SOUTH AUSTRALIA]

No. 13

 

 

MINUTES OF THE PROCEEDINGS

 

OF THE

 

 

LEGISLATIVE COUNCIL

_______

 

 

 

TUESDAY  26  OCTOBER  2004

 

 

 

   1.

Council met pursuant to adjournment.  The President (The Hon. R. R. Roberts) took the Chair.

                 The President read prayers.

 

Meeting of
Council.

 

   2.

The President made the following Statement:

                 “I received a request to have a Right of Reply incorporated in Hansard from the Naracoorte/Lucindale Council.  It is in response to questions asked during the debate on matters of interest by The Hon. R. K. Sneath on 15 September 2004.  However, I have some concerns about this request.

                 The Citizen’s Right of Reply has been provided by Sessional Standing Order to enable, under Parliamentary Privilege, a redress for citizens who feel they have been aggrieved by what has been said in the Legislative Council to have their concerns incorporated by way of a statement in Hansard.  As President of the Legislative Council it is for me to decide on whether a statement is incorporated in Hansard.

                 However, this process should not be turned into a “political football” to enable persons or bodies who have taken other action to address their concerns to then seek Parliamentary Privilege to be applied to their statement after already publicising the statement.  I have received correspondence on Friday last, 22 October 2004, which was dated 14 October 2004 from the Naracoorte/Lucindale Council.  I understand that the CEO of the Council and Councillor Bill Cobbledick, earlier sought advice from the Clerk on 6 October 2004, and then emailed the draft response to her on 19 October 2004.  Subsequently, the Clerk contacted Mr. Dennis Hovenden on Thursday last to have removed from the draft Right of Reply certain statements which did not conform with the Sessional Standing Order.  Accordingly, the amended formal request for a Citizen’s Right of Reply was received last Friday.

                 I had been inclined to agree to the request, but having raised this matter with The Hon. Mr. Sneath, as required under the Sessional Standing Order, he advised me that he was aware of this matter and had received correspondence from the Naracoorte/Lucindale Council dated 14 October 2004, signed by the CEO, in which it was pointed out that the unamended response had been widely circulated to the Minister for Local Government, certain Members of both State and Federal Parliament, as well as the local media.

                 The process of Citizen’s Right of Reply was never meant to provide Parliamentary Privilege to actions already undertaken in order to provide retrospective protection to persons who had already circulated their response.  Clearly, the Council, by writing to The Hon. Mr. Sneath and others, has already aired its views, not only to other individuals, but more importantly to the media, and therefore, I am not inclined to agree to the request to have this matter incorporated in Hansard.”

 

President’s
Statement:
Citizen’s Right
of Reply.

 

    3.

The following Papers were laid upon the Table, viz.:

        By the Minister for Industry and Trade (The Hon. P. Holloway) -

                 Reports, 2003-2004 -

                          Department of Treasury and Finance.

                          Director of Public Prosecutions.

                          Distribution Lessor Corporation.

                          Essential Services Commission of South Australia.

                          Funds SA.

                          Generation Lessor Corporation.

                          Guardianship Board.

                          Legal Services Commission of South Australia.

                          Lotteries Commission of South Australia.

                          Motor Accident Commission.

                          Office of the Public Advocate.

                          Police Superannuation Board.

                          RESI Corporation - Part 1 Chief Executive Officer’s Report.

                          SAICORP (South Australian Government Captive Insurance Corporation).

                          South Australian Asset Management Corporation.

                          South Australian Classification Council.

                          South Australian Government Financing Authority SAFA.

                          South Australian Motor Sport Board.

                          South Australian Parliamentary Superannuation Scheme.

                          State Electoral Office.

                          Super SA Board - Seventy-Eighth Annual Report.

                          Telecommunications (Interception) Act 1988.

                          The Legal Practitioners Education and Admission Council.

                          Transmission Lessor Corporation.

                 Regulations under the following Acts -

                          Electricity Act 1996 - Bushfire Risk.

                          Liquor Licensing Act 1997 - Long Term Dry Areas - Berri and Barmera.

                          Victims of Crime Act 2001 - Statutory Compensation.

                 Rules of Court -

                          Magistrates Court - Magistrates Court Act 1991 - Debtors.

                          Supreme Court - Supreme Court Act 1935 - Criminal Rules.

        By the Minister for Aboriginal Affairs and Reconciliation

        (The Hon. T. G. Roberts) -

                 South Australian Abortion Reporting Committee - Report, 2003.

                 Reports, 2003-2004 -

                          Advisory Board of Agriculture.

                          Animal Welfare Advisory Committee.

                          Freedom of Information Act 1991.

                          HomeStart Finance.

                          Land Board.

                          Office for the Ageing.

                          PIRSA - Primary Industries and Resources SA.

                          Report of the President, Industrial Relations Commission and Senior Judge, Industrial Relations Court - Tenth Annual Report.

                          South Australian Community Housing Authority.

                          South Australian Forestry Corporation.

                          South Australian Housing Trust.

                          South Australian National Parks and Wildlife Council.

                          South Australian Tourism Commission.

                          State Records of South Australia - Administration of the State Records Act 1997.

                          The South Australian Aboriginal Housing Trust.

                          Wildlife Advisory Committee.

                 Upper South East Dryland Salinity and Flood Management Act 2002 - Quarterly Report, 1 April 2004 to 30 June 2004.

                 Regulations under the following Acts -

                          Fisheries Act 1982 - Cockles.

                          Freedom of Information Act 1991 - Members of Parliament.

                          Housing and Urban Development (Administrative Arrangements) Act 1995 - Board of Management.

                          Technical and Further Education Act 1975 - Classifications.

                          Workers Rehabilitation and Compensation Act 1986 - Anaesthetic Services.

                  Australian Government National Occupational Health and Safety Commission - National Code of Practice for Noise Management and Protection of Hearing at Work, 3rd Edition - June 2004.

                 District Council By-laws - Cleve -

                          No. 1 - Permits and Penalties.

                           No. 2 - Moveable Signs.

                          No. 3 - Roads.

                          No. 4 - Local Government Land.

 

Papers.

 

   4.

The Hon. J. M. Gazzola brought up the Report of the Joint Committee on a Code of Conduct for Members of Parliament, together with Minutes of Proceedings and Submissions.

 

Joint Committee on a
Code of Conduct
for Members of
Parliament.

 

 

   5.

The Minister for Aboriginal Affairs and Reconciliation brought up the Annual Report of the Aboriginal Lands Parliamentary Standing Committee, 2003-2004.

                 Ordered - That the Report be printed.  (Paper No. 181)

 

Aboriginal Lands
Parliamentary
Standing
Committee -
Annual Report,
2003-2004.

 

 

   6.

The Minister for Industry and Trade tabled a copy of a Ministerial Statement made by the Premier (The Hon. M. D. Rann, M.P.) concerning the Adelaide Magic Millions and the Adelaide Cup.

 

Ministerial
Statement Tabled.

 

   7.

The Minister for Industry and Trade tabled a copy of a Ministerial Statement made by the Minister for Transport (The Hon. P. L. White, M.P.) concerning Bus Contracts.

 

Ministerial
Statement Tabled.

 

   8.

The Minister for Aboriginal Affairs and Reconciliation tabled a copy of a Ministerial Statement made by the Minister for Environment and Conservation (The Hon. J. Hill, M.P.) concerning Departmental Funds.

 

Ministerial
Statement Tabled.

 

   9.

The Minister for Industry and Trade, without notice, moved - That the Standing Orders be so far suspended as to enable Question Time to be extended by one hour to enable questions to be asked and replies given relating to the Report of the Auditor-General, 2003-2004.

                 Question put and passed, without a dissentient voice, there being present an absolute majority of the whole number of Members of the Council.

 

Suspension of
Standing  Orders.

 

10.

Ordered - That Order of the Day (Government Business) No. 1 be an Order of the Day for next day of sitting.

 

Postponement
of Business.

 

11.

The Council, according to order, resolved itself into a Committee of the Whole for the consideration of the Criminal Law Consolidation (Abolition of the Drunk’s Defence) Amendment Bill.

 

In the Committee

 

                          Clause No. 1 read.

Criminal Law
Consolidation
(Abolition of the
Drunk’s Defence)
Amendment Bill.

 

 

                 The Hon. R. D. Lawson moved on page 2, lines 3 and 4, to leave out “Abolition of the Drunk’s Defence” and insert “Intoxication”.

                 Question - That the amendment be agreed to - put.

Short Title
Changed to:
Criminal Law
Consolidation
(Intoxication)
Amendment Bill.

 

 

             Committee divided:

Ayes, 15

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. R. D. Lawson (Teller)

      So it was resolved in the affirmative.

 

Noes, 6

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. T. G. Roberts

The Hon. R. K. Sneath

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

 

 

 

 

                          Clause No. 1, as amended, agreed to.

                          Clauses No. 2 to No. 6 agreed to.

                          Title agreed to.

_____________________

 

                 The President resumed the Chair, and reported that the Committee had considered the Bill and had agreed to the same with an amendment; whereupon the Council adopted such report.

                 The Minister for Industry and Trade, pursuant to contingent notice, moved - That the Standing Orders be so far suspended as to enable the Bill to pass through its remaining stages without delay.

                 Question put and passed.

                 The Minister for industry and Trade then moved - That this Bill be now read a third time.

                 Question put.

 

 

 

             Committee divided:

Ayes, 18

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

      So it was resolved in the affirmative.

 

Noes, 3

The Hon. S. M. Kanck

The Hon. K. J. Reynolds

The Hon. I. Gilfillan (Teller)

 

 

 

 

                 Bill read a third time.

                 Resolved - That this Bill do now pass.

 

 

 

12.

Ordered - That Orders of the Day (Government Business) No. 3 and No. 4 be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

13.

The Council, according to order, resolved itself into a Committee of the Whole for the consideration of the Tobacco Products Regulation (Further Restrictions) Amendment Bill.

 

In the Committee

 

                          Clause No. 1 agreed to.

                          Clause No. 2 read.

                 The Hon. N. Xenophon moved on page 2, line 6, to delete “This” and insert “Subject to subsection (2), this” and after line 6, to insert new subclause as follows:

     “(2)      If a proclamation has not been made bringing this Act into operation on an earlier day, this Act will come into operation on 31 December 2004.”.

                 Question - That the amendments be agreed to - put and negatived.

                          Clause No. 2 agreed to.

                          Clause No. 3 agreed to.

                          Clause No. 4 read.

                 The Minister for Industry and Trade moved on page 4, lines 12 to 15, to leave out paragraphs (b) and (c) and insert new paragraphs as follows:

     “(b)     a place (other than a vehicle) where only a single self-employed person is working; or

       (c)      a vehicle that is used for work purposes by only one person; or”.

                 To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

Tobacco Products
Regulation (Further
Restrictions)
Amendment Bill.

 

14.

At one minute past six o’clock the sitting was suspended until the ringing of the bells.

                 At fifteen minutes to eight o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

 

15.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Tobacco Products Regulation (Further Restrictions) Amendment Bill.

 

In the Committee

 

                          Clause No. 4 which the Minister for Industry and Trade had moved to amend on page 4, lines 12 to 15, by leaving out paragraphs (b) and (c) and inserting new paragraphs as follows:

     “(b)     a place (other than a vehicle) where only a single self-employed person is working; or

       (c)      a vehicle that is used for work purposes by only one person; or”

        - further considered.

                 Question - That paragraph (b) be struck out and new paragraph (b) inserted - put and passed.

                 Question - That paragraph (c) be struck out and new paragraph (c) inserted - put.

Tobacco Products
Regulation (Further
Restrictions)
Amendment Bill.

 

 

             Committee divided:

Ayes, 12

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. K. J. Reynolds

The Hon. T. G. Roberts

The Hon. R. K. Sneath

The Hon. N. Xenophon

The Hon. P. Holloway (Teller)

      So it was resolved in the affirmative.

 

Noes, 7

The Hon. T. G. Cameron

The Hon. R. I. Lucas

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. A. J. Redford (Teller)

 

 

 

 

                 The Hon. N. Xenophon moved on page 4, line 20, to leave out “70” and insert”50”.

                 Question - That the amendment be agreed to - put and negatived.

                          Clause No. 4, as amended, agreed to.

                          Clauses No. 5 and No. 6 agreed to.

                 The Hon. N. Xenophon moved on page 5, after line 18, that it be a suggestion to the House of Assembly to insert new clause as follows:

                 “6A—Amendment of section 10—Form of application and payment of licence fee and levy

(1)       Section 10(3)—after "regulations" insert:

                              and the prescribed levy

(2)       Section 10—after subsection (3) insert:

                              (4)           In this section—

                                              prescribed levy means—

      (a)       if an amount in excess of $100 is prescribed by regulation—that amount; or

      (b)      if no such amount is prescribed by regulation—$100.”.

                 Question put and negatived.

                          Clauses No. 7 to No. 10 agreed to.

                          Clause No. 11 read.

                 To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on motion.

 

 

 

16.

At fifteen minutes to ten o’clock the sitting was suspended until the ringing of the bells.

                 At ten minutes past ten o’clock the sitting was resumed.

 

Suspension and
Resumption of
Sitting.

 

17.

The Council, according to order, resolved itself into a Committee of the Whole for the further consideration of the Tobacco Products Regulation (Further Restrictions) Amendment Bill.

 

In the Committee

 

                          Clause No. 11 further considered.

                 The Hon. N. Xenophon moved on page 5, after line 35, to insert new subclauses as follow:

                 “(2)   A person must not sell by retail any product (other than a tobacco product) that is declared under subsection (3) to be a prohibited product.

                          Maximum penalty:       $5 000.

                  (3)    The Minister may, by notice published in the Gazette, declare a specified class of products to be prohibited products if the Minister is satisfied that the products may induce children to smoke.”

                 Question - That the amendment be agreed to - put and negatived.

                          Clause No. 11 agreed to.

                          Clause No. 12 read.

                 The Hon. J.M.A. Lensink moved on page 6, line 9, after “licence” to insert “and no other such vending machine is situated in the gaming area or any other part of the premises in respect of which the licence is in force under the Liquor Licensing Act 1997”, and line 14, after “holder of the licence” to insert “and no other such vending machine is situated in the premises in respect of which the licence is in force”, and line 17, after “1997” to insert “and no other such vending machine is situated in the casino”.

                 Question - That the amendments be agreed to - put.

Tobacco Products
Regulation (Further
Restrictions)
Amendment Bill.

 

 

             Committee divided:

Ayes, 13

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. C. V. Schaefer

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon

The Hon. J.M.A. Lensink (Teller)

      So it was resolved in the affirmative.

 

Noes, 7

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. A. J. Redford

The Hon. T. G. Roberts

The Hon. R. K. Sneath

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

 

 

 

 

                          Clause No. 12, as amended, agreed to.

                          Clause No. 13 read.

                 The Hon. N. Xenophon moved on page 6, line 35, to leave out “$315” and insert “$630”.

                 Question - That the amendment be agreed to - put.

 

 

 

             Committee divided:

Ayes, 9

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. J.M.A. Lensink

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. N. Xenophon (Teller)

 

 

      So it passed in the negative.

 

Noes, 11

The Hon. J.S.L. Dawkins

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

 

 

 

 

                          Clause No. 13 agreed to.

                          Clauses No. 14 and No. 15 agreed to.

                 The Hon. N. Xenophon moved on page 8, after line 12, to insert new clause as follows:

                          15A—Insertion of sections 40A and 40B

                                   After section 40 insert:

                                    40A—Public exhibition of certain films to be preceded by anti-tobacco advertisement

(1)          In this section—

             approved anti-tobacco advertisement means an advertisement approved by the Minister for the purposes of this section;

             film has the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, as amended from time to time;

             public place to which this section applies means a cinema, drive-in theatre or other public place at which persons are required to pay an admission fee to view a film.

(2)          A person must not exhibit, at a public place to which this section applies, a film depicting persons consuming tobacco products unless the exhibition of the film has been immediately preceded by the exhibition of an approved anti-tobacco advertisement.

           Maximum penalty:               $5 000.

(3)          The Minister must ensure that an approved anti-tobacco advertisement—

                                                      (a)       does not exceed 1 minute in length; and

      (b)      warns of the dangers of tobacco consumption; and

(c)          reflects the findings of any research of which the Minister is aware on the links between the depiction of smoking in films and the consumption of tobacco products by adolescents or other members of the community.

(4)          The Minister must, on the application of a person who is planning to exhibit a film to which subsection (2) applies, supply the person, free of charge, with an approved anti-tobacco advertisement in a form that is able to be exhibited using equipment available to the person.

(5)          An application by a person under subsection (4) must be made not less than 10 business days before the exhibition of the film and must be in a form approved by the Minister.

(6)          It is a defence to a charge of an offence against subsection (2) for a person to prove that the person applied, in accordance with this section, to the Minister for the supply of an approved anti-tobacco advertisement but the Minister failed to supply the person with the advertisement in accordance with subsection (4) prior to the exhibition of the film.

(7)          For the purposes of this section, a person is taken to exhibit a film in a public place if the person—

(a)        arranges or conducts the exhibition of the film in the public place; or

(b)        has the superintendence or management of the public place in which the film is exhibited.

(8)          This section does not apply in relation to—

(a)     a film exhibited by television; or

(b)     a film that is an exempt film within the meaning of the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, as amended from time to time.

                                    40A— Recovery of costs from manufacturer

                                    (1)      If—

       (a)     a film depicts a person consuming a particular brand of tobacco product and that brand is able to be identified by viewing the film; and

       (b)    the Minister has, in accordance with section 40A, supplied a person who is planning to exhibit the film (the "film exhibitor") with an approved anti-tobacco advertisement (within the meaning of that section),

the Minister may recover, as a debt from the manufacturer of the tobacco product, an amount prescribed by regulation that reflects the cost of supplying the advertisement.

                                    (2)        Where the Minister recovers an amount under this section, the Minister must pay to the film exhibitor the prescribed percentage of that amount, as compensation for any losses or expenses incurred by the exhibitor in complying with section 40A.”.

                 Question - That new clause No. 15A, as proposed to be inserted by the Hon. N. Xenophon, be so inserted - put and negatived.

 

 

 

                 New clause No. 15A, as proposed to be inserted by the Minister for Industry and Trade, inserted.

 

 

 

                 The Minister for Industry and Trade, by leave, tabled a letter to Ms. Della Rowley, Manager, Tobacco Control Unit, Health Promotion SA, from Mr. David Fouvy, General Manager, Commercial Operations, Cricket Australia, dated 18 August 2004.

                 The Hon. N. Xenophon moved on page 8, after line 12, to insert new clause as follows:

                          “15B—Amendment of section 42—Competitions

                                    Section 42(1)—delete "$5 000" and substitute:

(a)     if the offender is a body corporate that manufactures tobacco products or distributes tobacco products to persons selling tobacco products by retail—$100 000; or

(b)    in any other case—$5 000.”.

                 Question - That new clause No. 15B, as proposed to be inserted by the Hon. N. Xenophon, be so inserted - put.

Document Tabled.

 

 

             Committee divided:

Ayes, 7

The Hon. A. L. Evans

The Hon. I. Gilfillan

The Hon. S. M. Kanck

The Hon. J.M.A. Lensink

The Hon. K. J. Reynolds

The Hon. J. F. Stefani

The Hon. N. Xenophon (Teller)

 

 

 

 

 

 

      So it passed in the negative.

 

Noes, 13

The Hon. J.S.L. Dawkins

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. R. D. Lawson

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. T. J. Stephens

The Hon. C. Zollo

The Hon. P. Holloway (Teller)

 

 

 

 

                          Clause No. 16 read.

                          To report progress and ask leave to sit again.

_____________________

 

                 The President resumed the Chair and reported progress and obtained for the Committee leave to sit again on next day of sitting.

 

 

 

18.

Ordered - That the remaining Orders of the Day (Government Business) be Orders of the Day for next day of sitting.

 

Postponement
of Business.

 

19.

Council adjourned at twenty-nine minutes past eleven o’clock until tomorrow at fifteen minutes past two o’clock.

 

Adjournment.

 

 

_________________________

 

 

 

 

 

 

Members present during any part of the sitting:

 

 

 

 

The Hon. T. G. Cameron

The Hon. J.S.L. Dawkins

The Hon. A. L. Evans

The Hon. G. E. Gago

The Hon. J. M. Gazzola

The Hon. I. Gilfillan

The Hon. P. Holloway

 

The Hon. S. M. Kanck

The Hon. R. D. Lawson

The Hon. J.M.A. Lensink

The Hon. R. I. Lucas

The Hon. A. J. Redford

The Hon. K. J. Reynolds

The Hon. D. W. Ridgway

The Hon. T. G. Roberts

The Hon. C. V. Schaefer

The Hon. R. K. Sneath

The Hon. J. F. Stefani

The Hon. T. J. Stephens

The Hon. C. Zollo

The Hon. N. Xenophon