAKIN
3542.
Mr M. McGowan to the Minister representing the Minister for Agriculture and Food; Fisheries:
Could the Minister advise if the Minister and/or any staff member or placement within the Minister’s Office, has
had any contact or meetings with representatives of registered lobbyist Barton Deakin Government Relations,
since 1 July 2013, and, if yes:
(a)
what were the dates of the contact(s) or meeting(s);
(b)
what was the name of the client being represented during the contact;
(c)
what was the nature or subject of discussion during the contact(s) or meeting(s);
(d)
were other people present during the contact(s) or meeting(s); and
(e)
what were the names of all people present?
Mr W.R. Marmion replied:
(a)–(e) Not applicable
ARALUEN BOTANIC PARK — STAFF
3555.
Mr P. Papalia to the Minister for Environment:
At the date of this question, what was the total number of people employed in managing/operating
Araluen Botanic Park:
(a)
what number of each public sector classification level and each Senior Executive Service band were
employed in these roles;
(b)
what number of these people were employed at Araluen Botanic Park and what number were located
elsewhere (state location); and
1098
(c)
[ASSEMBLY — Wednesday, 11 March 2015]
how much money in total was spent on consultancy in support of Araluen Botanic Park during the
last 12 months before the date of the question and what was the breakdown of expenditure on
consultancy (i.e. how much was spent on each contract and what was the topic/task of each consultancy
contract?
Mr A.P. Jacob replied:
(a)
The Department of Parks and Wildlife has one Level 5 Public Service Award staff member at 0.4 full
time equivalent who undertakes a liaison role with the Araluen Botanic Park Foundation.
(b)
This position is based at the Department’s Swan Region office in Crawley.
(c)
No money was spent on consultancy in support of Araluen Botanic Park during the last 12 months.
POTATO MARKETING CORPORATION — VARIETAL PRICE DETERMINATION
3577.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
What methodology does the Potato Marketing Corporation determine the price of each variety of potato in
Western Australia?
Mr W.R. Marmion replied:
The Potato Marketing Corporation (PMC) monitors retail pricing levels on a national level via a reputable and
independent market data analysis organisation, Fresh Logic.
The PMC also employs the services of independent consultants to survey the cost of production with growers’
costs/inputs, and to recommend pricing levels by pool by variety that will allow an efficient grower to make
a reasonable return as stipulated in the Marketing of Potatoes Act 1946 and Marketing of Potatoes
Regulations 1987.
A consultation process is undertaken with agents and retailers to discuss anticipated levels of market demand and
other emerging market trends and conditions.
The PMC considers commercial factors such as the level of supply and demand, while also taking into account
the value of particular varieties (low yield vs. high yield) and boutique varieties.
Prices are reviewed informally on a weekly basis in conjunction with market activity, supply chain movements
and growing conditions. Pricing support and promotional activity discussions are held with all merchants to
move additional or surplus product through existing or new channels.
Prices are formally reviewed and notified currently on a three weekly cycle after obtaining key independent
market data, merchant demand insights, supply chain conditions and product availability.
POTATO MARKETING CORPORATION — POTATO PRICE BY STATE
3584.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
I refer to the statement in the advertisement, ran by the Potato Marketing Corporation on pages 2 and 3 of
The West Australian on the 16 January 2015, stating that consumers purchasing potatoes produced in the
regulated market of Western Australia “…are also able to buy them for the same or lower price than consumer in
any other state”, and I ask:
(a)
what is the analytical basis for this statement; and
(b)
which states, and which potatoes, are more expensive than potatoes produced in Western Australia?
Mr W.R. Marmion replied:
(a)
The Potato Marketing Corporation (PMC) tracks retail prices in each state of Australia. These prices are
collated by the respected independent Melbourne market research agency, Fresh Logic, contracted by
the PMC.
(b)
Retail price is determined by retailers and typically varies by retailer, category or store and timing.
Horticulture Australia and AUSVEG in their publication titled ‘Potato Tracker’ found that, from a
survey on 17 November 2014, white washed potatoes in Perth were cheaper than all other state capitals.
This was done by comparing prices at Woolworths stores across each capital city, and then Coles.
POTATO MARKETING CORPORATION — TOTAL OPERATING COST
3585.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
What were the total operating costs for the Potato Marketing Corporation for the years 2010, 2011, 2012, 2013,
and 2014? How was that cost funded?
[ASSEMBLY — Wednesday, 11 March 2015]
1099
Mr W.R. Marmion replied:
Total operating costs for the Potato Marketing Corporation (PMC) were:
2010 — $2 110 781
2011 — $2 245 724
2012 — $2 605 145
2013 — $2 994 535
2014 — $4 932 495
The 2014 cost base was increased due to the commencement of the first full year of the marketing consumption
campaign and the potato research Western Australian (WA) agreement to increase research and development.
These two activities are fundamental to industry growth and prosperity, and in driving new variety development
within the WA market.
The PMC does not receive any funding from government, with all costs covered by grower contributions.
POTATO MARKETING CORPORATION — QUANTITY MONITORING COST
3586.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
What are the costs directly associated with monitoring the quantities of potatoes grown by producers in
Western Australia by the Potato Marketing Corporation for the years 2010, 2011, 2012, 2013, and 2014?
Mr W.R. Marmion replied:
Monitoring the quantities of potatoes grown by producers in Western Australia (WA) is an integral part of the
duties of Potato Marketing Corporation (PMC) Operations Officers, which also includes quality and continuous
improvement activities. The costs shown below incorporate all these activities and related direct costs, not just
the compliance costs, as it is difficult to separate these out at field level.
Costs related to monitoring the quantities of potatoes grown by WA producers are:
2010 — $630 656
2011 — $555 170
2012 — $615 776
2013 — $715 433
2014 — $775 389
POTATO MARKETING CORPORATION — STANDARD AND QUANTITY MONITORING
3587.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
Is the Potato Marketing Corporation able to prevent ‘black markets’ from forming when growers fail to meet its
standards, and if so, what processes are involved in monitoring and enforcing standards and quantities imposed
by the Potato Marketing Corporation?
Mr W.R. Marmion replied:
The following processes are involved in monitoring and enforcing standards and qualities imposed by the
Potato Marketing Corporation (PMC):
PMC issues a licence for Domestic Marketing Entitlement (DME) (tonnage) and area to achieve anticipated
demand (tonnage), as identified during the sales and operations planning process with input received and
reviewed from industry stakeholders.
If the individual grower overproduces, the PMC has ownership rights to take the excess DME from the planted
area. If the excess is not required to meet supply in the domestic ware market, then the PMC may grant a permit
to on-sell that excess to the processing and export markets.
Grower declarations, third party surveying maps and other licencing and compliance documentation is used to
monitor the growth, movement, delivery and grading of potatoes within the supply chain.
Field staff monitors crops and yields on a daily basis, which further assists in ensuring the appropriate quality
and availability of supply for consumers is directed through merchant channels.
The Marketing of Potatoes Act 1946 and Marketing of Potatoes Regulations 1987 clearly identify the
requirements of complying with growing licences and the operation of the regulated supply system. These
requirements provide the basis for an efficient grower to make a reasonable return based on individual results
1100
[ASSEMBLY — Wednesday, 11 March 2015]
and other factors. Continuous improvement initiatives are a key focus to maintain high levels of quality product
within the supply chain at all times, and to improving individual grower returns.
Grower benchmarking activities highlight individual grower performance and areas for review and improvement.
Discussions are held to determine the appropriate courses of action to improve quality, compliance and
efficiencies. The PMC provides growers with access to its staff and other agronomical specialists to assist in
delivering improved farm gate quality and value.
The support of the overwhelming number of growers for the regulated system is an important factor, as few
participants seek to operate outside the system.
AGRICULTURE AND FOOD — POTATO VARIETIES BY STATE
3588.
Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
How many varieties of potato were grown in each other State in Australia?
Mr W.R. Marmion replied:
There is no data available which would allow a definitive answer to this question. Ausveg, independent national
seed growers and washpackers, do not currently collect or collate data on varieties of potatoes grown in other
states of Australia.
It should be noted that the two major retailers in Western Australia (WA) and nationally (Coles and
Woolworths), predominantly market brands of potatoes into which they feed a number of different varieties
(according to the time of year and which variety is in better quality and quantity). This gives rise to the common
assumption that there is a lack of variety grown in WA, which is simply not the case.
AGRICULTURE AND FOOD — POTATO TONNAGE — WESTERN AUSTRALIA
3589. Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
What was the tonnage of potatoes produced by Western Australian growers for the
years 2010, 2011, 2012, 2013, and 2014?
Mr W.R. Marmion replied:
Production tonnages are the volumes that have been grown and delivered from the grower to the washpacking
merchant in readiness for washing, grading and packing activities.
Production tonnages, less dumpings, result in the tonnage available for commercial activity.
Ware* Production tonnages for the years 2010–2014 are as follows:
2010 — 50 765 tonnes
2011 — 52 544 tonnes
2012 — 50 200 tonnes
2013 — 51 514 tonnes
2014 — 54 673 tonnes
*Ware potato means a potato which —
(a)
is grown in the State; and
(b)
is sold, or in respect of which there are reasonable grounds to believe that it is intended for sale, for
human consumption; and
(c)
is unprocessed, except for cleaning and grading.
AGRICULTURE AND FOOD — POTATO MARKET — WESTERN AUSTRALIAN GROWERS
3590. Mr B.S. Wyatt to the Minister representing the Minister for Agriculture and Food:
For each of the years 2010, 2011, 2012, 2013, and 2014, what percentage of the Western Australian potato
market was supplied by Western Australian growers?
Mr W.R. Marmion replied:
The total Western Australian (WA) ware potato market is made up of all WA grown and supplied volumes plus
imports of ware potatoes from other sources.
WA growers supplied the following percentages of the total WA ware potato market requirements:
2010 — 97.6 per cent
2011 — 97.1 per cent
2012 — 91.1 per cent
2013 — 92.2 per cent
2014 — 97.0 per cent
__________