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Gas Legislation Amendment (Medical Gas Systems) Bill 2020

Published on: August 2020

Record: HANSARD-1323879322-111984

Gas Legislation Amendment (Medical Gas Systems) Bill 2020

Second Reading Debate

Debate resumed from 4 August 2020.

Mr GURMESH SINGH (Coffs Harbour) (15:53):

:42 I speak in support of the Gas Legislation Amendment (Medical Gas Systems) Bill 2020. I commend the Minister for Better Regulation and Innovation for bringing the bill to the House. The bill delivers on the Government's commitment to introduce a robust regulatory scheme for persons who carry out medical gas work in medical facilities in New South Wales. In doing so, the bill seeks to promote the safety of all persons in medical facilities where medical gas work is undertaken, including patients and their families, visitors and staff.

I will talk about the important licensing reforms proposed in this bill. The bill amends both the Gas and Electricity (Consumer Safety) Act 2017 and the Home Building Act 1989 to set up a licensing framework and enables the machinery provisions in the supporting regulations. The object of the Government's bill is safety first. Amending the Gas and Electricity (Consumer Safety) Act enables the Government to draw on the strong enforcement, compliance, reporting and inspection provisions in that Act. The Act also has an existing framework for the regulation of gases, including auto gas and liquefied petroleum gas. Further, the Home Building Act has an existing framework for licensing specialist work, including plumbing and gasfitting work. Amending these two existing Acts will help ensure the implementation of this regulatory scheme is seamless.

The Government committed to delivering a robust regulatory licensing framework, and this bill does just that. The bill introduces two categories of specialist work into the Home Building Act for persons and entities involved in medical gas installations in medical facilities such as public and private hospitals, day hospitals and dental surgeries. Underpinning these categories of specialist work is the introduction of a definition of "medical gas installation" into the Gas and Electricity (Consumer Safety) Act. A medical gas installation is any pipe or system of pipes used to convey or control medical gas and any associated fittings and equipment. This means that anything fixed is covered by the definition of "medical gas installation."

I will now provide further information about the two categories of specialist work introduced in this bill. They are medical gasfitting work and medical gas technician work. Introducing those categories recognises the important distinction that both roles have in relation to medical gas work. The bill proposes that these roles are performed by two different people who have two different skill sets, which is a distinction also made by the Australian Standards and the New South Wales Ministry of Health Policy Directives for Medical Gas Installations. Medical gasfitting work is defined in the bill as the "construction, installation, replacement, repair, alteration, maintenance or the installation or testing of a medical gas installation." A medical gasfitter is the person responsible for installing a medical gas installation. They are also responsible for repairs to the installation. Often persons engaged in this work are experienced and qualified in plumbing.

A medical gas technician is the person who commissions and maintains the medical gas installation within the medical facility. They are responsible for the smooth running of the medical gasinstallation, such as responding to alarm systems, undertakingregular testing and checks and undertaking the final check, termed "commissioning", before the medical gas installation goes live.The medical gas technician works with medical professionals in the facility. Medical gas technician work is often undertaken by people who are university educated, often with a degree in engineering or the biomedical field and who have many years' experience.

The second specialist category, medical gas technician work, is a new category that does not explicitly exist in any other jurisdiction. The Government recognises it is important work and therefore this bill creates a separate standalone category for this specialist work. "Medical gas technician work" is defined in the bill as the "commissioning, maintenance, testing, verification or certification of a medical gas installation.

This Government recognises the importance of the role of a medical gas technician. While there are similar licence categories for medical gasfitting work in other jurisdictions, they do not focus specifically on the conduct of persons engaged in the commissioning of medical gas installations. At present medical gas technicians are largely regulated by the companies that provide commissioning services to medical facilities. They are also regulated by the relevant Australian Standards and in some medical facilities they are required to follow policy directives issued by the New South Wales Ministry of Health.

I cannot impress more on this Parliament the extreme importance of the work of a medical gas technician. The Australian Standard AS2896 has a whole section on this very function. Under the NSW Health Policy Directive this must be done by an independent person, separate from the medical gasfitter. We have seen what goes wrong when this is not performed properly. New South Wales will be the first to identify this as a category of work worth licensing. Through this bill, both the people performing medical gasfitting and medical gas technician work will be required to be licensed. This means that people must have the necessary skills andexperience before they are issued a licence to perform the work.

To ensure that work is performed safety, the bill introduces a newpart 5A into the Gas and Electricity (Consumer Safety) Act to extend the investigation, accident reporting and enforcement provisions in parts 6 and 7 of that Act.I will highlight one of the important compliance provisions introduced in the new part 5A of the Gas and Electricity (Consumer Safety) Act. New section 38B provides that a person must not carry out medical gasfitting work or medical gas technician work unless it is done in accordance with any standards or requirements prescribed by the regulations or any standards or requirements specified by the Secretary of the Ministry of Health by order in writing and published on the website of the Ministry of Health. New section 38B demonstrates the Government's intent to provide that Australian Standards and policy directives or documents from the Ministry of Health have legislative effect by requiring that they are followed by those performing medical gas work, setting the expectation of the high standard of work to be carried out safely.

The bill also provides a key role to the Ministry of Health, recognising its experience in issuing policy guidelines for the installation and commissioning of medical gas installations. This is intended to ensure that best practice is observed by all.Offences are applicable for not complying with new section 38B, which recognises the bill's object of safety first. In the case of an individual a maximum penalty of $55,000 will apply for a first offence or $82,500or imprisonment for two years, or both, for a second or subsequent offence, or in the case of a corporation $550,000 for a first offence or $825,000 for a second or subsequent offence. As set out in new section38B, medical gasfitters and medical gas technicians will need to adhere to the Australian Standards. The Australian Standards that relate directly to medical gases will be incorporated in the regulations.

The Government recognises that following Australian Standards will play a vital role in the licensing framework. Standards Australia, an independent organisation, is tasked with developing standards. Standards are documents that set out specifications, procedures and guidelines that aim to ensure products, services and systems are safe, consistent and reliable.The Government has already started working on which standards would need to be incorporated into the regulation, including in targeted consultation. For example, Australian Standard AS2896‑2011 "Medical gas systems—Installation and testing of non‑flammable medical gas pipeline systems" requires that certain procedures are followed to avoid gas pipeline hazards. It is intended that this will be captured in the regulation.The standards and how they are applied will be settled through extensive consultation to ensure that the standard of work required oflicensed persons under the Act not only reflect current industry standards but also ensure that people will be kept safe.

I will now turn to the existing provisions in the Home Building Act in relation to specialist work that will also apply to the new categories of specialist work. Under the Home Building Act, there are substantial penalties for contracting to do any specialist work without an appropriate contractor licence or carrying out work without an appropriate contractor licence.Section 5 of the Home Building Act provides that an individual, a member of a partnership, an officer of a corporation or a corporation must not represent that they are prepared to do any specialist work if they are not the holder of a contractor licence authorising the holder to contract to do that work.Penalties of up to $110,000 in the case of a corporation and $22,000 in any other case apply for a breach of this provision.Further, existing section 4 of the Home Building Act prohibits a person from contracting to do any specialist work except for or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising the holder to contract to do that work. This means that medical gasfitters and medical gas technicians will face penalties if they do not comply. [Extension of time.]

It is critical that these penalties apply to breaches of the Act. These penalties provide an appropriate response to misconduct that could potentially risk injury or death. These offences will ensure that anybreaches that occur throughout the installation will be punished with commensurate penalties that are not just seen as the cost of doing business.I will now turn briefly to the important work that the Government has undertaken with regard to the development of the bill and the intent of the regulations. The Government's criticisms of the private member's bill's in part stemmed from no consultation with industry experts. TheGovernment recognises that these reforms will impact on a wide variety of medical facilities and industry operators. The Government has already started consulting with these stakeholders to ensure that the regulatory scheme reflects the needs of the sector and the patients who access it.

The Government spoke to 20 key stakeholder groups and received submissions on an exposure draft of the bill and on the consultation paper. The Government also held three roundtables in July with key stakeholder groups.

This was the start of the consultation process, and there will be opportunities for further consultation. During this consultation, key stakeholder groups expressed broad support for the two categories of specialist work proposed in the bill. This further reiterates the importance of this distinction in the categories of specialist work. The Government is already considering the required experience and qualifications for medical gasfitters and medical gas technicians. While the consultation paper and roundtable facilitated discussions on the potential qualification and experience requirements, these will be the subject of further in-depth public consultation during the development of the regulation. The bill clearly outlines the Government's intent to regulate the industry and ensure a safety-first approach to this important industry. I am proud to see the Government deliver on its commitment to introduce a licensing framework for medical gas in this State. I am also proud of the Government for the consultation that has already occurred on the regulatory scheme for medical gas work, which has contributed to the quality of the bill. I comment the Minister and I commend the bill to the House.

Mr GEOFF PROVEST (Tweed) (16:05):

:48 I speak in debate on the Gas Legislation Amendment (Medical Gas Systems) Bill 2020. I commend the Minister for Better Regulation and Innovation, who is in the Chamber, for bringing this bill to the House and delivering on a commitment made by the Government in response to a private member's bill on medical gas. It is a very difficult subject. I believe what the Minister has done has shown compassion, logic and a great deal of consultation. I offer my condolences to the family who lost their young baby through a mishap with the medical gas. I was a member who was here in this Chamber when that news broke. I am sure members on both sides of the House extend their deepest sympathies to that family. It is something they have to live with for a long time. I took heart in seeing various interviews with them in the media where they campaigned to ensure another family does not have to go through this sadness. I congratulate the Minister and his team on bringing the bill to the House.

The bill introduces a wave of new reforms that, for the first time in New South Wales, will directly tackle medical gas installations in medical facilities and the management of those installations. As members have heard, the bill will require any person who installs, maintains or repairs a medical gas installation to be licensed or hold a certificate as a specialist occupation under the Home Building Act 1989. Also, any person who commissions or manages medical gas installations will also have to be licensed or certified under a specialist occupation under the Home Building Act. The bill goes that step further by amending the Gas and Electricity (Consumer Safety) Act 2017 to provide a clear and robust regulatory scheme for those two new categories of specialist works. It modifies and extends the range of safeguards already provided in that Act to effectively oversee any work done in relation to medical gas installations that supply or remove medical gases.

I am aware that one of the catalysts for the bill was the tragic situation that occurred at Bankstown‑Lidcombe Hospital in 2016. I will not canvass the circumstances of that tragic incident at this time, but I can say that the bill will help ensure that such an incident will never occur again in New South Wales. In light of that incident, I will speak about the provisions in the bill that extend the requirements in the Gas and Electricity (Consumer Safety) Act to accident reporting, and investigations and enforcement. They will ensure that any serious medical gas accident is promptly reported and properly acted upon by the Government.

New section 39 of part 6 of the Act provides that a "serious medical gas accident" is an accident caused by the use of a medical gas installation or by work carried out on a medical gas installation, as a consequence of which a person dies or suffers permanent disability, is hospitalised, receives treatment from a registered health practitioner or is unable to attend work for any period of time. This is a very strong and wide definition. It is able to catch medical gas accidents from the smallest to the most serious. New section 40 of the Act will require the occupier of the place at which a serious medical gas accident occurs to notify the secretary within 24 hours after the accident, and in the manner prescribed in the regulations. Occupiers will have separate notification requirements under legislation such as the Work Health and Safety Act 2011.

New section 41 provides that the secretary can arrange for authorised officers to investigate and report concerning a serious medical gas accident, whether or not this notice has been provided. This ensures that if another notification is provided, perhaps by the NSW Police Force or NSW Health, that an investigation can be launched. New section 42 prohibits persons from disturbing or interfering with the site of a serious medical gas accident before it has been inspected by an authorised officer. There are exceptions to this requirement, for example, to make the site safe, or with the permission of an authorised officer, or as provided in the regulations. A maximum penalty of $55,000 in the case of a corporation and $22,500 in the case of an individual applies to an offence of this section.

NSWGovernment Gazette

New section 43 provides that the secretary is able to publish any details of a serious medical gas accident that the secretary considers necessary in the interests of public information and safety. For example, this will allow the secretary to notify medical gasfitters of any identified risks or issues so they can be addressed immediately in other installations. New section 44 allows the secretary, SafeWork NSW and the Health secretary to enter into arrangements regarding investigable medical gas accidents. These arrangements can be related to matters such as the referral of accidents to the relevant authorities and the cooperative exercise of the respective functions of the secretary, SafeWork NSW and the Health secretary. This will ensure that the most appropriate investigation team or mixture of investigation teams is able to be used for a medical gas accident investigation. Any arrangements entered into between the parties will be published in the so they are able to be widely known. However, a failure to publish an arrangement will not affect its validity.

The bill extends part 7 of the Gas and Electricity (Consumer Safety) Act, which deals specifically with investigation and inspection powers, to medical gas work and, in particular, the investigation of serious medical gas accidents. New section 53 of the Act provides specific powers to authorised officers in relation to the investigation of serious medical gas accidents. An authorised officer who is investigating an accident may do a number of things in any place where a serious medical gas accident has or may reasonably be expected to have occurred. These include entering and inspecting the place, examining and testing any medical gas installation, taking photographs, taking for analysis a sample of any substance or thing that in the authorised officer's opinion may relate to the accident, and requiring any person in the place to produce any record that may be of relevance to the occurrence of the accident. In addition, the authorised officer can take copies, extracts or notes from any such record, and require any person in the place to answer questions or otherwise provide information relating to the accident. Finally, they may require the owner or occupier to provide assistance and facilities that are reasonably necessary to enable the authorised officer to exercise their functions under new section 53.

If the entry of an authorised officer is resisted, then new section 59 of the Gas and Electricity (Consumer Safety) Act is extended to provide that an authorised officer can apply for the issue of a search warrant to force entry if required. Authorised officers can gain the assistance of the NSW Police Force to gain entry if they wish, or to prevent a breach of the peace, and can also have subject matter experts accompany them to provide advice and assistance. New section 51 permits an authorised officer at any reasonable time to enter any place that the officer suspects, on reasonable grounds, to be a place in which a medical gas installation is being or is likely to be used in a manner that presents a significant risk of death or injury to any person. While on the premises the officer can do a number of things, including inspecting and testing the medical gas installation and taking appropriate measures to have the installation concerned disconnected from its supply of medical gas.

Of course, any action to disconnect a medical gas installation would only be taken under the most extreme of circumstances and with appropriate advice and assistance, where needed, from subject matter experts, medical practitioners and the person in charge of the medical facility. An authorised officer can also require any person who has possession of a medical gas installation to answer questions or otherwise provide information relating to the use of the installation, or require the owner or occupier of the place to provide the authorised officer with any assistance and facilities that are reasonably necessary to enable the authorised officer to exercise their functions.

Extension of time

Additional facilities to enable a proper investigation may be useful to enable a comprehensive and timely investigation of serious medical gas accidents. It may be necessary, following an investigation of a serious medical gas accident, to prohibit the use of the medical gas installation to require its repair or replacement of any systems. Section 52 of the Gas and Electricity (Consumer Safety) Act therefore provides a power to an authorised officer who believes on any reasonable grounds that a medical gas installation is being used in a manner that presents a significant risk of the death of, or injury to, any person, or significant damage to any property to, by written notice, prohibit the use of a medical gas installation. []

The notice is in effect for a period of two weeks following its issue, unless the secretary confirms or varies the terms of the notice, or revokes the notice. Again, of course, expert opinion and advice would be obtained before a notice would be issued. Section 52 prohibits a person from using a medical gas installation in contravention of a notice that has been issued. Contravention of this provision carries a maximum penalty of $110,000 for a first offence, or $165,000 for a second or subsequent offence in the case of a corporation, and $11,000 for a first offence, or $16,500 for a second or subsequent offence in the case of an individual.

To further demonstrate the seriousness of this offence, it is also an offence that attracts executive liability under section 63. This imposes a liability upon a director of a corporation or an individual who is involved in the management of a corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence. A person then commits an offence if they know or ought reasonably to know that the executive liability offence would be or is being committed and yet fails to take all reasonable steps to prevent or stop the commission of that offence. The maximum penalty is an exactly similar penalty for the offence committed by an individual.

In conclusion, I am confident that this bill makes the necessary changes to the licensing and regulation of medical gases in New South Wales, and will provide significant benefits and safeguards to consumers. While I have outlined the comprehensive enforcement powers available to the regulator, I hope that the new licensing measures that require certain standards to be met will reduce the need to call on those enforcement powers. My hope, and that of the Government, is that the new licensing framework will set a new high water mark for industry practice that will allow qualified persons to continue to work in this industry and keep people safe.

The amendments will restore public trust and confidence in the medical gas industry by ensuring that persons who do the work are appropriately qualified and licensed and do only the work they are authorised to do. Importantly, this bill provides greater transparency to the role and responsibilities of the two new categories of specialist work under the Home Building Act to reinforce their accountability for the benefit of this State's consumers. Again I thank the Minister for Better Regulation and Innovation for his persistence. I am sure that formulation of this legislation was not an easy task, but I admire him for bringing legislation to the House, which is a very positive outcome. I say to the Minister and his team—well done! I commend the bill to the House.

Ms FELICITY WILSON (North Shore) (16:18):

:17 I support the Gas Legislation Amendment (Medical Gas Systems) Bill 2020. I commend the Minister for Innovation and Better Regulation for bringing this bill to the House and delivering on the commitment made by the Government. Members are aware of the tragic circumstances that occurred at the Bankstown-Lidcombe Hospital in 2016 when one baby died and another sustained permanent brain damage as a result of the wrong medical gas being administered to them. Nobody in this House could ever imagine something like that occurring.

As a fairly recent parent and someone who is about to give birth to my second child, I cannot imagine—or even want to imagine—the risk associated with entrusting the care of your child to a hospital and then discovering that inappropriately installed nitrous oxide gas could so permanently injure or kill your child, which is what occurred on those two days with Amelia Khan and John Ghanem. I am sure members send their deepest sympathies to those families. While we know that there is nothing we can do to bring them back or to rectify the impairment that Amelia is suffering, we know that this legislation is a step towards ensuring that future babies will be protected from this terrible fate.

This bill is intended to address the circumstances that brought about those tragic incidents by introducing a more robust licensing and regulatory scheme for persons involved in medical gas work in New South Wales. It does this by amending the current provisions of both the Gas and Electricity (Consumer Safety) Act 2017 and the Home Building Act 1989. By doing so it extends and applies the already stringent licensing and regulatory provisions of both Acts to medical gas work. One of the provisions in the bill I highlight is the creation of an offence provision to address interference with medical gas installations. A major criticism of a recent private member's bill that was rejected by the Parliament was that by seeking to amend only the Home Building Act it did not create any specific regulatory offences in relation to medical gas work—either in relation to the work itself or in relation to the medical gas infrastructure. The additional work that has been done means that this bill remedies that by, for example, inserting n 38D into the bill.

Clause 38D requires that a person who carries out any type of work for fee or reward at or near a place where a medical gas installation is located must ensure that the carrying out of the work, and the work, does not interfere with the installation in a way that adversely affects the safety of the installation. This clause is intended to address situations where, for example, other work is done in a medical facility where a medical gas installation is situated. The persons carrying out that work are required to ensure that their work does not interfere with the safety of the medical gas installation. This provision will work to ensure not only the safety of the installation but also the continuity of operation of the installation as much as is possible. A maximum penalty of $55,000 in the case of a corporation and $22,000 in the case of an individual applies for a breach of this provision.

Clause 38D also requires that a person who carries out any type of work at or near a place where a medical gas installation is located and carries out the work in a way that adversely affects the safety of the installation, and knows, or ought to have known that the installation has been adversely affected, then has a responsibility to act. The person must, as soon as is reasonably practicable after becoming aware that the installation has been adversely affected, take reasonable steps to make the installation safe. An example could be construction work in part of a hospital that damages the medical gas system in some manner. As the person would not be licensed or certificated to be able to address the issue, they would immediately notify the person in charge of the hospital or person in charge of the installation to advise them of the situation.

I consider that to be the kind of response envisaged by the legislation where a person is faced with such a situation. They would not be able to walk away and do nothing. A maximum penalty of $55,000 in the case of a corporation and $22,000 in the case of an individual applies for a breach of clause 38D. A second provision of the bill I will mention briefly is clause 38C, which places responsibility on the occupier of the place where the medical gas installation is situated or, where there is no occupier, the owner of the place to ensure the proper maintenance of the installation. Clause 38C provides that this person must, to the best of their ability and knowledge, ensure that any parts of the medical gas installation that are prescribed by the regulations are maintained in accordance with the regulations while the installation remains connected to the source of supply of medical gas.

We have heard that medical gasfitters and medical gas technicians have their specific roles under the provisions of the bill. These relate to the installing, repairing, testing and commissioning of medical gas installations installed in medical facilities. However, this does not take away the responsibilities of the owner or occupier of the premises where these installations are placed. If something goes wrong they cannot turn a blind eye and say that the medical gasfitter or technician is solely responsible. In effect this means that while medical gasfitters and medical gas technicians have their roles and responsibilities under the bill, so too does the owner or occupier of the premises in which the medical gas installation is situated. If the owner or occupier is made aware of any defective work then they would be expected to take positive steps as quickly as is possible to ensure that the work was rectified to ensure the safety of the medical gas installation. They must ensure that only appropriately licensed or certificated persons work on their medical gas installation.

An owner or occupier cannot just wait to be advised that their medical gas installation is unsafe, and that work needs to be done urgently or steps taken to decommission it to protect patients. They must take positive steps always while the installation is in operation to ensure its ongoing safety. This responsibility placed on the owner or occupier may possibly be onerous, but it is essential to ensure the safety of consumers and to prevent these tragic incidents from ever occurring again.

The owner or occupier may have to take steps, including engaging suitably licensed persons to oversee the work done, check the work, and ensure as much as is possible that the installation operates properly and safely at all times. A breach of clause 38C would be regarded as serious to demonstrate that a maximum penalty of $55,000 in the case of a corporation and $16,500 in the case of an individual applies for a breach of clause 38C. The regulations will prescribe the parts of the medical gas installation that will be applicable under clause 38C and its maintenance. These requirements will be subject to the very wide consultation process that has been seen in the development of this bill.

These provisions will enhance the regulation of the medical gases sector by enabling Fair Trading, as the regulator, to deal not only with licensees, but with owners and occupiers where medical gas installations are located, to ensure the safety of the public. I commend the Minister for this bill. It brings necessary reforms that will help ensure that consumers are better protected and is an important step in the Government's commitment to address medical gas work in the State. This bill acknowledges the significant impact upon and loss to both the Ghanem and Khan families. I commend the bill to the House.

Mr JAMIE PARKER (Balmain) (16:25):

:44 I speak to the Gas Legislation Amendment (Medical Gas Systems) Bill 2020 on behalf of The Greens. I will say at the outset what a tragedy. The member for North Shore is about to have her second child and I have just had my first child. I cannot imagine how traumatic it would be to see such a catastrophic mistake leading to a death and a severe disability. It is not something that any of us could contemplate. We must always be vigilant. As lawmakers in this State we are ultimately responsible. There is a big push for deregulation and less red tape to allow greater flexibility, but as we can see in this situation having a light touch—which is the vogue statement—would have a devastating impact. We did not have adequate and rigorous systems in place to ensure that the installation of this technology was conducted by those with the correct training, oversight and regulation.

That situation facilitated this terrible outcome. The Chief Health Officer, Dr Kerry Chant, PSM, investigated these cases and said that if the correct procedures had been followed when the gas was installed in July 2015 the error would have been identified. It is something we can all lament. The contractor incorrectly installed the pipes and they subsequently were not tested properly or commissioned. We must resolve this issue. It is disappointing that this installation occurred in 2015 and we are now in 2020, five years later, and the bill is only now before us.

Part of the reason why we are debating this now is due to the Hon. Mark Buttigieg having introduced a bill in the upper House on behalf of Labor. He introduced the Building Amendment (Mechanical Services and Medical Gas Work) Bill 2020. Whilst that bill was defeated, I have no doubt that it was the catalyst for action on this issue. It demonstrates that members who may not be in Government, who may be in the upper House, or in this place on the crossbench, can make a significant difference. They can drive the agenda by encouraging the Government, supporting them, shaming them or through a range of different methods to achieve a good outcome.

As I said from the outset, The Greens will not oppose the bill. There is a lot worth supporting in this bill. We are attracted to the amendments that will be moved in the other place. There are four separate amendments. I will not go through them in detail, they will be dealt with in the other place. The point that we seek to make today is the importance of the outlier. In situations such as this there can be 99 out of 100 installations that are perfect, but it only takes one to have a catastrophic impact. Whether it is nitrous oxide or oxygen in medicine, or the building and construction industry, or a range of other industries, we must ensure high and rigorous standards of regulation.

Training and licensing must be up to scratch. We had this issue with private certification. There must be registration processes where there is oversight, compliance and review that ensures the one in 100, the one in 1,000 or one in one million does not happen. When it does happen it has an horrific impact on families and on the lives of those two young children. The Queensland Parliament responded quickly by introducing a rigorous system and we need to do the same here. In 2018 the Queensland Government introduced legislation in response to the gas situation in New South Wales. It is a challenge and difficult for Ministers and Government. Portfolios are broad and complex, and there is a turnover of Ministers, especially in the less senior portfolio areas in Government. We must support the public service to do rigorous investigation and develop the policy that can be brought to Parliament in a timely way.

For example, it has been almost three years since the Government agreed to introduce the Public Interest Disclosure Bill amendments that the ICAC inquiry recommended, but it still has not happened. We need to ensure there is quick and effective response to these issues. It has been far too long from installation in July 2015, 2016 when this tragic incident occurred, to the introduction of this bill. I acknowledge that we have stepped forward, I support the bill and I hope the Government will look favourably upon the amendments introduced in the upper House. I commend the bill to the House.

Mr ADAM CROUCH (Terrigal) (16:31):

:17 I proudly speak on behalf of the Government in support of the Gas Legislation (Medical Gas Systems) Bill 2020. I support this fantastic piece of legislation. I acknowledge the excellent contributions from the member for Holsworthy, the member for Wollondilly, the member for Coffs Harbour, the member for Tweed and the member for North Shore. I believe there will also be a contribution from the outstanding member for Cootamundra. I am pleased to stand here in support of this bill. I commend the Minister for Better Regulation and Innovation for bringing this bill to the House and delivering on the commitment made by the Government in its response both to the private member's bill in June 2020 and the tragic incidents that occurred at the Bankstown-Lidcombe Hospital in 2016.

This bill is the appropriate response to those incidents in June and July 2016 in which two newborn babies were mistakenly administered nitrous oxide through an oxygen outlet at the hospital. As a result of being administered the wrong medical gas, baby Ghanem passed away and another baby suffered serious brain injuries. It is a tragedy of epic proportions, as every member of this House has acknowledged today. The wrong medical gas was administered as a result of errors in installation and construction work that was undertaken at the Bankstown‑Lidcombe Hospital in 2015 to install piped oxygen delivery outlets to the neonatal resuscitaires in the operating theatres. Further failure to test the gases before the new outlets were commissioned resulted in an oxygen outlet in one of the operating theatres dispensing nitrous oxide instead of oxygen. Tragically, this was not discovered until after both incidents.

The Government made a commitment to bring forward legislation to strengthen the regulation of medical gas work and this bill does exactly that. I once again extend my deepest sympathy and condolences to the families of the two babies. One of the key criticisms of the private member's bill back in June was that it sought to rely solely on the provisions of the Home Building Act 1989 to provide for the regulation of medical gases. The private member's bill did not provide any specific regulation for medical gas installations or place any requirements on the owners or occupiers of places where medical gas installations were situated to ensure they were safe and secure. The Government's bill does that. It amends, incorporates and extends the already strong regulatory provisions of the Gas and Electricity (Consumer Safety) Act 2017 to medical gases in New South Wales. In addition to placing licensing requirements on the persons responsible for installing, servicing and commissioning medical gas installations, the Government's bill places key regulatory responsibilities on licensees and certified holders through the amendments to the Gas and Electricity (Consumer Safety) Act.

One of the key responsibilities is the requirement placed on a "responsible person" to have to provide written notice of any defective medical gas installation to a range of persons including the Secretary of the Department of Customer Service. The purpose of that requirement is to ensure that defective work is brought quickly to the notice of those responsible for the safety of the medical gas installation and that action is taken to rectify the situation. The requirement may require licensees to report on work done by other licensees, resulting in disciplinary or other action being taken against them. The Government recognises this, but a safety first attitude in relation to medical gas work must, and will, be taken. Licensees will be encouraged to report defective work and the Government will welcome such reports. New section 38E provides:

The responsible person for medical gasfitting work carried out on land must, within the period prescribed by the regulations, give the following persons written notice of any defective medical gas installation on the land discovered in the course of carrying out the medical gasfitting work—

(a) the owner of the land,

(b) the occupier of the land (if the owner does not occupy the land).

A maximum penalty of $11,000 will apply if a notice is not given within the prescribed period. The section defines a "responsible person" for medical gasfitting work as the holder of a licence or certificate under the Home Building Act that authorises the person to do medical gasfitting work. If the work is done under the immediate or general supervision of the holder of an endorsed contractor licence or a supervisor certificate under the Home Building Act, then the responsible person is the holder of that licence or certificate. The responsible person for medical gasfitting work must also, within the prescribed period, give the secretary written notice of any defective medical gas installation that poses an imminent threat to public health or safety discovered in the course of carrying out medical gasfitting work. A maximum penalty of $11,000 applies for a breach of that provision. New section 38E clarifies:

A defective medical gas installation is discovered if the responsible person, or a person carrying out the medical gasfitting work under the responsible person's supervision, becomes aware that the installation concerned is defective.

Those provisions are directly linked to the responsibilities placed on persons concerning the safety of medical gas installations under new section 38C of the bill. Persons responsible for medical gas installations, whether the occupier of the place or, if there is no occupier, the owner of the place, cannot ignore the receipt of a notice given to them under the provisions of new section 38E. New section 38C provides that a person must, to the best of their ability and knowledge, ensure that any parts of the medical gas installation prescribed by the regulations are maintained in accordance with the regulations while the installation remains connected to the source of supply of medical gas.

Medical gasfitters and medical gas technicians have their specific roles under the provisions of the bill. They relate to the installation, repair, testing, servicing and commissioning of medical gas installations in medical facilities. However, that does not take away the responsibilities of the owner or occupier of the premises where installations are placed. They cannot turn a blind eye and say that the medical gasfitter or technician is solely responsible if something goes wrong. That means that while medical gasfitters and medical gas technicians have their roles and responsibilities under the bill, so too does the owner or occupier of the premises on which the medical gas installation is situated. If the owner or occupier is made aware of any defective work by receipt of a notice under new section 38E, then they would be expected to take positive steps as quickly as possible in order to ensure that the medical gas installation is safe.

An owner or occupier cannot just wait for the receipt of a notice under new section 38E to discover that their medical gas installation is unsafe and work needs to be done urgently or steps need to be taken to decommission it to protect patients. As I said, they must always take positive steps to ensure the safety of the installation while it is in operation. The responsibilities placed on the owner or occupier may possibly be onerous, but they are essential to ensuring the safety of consumers and to preventing tragic incidents from ever occurring again. The owner or occupier may have to engage suitably licensed persons to oversee the work done, to check the work and to ensure that the installation operates properly and safely at all times.

A breach of new section 38C would be regarded as serious. In order to demonstrate that, a maximum penalty of $55,000 in the case of a corporation and $16,500 in the case of an individual applies for a breach of the section. The regulations will prescribe the parts of the medical gas installation that will be applicable under new section 38C and their maintenance. These requirements will be subject to the wide consultation process that existed throughout the development of the bill. I commend the Minister for that. The reforms in the bill will provide more robust accountability for all parties involved in medical gas work. I am confident that the bill will promote and deliver public confidence in the delivery of safe medical gases across New South Wales. I again highlight the extensive consultation that the Minister and his team have undertaken. This is a very complex and very emotive subject. I again thank the Minister for his work. I commend the bill to the House.

Ms STEPH COOKE (Cootamundra) (16:41):

:19 I speak in support of the Gas Legislation Amendment (Medical Gas Systems) Bill 2020. I commend the Minister for Better Regulation and Innovation for bringing it to the Parliament. I will remind members just how important the reforms in the bill are. The reforms deliver on the commitment that the Government made in response to the Building Amendment (Mechanical Services and Medical Gas Work) Bill 2020, introduced by the Hon. Mark Buttigieg. I thank the honourable member for introducing his bill; however, the Government could not support it in the form presented because it was not able to effectively regulate the sector and back up the intention presented by the honourable member. In response to the private member's bill and the tragic incidents that occurred at the Bankstown‑Lidcombe Hospital in 2016, the Government committed to delivering a robust licensing framework for medical gas systems in medical facilities across New South Wales.

As members know, the tragic incidents at Bankstown-Lidcombe Hospital resulted in one baby dying and another sustaining serious brain damage as a result of being administered the wrong medical gas. I cannot begin to understand what the families of those babies have been through, and are still going through. However, I am proud to support the Government's commitment to take every action and make every effort to best prepare ourselves to prevent such a tragic event from ever occurring again. The Government's bill provides for a strong licensing framework for people performing medical gasfitting work and medical gas technician work in medical facilities such as public and private hospitals, day surgeries and dental clinics. The Government has examined the circumstances of the incidents at Bankstown-Lidcombe Hospital, including the outcomes of the legal proceedings that followed. It has taken those circumstances into account and the bill has been designed to try to ensure, as much as possible, that they are never repeated.

The priority of the bill is safety first. One way that it takes into account the circumstances of the incidents is in designing the licensing framework, which will require that persons carrying out medical gasfitting work or medical gas technician work must do so in compliance with any standards or requirements prescribed by the regulations. The requirement in the Government's bill to comply with the Australian standards is something that the private member's bill did not have. This is made possible in this bill by extending the licensing framework to the Gas and Electricity (Consumer Safety) Act 2017 and drawing on the strong compliance and enforcement powers in that Act for medical gas installations.

The bill inserts new clause 38B into the Gas and Electricity (Consumer Safety) Act to require that a person must not carry out medical gasfitting work or medical gas technician work otherwise than in accordance with any standards or requirements prescribed by the regulations and any standards or requirements specified by the Secretary of the Ministry of Health by order in writing, as published on the website of the NSW Ministry of Health. This clause will contribute towards having an effective and robust licensing framework. The Government will be able to require compliance with the established Australian standards on medical gas installation and with any standards or requirements that the Secretary of the Ministry of Health sees as appropriate. This clause recognises the importance of Australian standards and of the expertise within the NSW Ministry of Health.

Clause 38B sets out the Government's intent in relation to the expected standard of work. The detail of the standards and requirements is left to the regulations. The legislation makes it clear that the New South Wales Government expects medical gasfitters and medical gas technicians to carry out work in accordance with standards and requirements. This provides for an additional layer of oversight of medical gasfitters and medical gas technicians as anyone holding a licence will be required to comply with standards and requirements. Clause 38B also recognises the important role of Australian standards.

This requirement has been subject to targeted stakeholder consultation. The Government undertook targeted consultation, including three round tables and providing a draft exposure bill and consultation paper to 20 key stakeholders. Stakeholders supported that the regulation of medical gas work in New South Wales should comply with and not detract from Australian standards. The Government has listened to this feedback. For example, the definition of medical gas aligns with the definition in the Australian standard for medical gas. This provides for consistency in the requirement to comply with Australian standards within the licensing framework set out in the bill.

I would like spend some time considering what Australian standards actually are to give comfort to members about the ability of this bill to set industry best practice as the minimum standard required of people operating in this space. Australian standards are published, living documents that set out specifications and design procedures and guidelines. Standards Australia, an independent organisation, is the overarching body tasked with developing Australian standards, which aim to ensure products, services and systems are safe, consistent and reliable.

Standards are developed and reviewed by Standards Australia's technical committees, which are made up of a range of interested parties and technical experts. In reviewing the standards, Standards Australia ensures that it keeps up to date with new technologies. In addition, standards are developed in close consultation with industry, business, consumers and governments from across Australia. Standards are nationally recognised and, while standards are not considered laws, complying with an Australian standard may be a legislative requirement in different States and Territories. The New South Wales health and safety legislation requires conformance with particular standards. Failure to do so may result in a breach of that legislation, in many cases resulting in liability for significant penalties.

The bill will operate alongside these existing requirements for persons who undertake medical gas work. Including a regulation-making power for compliance with specific Australian standards provides the Government the flexibility to include standards with ease. This is to keep on top of the changing Australian standards which, as I mentioned, are reviewed on a regular basis. The Australian standards that relate directly to medical gases will be incorporated into the regulations. This is intended to ensure that medical gas systems are installed correctly and, once installed, are regularly tested to ensure all components are continuing to operate safely, reliably and consistently.

Extension of time

The bill includes penalties for noncompliance. This recognises the seriousness of licensees observing the relevant Australian standards and the consequences for failing to do so. The same offences apply for failing to comply with any policy documents issued by the NSW Ministry of Health. In the case of an individual, a maximum penalty of $55,000 will apply for a first offence and $82,500 or imprisonment for two years, or both, for a second or subsequent offence; or in the case of a corporation, $550,000 for a first offence and $825,000 for a second or subsequent offence. In developing the supporting regulations the Government will undertake further consultation to determine the specific standards that should be complied with in medical gas installations. []

However, I would like to highlight one of the key Australian standards that the Government intends to prescribe as a standard that medical gasfitters and medical gas technicians will be required to comply with under the licensing framework. Australian Standard [AS] 2896, Medical gas systems—Installation and testing of non‑flammable medical gas pipeline systems, sets out the requirements for the safety aspects, construction, testing and certification, operation and maintenance of non-flammable medical gas pipeline systems used for patient care, therapeutic, diagnostic and for operating surgical tools. Australian Standard AS 2896 recognises that for the installation of a pipeline a high quality of workmanship and experience is essential. Further, Australian Standard AS 2896 sets out the scope, definitions, sources of supply, general requirements such as for alarm systems, materials and pressure gauges, as well as the installation requirements for pipelines, testing and certification, and the maintenance requirements. These are all important components of medical gas work.

The Government recognises the role of Australian standards and this bill provides fit-for-purpose legislation through specifically requiring people who carry out medical gasfitting work to comply with standards and other requirements prescribed by the regulation. Calling out the requirement to follow Australian standards as a licensing condition provides for an additional layer of industry oversight for this important industry. This further demonstrates the Government's commitment to safety first in this bill. It also provides extra enforcement and compliance provisions and powers within the Gas and Electricity (Consumer Safety) Act that can be used. This bill clearly outlines the Government's intent to regulate the industry and to ensure a safety-first approach to this important industry. I commend the bill to the House.

Mr KEVIN ANDERSON (TamworthMinister for Better Regulation and Innovation) (16:53):

—:24 In reply: I thank members for their contributions to the debate on the Gas Legislation Amendment (Medical Gas Systems) Bill 2020. I particularly thank the following members for their contributions: the member for Swansea, the member for Coogee, the member for Lakemba, the member for Holsworthy, the member for Wollondilly, the member for Coffs Harbour, the member for North Shore, the member for Terrigal, the member for Cootamundra, the member for Tweed and the member for Balmain. I turn now to some of the concerns raised by members during the debate.

A number of speakers raised concerns that there had been a lack of consultation on this bill. As I noted when the Government opposed the private member's bill, a key criticism was the clear lack of consultation on the regulatory proposals outlined in that bill. As I committed at the time, the Government has partnered with key stakeholders representing all areas of the medical gas industry and listened to their feedback. The bill and its policy proposals have already been the subject of significant targeted industry consultation. The Government has facilitated the feedback of stakeholders through the release of a consultation paper and a draft of the bill, and held three comprehensive roundtables. We have carefully considered the feedback received and listened to the voices of 20 key stakeholder groups across the medical fraternity—gas suppliers, gasfitters, plumbers, dentists and training providers.

These groups included representatives of the medical industry: the Australian Dental Association, Australian Medical Association, Australian Private Hospitals Association, Australian Society of Anaesthetists, Day Hospitals Australia, and the New South Wales Operating Theatre Association. They also included gas suppliers and installers: Air Liquide Healthcare, Australia New Zealand Industrial Gas Association, BOC Limited, Coregas and Hoslab. These stakeholder groups also included the Master Plumbers Association, the Plumbers Union of NSW, the Plumbing Industry Climate Action Centre, Aged & Community Services, Leading Age Services Australia, Engineers Australia, SC Medical, and the Insurance Council of Australia.

Importantly, we have actioned a large amount of that feedback directly through the bill. I am confident that the bill responds to a significant portion of those submissions, either through further refinements to the bill or through broad regulation-making powers, affording us the scope to make refinements under the regulations following further consultation with stakeholders and industry. The Government is continuing to work on the bill with key stakeholders in drafting the regulations. Members of the Opposition suggested that New South Wales should license in the same manner that Victoria and Queensland have done by introducing a mechanical services category within the licensing framework for those working on mechanical heating, cooling and ventilation systems in buildings. Again, I note that the Opposition bill appears to mirror the Victorian plumbing legislation without considering how the legislation would interact with New South Wales laws. This work is already licensed in New South Wales through air conditioning and refrigeration work in residential and commercial buildings as a specialist work category in the Home Building Act. We also license roof plumbing.

To pick up other parts of the Opposition bill at this time would cause an unintended consequence and upheaval for the 23,000 people and businesses who are already licensed in New South Wales by introducing a new licensing class. It is not appropriate at this time to include mechanical services in New South Wales. Mechanical heating and cooling systems used in air conditioning are already captured under the current licensing framework in New South Wales. While the Government appreciates that some of the skill sets for plumbers and gasfitters will be the same for work done on medical gas installations, the Government maintains that a separate category dedicated to medical gas work is necessary. Amalgamating medical gas work into mechanical services, which covers an array of other work, will add another layer of complexity.

At present Victoria, Tasmania and Queensland have licensing frameworks for medical gases. There is no licensing framework for medical gases in Western Australia, South Australia, the Northern Territory or the Australian Capital Territory. These jurisdictions have oversight by other means, such as policy directives. The bill represents a high water mark for regulating this space as New South Wales will be the only jurisdiction to specifically focus on the conduct of persons engaged in the commissioning of medical gas installations.

Debate interrupted.