ENVIRONMENT PROTECTION (SITE CONTAMINATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2007. Page 989)

Mr GRIFFITHS (Goyder) (15:56): I confirm that I will be the lead speaker for the opposition this afternoon for this bill.

Mr Koutsantonis: Hear, hear!

Mr GRIFFITHS: I thank the member for West Torrens for his confidence in me. The Environment Protection (Site Contamination) Amendment Bill was introduced in the Legislative Council on 1 May. I am aware that this has been many years in the planning, and no doubt there are issues with contaminated soils all across South Australia. The benefit of hindsight is certainly a wonderful thing, but, in reality the history of the development of South Australia has included many activities that are now causing enormous concern as our state and our economy grow and development occurs. These developments were needed at the time—predominantly they were on the fringe of the city and towns and deemed to have been in an appropriate location—but, we now know that the cost of remediation will be immense if future development proposals are to take place without the possibility of exposing residents to any health risks. The majority of other states have similar legislation in place. The last, I believe, to enact this type of legislation was Western Australia in December 2006.

The bill is designed to deal with issues where soil contamination occurred prior to the implementation of the Environment Protection Act 1993, which came into force on 1 May 1995. The minister's second reading speech, which I have read in some detail, referred to developments such as the Port Adelaide waterfront, where the Land Management Corporation is undertaking work at a value of some $40 million to allow a redevelopment of up to $2 billion to take place. No doubt this will be the way of a lot of future developments also. Indeed, one of the promotions for a television show last night talked about the remediation costs for the rail yards to allow the development of the Marjorie Jackson-Nelson hospital. They referred to a figure, I believe, of some $700 million. I did not get a chance to watch the show—

The Hon. J.D. Hill interjecting:

Mr GRIFFITHS: The minister is shaking his head at that but, given that the budget shows only $15  million, it will present a bit of a challenge. I find it quite amazing—and I hope that the minister is able to correct my comments—but no doubt it will cause a headache for the Premier, the Treasurer, the Minister for Health, and the government in trying to fund this project if remediation costs blow out to that sort of figure. I wish to commend—

Mrs Redmond interjecting:

Mr GRIFFITHS: Yes. As the member for Heysen says, especially as the government has to pay that and it is not part of the public-private partnership development cost. I wish to commend the shadow minister, the Hon. Michelle Lensink, for her work on this bill. I also want to thank the officers who provided the briefing to members of parliament. Many, like myself, had a lot of questions to ask, but we were provided with good answers that gave us an understanding of the intention of the bill. We have been very concerned about this. In our portfolio debates and party room debate on the matter we really did recognise the importance of this bill and the issue involved, and we want to contribute as much as possible to try to improve it. I am pleased that some amendments have been considered.

It is fair to say that some opposition MPs have a historical perspective on this bill because they were involved in government when it was first discussed. In my own case, though, my previous involvement in local government has made me acutely aware of the need to ensure that the potential contamination of development sites needs to be investigated. Detailed historical knowledge of the use of the land is not always available, nor, indeed, is knowledge of for what use adjoining or close land to that development has been used in previous years. No person wants to see a development proceed on the assumption that everything will be okay only to find out at a later date that the ground was contaminated and there is a need for an expensive remediation, a health risk is posed to people who live there and there is the threat of the development becoming useless.

I think I can recall that Housing Trust premises somewhere in the metropolitan area needed to be vacated because the ground was found to be contaminated. Even in my own electorate of Goyder, I am aware that, about three years ago, a development application was received for a tavern at the small coastal community of Corny Point. It was on land on which a fuel depot was based previously and there was an underground petrol storage facility. We demanded that the developer undertake an audit of that site to prove that it was okay. He did not want to do it and legislation did not necessarily give us the capacity to do that. This bill will trigger those things occurring as a matter of course.

I will refer to a few things on which the shadow minister has provided some information. The opposition did consult quite widely on this matter. We spoke to Business SA, the Local Government Association, the Property Council, the Master Builders Association, the Motor Trade Association and the Engineering Employers Association. Clearly, the bill was a risk-based approach to remediation; that is, it does not assume that the existence of pollution is equivalent to contamination that must be remedied: it depends upon its intended use of the site. It is also based on the principle of the polluter pays and it relies on the elements of contract law. Establishing that a site is contaminated is not dependent upon what volume of pollution exists on a site. For example, a site may contain a volume of carcinogens, but if no human will enter it and the pollution is not harming the environment, it is not deemed to be contaminated. It depends also on what the site is to be used for. In particular, if a site is to be developed for a sensitive land use—and a school would be a good example—the site contamination process will be triggered. The standards for industrial zoned land are obviously not as high as for sensitive land use such as schools and residential developments.

Site contamination is not pollution; in other words, a site with contamination will not have to be cleaned up completely: it only needs to be remedied to the appropriate level for its intended use. This is a significantly different approach from that in some other jurisdictions which requires the contamination to be cleaned up completely, which is a very costly process. A key thing in the consideration of the opposition was: who will be asked to assess the condition of the allotment and clean it up, and therefore who pays?

In the first instance, the EPA will serve notice on the appropriate person who is either the original polluter, if that person is able to be identified and found and if in fact they are still alive, or the current owner of the site. These provisions will not proceed if the appropriate person has died or, in the case of a body corporate, if it has ceased to exist, cannot be located or does not have the financial resources. A person who brings about a change of land use that results in site contamination becoming relevant—for example, a developer wants to convert an old industrial site into a residential development—will be deemed to have caused site contamination. A key issue for such people and developers to consider on any land that they acquire is to determine the condition of that soil.

The Environment Protection Authority has been given powers under this bill both to serve a site contamination assessment order and to assess the site of risk; that is, conduct an audit and then potentially a site remediation order. This bill respects the arrangements between the vendor and the purchaser to devalue polluted land and to transfer the liability for contaminated land to the purchaser as part of the price. I note in Hansard from the Legislative Council the extensive comments of the Hon. Mark Parnell on this issue and his example of where a completely innocent person purchased a block of land with the intention of developing it, but did not have the capacity to remediate the land, and therefore did not have the capacity to develop it in any way and the land became useless to them and they could not give the block away. As information provided to us by the Environment Protection Authority indicates, without the inclusion of retrospective provisions, this bill would not offer any benefits above the current act. The EPA is aware of several significant issues that it is powerless to pursue because the pollution occurred prior to 1995. This bill will allow that to be corrected.

I note that, in reviewing Hansard, eight amendments were proposed by minister Gago, nine amendments were proposed by the shadow minister (Hon. Michelle Lensink) and five amendments were proposed by the Hon. Mark Parnell. Some of those were supported, some rejected and some withdrawn, but it shows that the parliamentary process has worked quite well in this case. Many groups have had input: it has been years in the development. Let us hope that the act will serve its purpose and give some surety to development opportunities in South Australia. With those few words, I confirm the opposition's support for the bill.

The Hon. S.W. KEY (Ashford) (16:06): I am very pleased to be part of this debate. It is an area in which I have been interested for quite some time. As members in this chamber may be aware, I served on the Housing Trust board for some 12 years and this was an issue of great concern, particularly before we had an urban development system or city planning of any note, other than obviously the establishment of Adelaide. There was real concern about sites that had been used for many purposes. Whether it be contamination caused by foundries or whether it be contamination caused by the tanning industry, the contamination makes it very difficult to then set up residential facilities or even commercial sites without there being some sort of remediation. In June this year I also had the honour of attending an international conference about contaminated sites and remediation. It was an international conference hosted by South Australians. Some 30 countries were represented at this conference. They were looking at this issue and also at some of the advances that have been made regarding site contamination, and how polluted substances and infill from contaminated sites can be turned into successful chemicals for agriculture and other purposes.

As I said, I am very happy to support this bill. I believe that it is a significant piece of legislation that has been in the making for a number of years, and I am pleased that it has finally come to fruition. I know that there has been extensive consultation making sure that people who should have their say have been able to develop the draft bill. Some of the stakeholders include Business SA, the Local Government Association and the Property Council of Australia. I think this bill will fill a significant gap in our legislation as South Australia is one of the only states or territories that does not have legislation to manage site contamination.

This amendment to the Environment Protection Act is necessary as current powers under the act do not extend to contamination resulting from activities that occurred before the commencement of the act on 1 May 1995. Again, many members in this chamber will have come across different problems in terms of residents—our constituents—living next door to particular industries or where industries have been located and the problems associated with that cohabitation. By not having a legislative framework to adequately regulate and manage the assessment and remediation of site contamination we are posing the risk that negative public health, environmental, social and economic impacts may arise as a result of site contamination.

My colleagues on this side of the house will mention other aspects of the bill, but I would like to talk about one particular part of the bill, which aims to set up an accreditation scheme for site contamination auditors. I am particularly interested in this area as I believe there are some great analogies with the need for accreditation in the area of occupational health and safety. Certainly in the environment protection area it is important that we also have this accreditation scheme. I am aware that a concern was raised by one part of the development industry that the use of auditors would increase costs and delay development.

Obviously, this is something that needs to be taken into consideration. Another concern raised was that not enough auditors would be available to handle this legislation and any sudden demand. In the first instance, I am informed that better developers in this state have been using auditors accredited in Victoria or New South Wales on projects such as the Port Adelaide waterfront redevelopment. There will certainly be an increase in the demand for auditors when this legislation is operated on, but I am told that more than 65 auditors exist in Victoria and New South Wales, and more have been accredited under the Western Australian act.

These professionals can apply to become accredited auditors in South Australia through an automatic process under our mutual recognition legislation. While concerns have been raised, I am advised that this process should assist in that respect. Further, the accreditation of suitable South Australian applicants can occur between the time of assent to the bill and its commencement, which is envisaged to be some 12 to 15 months from the assent to major parts of the bill. On this point, the house should note that some parts of the bill will come into operation ahead of others.

It is envisaged that the provision to accredit auditors—including, for example, interstate auditors—will come into operation before others to ensure that sufficient auditors are available. Many of these require supporting regulations. Initial drafting instructions for the regulations based on the current bill have been prepared and will be finalised upon assent. Members of this house should also note that the draft regulations will be subject to consultation. Where an assessment or remediation order is given an auditor may be required and there will be costs.

However, not every assessment or remediation order will automatically require the use of an auditor. Whether an auditor is required will depend on the degree of risk arising from the contamination. Another of the strong points of the bill is that it is a risk-based approach to managing contaminated land. Where an audit is to be undertaken, in accordance with the development proposal, there will be costs. These will form part of the total development costs that are borne by developers in other jurisdictions. I am sure that members in this house would agree that an audit by a suitably qualified professional is necessary to ensure the land is fit for its intended use. As I mentioned earlier in my contribution, auditors are already being used by developers as best practice. This bill will provide a more even playing field for developers and for the benefit of us all. Members in this house should also note that, throughout the western world (including Australia), where assessment and remediation of derelict contaminated land known as brownfields has occurred, the property value has increased substantially.

As I mentioned with regard to the international conference I attended in June this year, this issue was raised by many of the contributors to that conference. Interstate one can mention Homebush and the Melbourne waterfront while in South Australia we have the contaminated rail yards at Mile End, which is very close to the electorate of Ashford. I am also sure that the member for West Torrens will be pleased to hear that an intensive remediation process took place with regard to developing some of the beautiful sporting complexes that we now have in that area. These areas are used extensively by local, national and international athletes. The SANTOS Athletics Stadium, the netball complex and more than 30 residential allotments have certainly benefited from a proper process being put in place with regard to contamination, identification and remediation. I commend the bill to members.

Mrs GERAGHTY (Torrens) (16:15): I express my support for this bill. Like the member for Ashford, I have a great interest in this bill for a varied number of reasons. There is a demand for land in South Australia, in particular for residential land in the Adelaide metropolitan area, which is leading to the redevelopment of former industrial/commercial areas and other areas such as market gardens where activities were undertaken that have resulted in site contamination. A number of areas in my electorate are under redevelopment and, luckily, at this time these redevelopments are not inflicted with this problem. The Port Adelaide waterfront development is one example of the redevelopment of contaminated land.

It is important for the house to recognise that the bill is about dealing with site contamination from historical activities. This contamination already exists and may pose a significant risk to human health or the environment, but we do not have the powers to deal with historical contamination that occurred before 1995. Current pollution that may lead to site contamination is addressed by the current Environment Protection Act where the pollution occurred after 1 May 1995. We need this amendment to address pollutions that have occurred in the past. This bill has many innovative provisions, such as the transfer of liability to allow the legal transfer of full or partial responsibility for the site contamination on the sale or transfer of land from vendor to purchaser subject to agreements.

I would like to focus on one strength of the bill, namely, its risk-based approach to dealing with site contamination. The bill takes a risk-based approach to managing contaminated land by enabling the EPA in the first instance to require the appropriate persons—initially the person who caused the contamination—to carry out an assessment of the land to determine the nature and extent of any contamination. Depending on the findings of this assessment, if necessary, because of the degree of risk, the EPA can require the remediation of that land. Taking a risk-based approach to determining whether site contamination exists is commensurate with better regulation principles espoused by national and state governments and places South Australia ahead of comparable legislation in other states.

We have to ask ourselves: how does this bill work? One way is through the definition of site contamination using a risk-based approach. Under the definition it is not enough for there simply to be chemicals on a site. In the first instance, these chemicals must have been added to the site as a result of an activity by a person and they must be above background levels. This legislation does not apply to situations where chemical substances are at higher than normal levels due to natural processes.

The second important part of the definition of site contamination is that the mere presence of these chemicals is not enough. Their presence must result in actual or potential harm to the health or safety of humans and to the environment or water. However, when assessing whether or not site contamination exists, the impact on health or the environment must take into account the land use where the contamination exists. For example, if there are chemicals on a particular site (using the risk-based approach), if the land is used for an industrial purpose, there may not be a risk to the health of humans or the environment. Therefore, site contamination does not exist and the EPA would not become involved. If the same land were to be used for a sensitive land use such as that which is defined in the bill (for example a primary school or a preschool), there would be a risk to the health of young children and site contamination would be said to exist. One may ask why young people may be more vulnerable than adults on this site if it was changed from industrial to residential use.

The Hon. I.F. Evans: Yes; I would ask that.

Mrs GERAGHTY: Thank you; I am glad that someone is listening. It is because worldwide it is recognised that young children are more inclined to put dirt in their mouth. As a result of having children, I know that. I know they like to eat blowflies, as well, but we do not want them putting contaminated goods in their mouth. Often, they are referred to as 'picker' children. 'Picker' is a normal process in children. It means putting non-food items, such as flies, in their mouth and it is said to occur in as many as 25 to 30 per cent of children. If I think of our own two sons and three grandsons, we are probably in a very high statistic.

The bill continues this risk-based approach in how it defines remediation. Remediation does not mean the total clean-up of a site to pre-contamination condition. Rather, it refers to treating, containing, removing or, most importantly, managing chemicals on a site to eliminate harm to humans or the environment. Again, land use is to be taken into account when determining remediation. This risk-based approach is the direction that site contamination management is heading internationally and in this regard the bill is in the forefront of best practice regulation.

There is one part of the definitions of 'site contamination' and 'remediation' under the bill where land use is not taken into account, and that is where site contamination impacts on water, in particular, groundwater. This is because harm to water is deemed to be a high risk, as groundwater can transport contaminants from one site to another, thereby contaminating that land as well. Thus, it does not matter if the land use of a contaminated site is industrial. If the contaminants can be carried by water they must be measured to ensure that human health and safety are not impacted. So, site contamination exists.

Management, however, does not necessarily mean total clean-up. For example, where the contaminants in groundwater are restricted to an aquifer and the impact on health is connected to the extraction and use of that water, the bill gives the EPA the power to restrict or prohibit the taking of these waters. Where the contaminants are more volatile, such as may be the case for hydrocarbons that have leaked from underground storage tanks over time, and there is a risk to human health, more comprehensive remediation may be required. In addition to placing contamination of water in the higher risk category, separating harm to water from land use reflects the importance placed upon this precious resource, in particular, upon groundwater.

In conclusion, this bill offers a number of major benefits, not the least of which is that this state will have a legislative framework to manage site contamination. It gives the EPA the powers necessary to order appropriate persons to competently assess, remediate and manage site contamination wherever this may be necessary and, of course, appropriate. It identifies the appropriate person by developing a framework for determining the person responsible for the site contamination but also enables the legal transfer of full or partial responsibility for site contamination on the sale or transfer of land from vendor to purchaser, subject to agreements.

A final benefit of the bill is that it recognises that there is a body of people independent of government who are highly skilled in site contamination, namely, site contamination auditors, and it establishes an audit accreditation system. I commend the bill to all members of the house

Mr HANNA (Mitchell) (16:25): I will say a few words in support of this legislation, and I refer to the Environment Protection (Site Contamination) Amendment Bill. It is high time that we had legislation to deal with the problem of site contamination, so I commend the government for that. I understand that there has been a lengthy preparation and consultation period leading to this legislation's coming into parliament. However, there are some suggestions I will make to the government. I think they are not so much a matter of amendment to the legislation as ways in which the whole business could be better managed. I would like to bring these ideas forward from the People's Environment Protection Alliance (PEPA). I think they have some excellent ideas when it comes to the problems of site contamination.

To summarise the submission that group of people contributed during the public consultation process, they considered that there needed to be a contaminated sites body to deal with the issues relating to site contamination. Obviously, we have the EPA at this time, but one of the problems that members of the public face when they come across a contaminated site is the necessity to go to a range of different agencies to get a full grasp of what is going on. For example, there might be health issues; there might be industrial chemical issues; there might be interaction with local government; there might need to be a legal opinion from the crown law department; and there might be issues for the local NRM group, and, of course, the EPA would be involved as well. So, it seems to me that, even if we are not going to do that by legislation, there needs to be better integration of those various agencies, maybe done administratively through the EPA itself.

Secondly, the PEPA has called for greater transparency relating to site auditing and rehabilitation. It has a concern about conflicts of interest when EPA staff or contractors have been involved in previous dealings with a particular piece of land and then the EPA is given the job of assessing it at a later time. Thirdly, the PEPA thought that the government—that is, the Crown holding land—should be treated just the same as any other freehold owner taking full responsibility for its land.

Fourthly, and this makes a lot of sense to me, the PEPA considered that a rehabilitation fund should be established by striking a levy on businesses or owners of sites which have site contamination potential. So, the concept is a little bit like the sinking fund that a strata titled block of flats might have. The owners would chip in a certain amount because one day the lift will need to be fixed, the wall around the garden will need to be fixed, or the place will have to be painted, something like that. The same principle applies here. If sites with high potential for contamination can be identified, as time goes by perhaps a small amount could be charged each year to the owners, particularly where commercial benefit is derived from operations on the land, so that when it is necessary to rehabilitate the land the cost of doing so could be spread out over many years, perhaps decades.

Fifthly, there is a suggestion that there should be certification on all land titles as to the status of site contamination. That makes a lot of sense. It is all very well to say to purchasers of land that they should beware of what they are purchasing—caveat emptor—but it would undoubtedly help to have a notation on the certificate of title when it is known that a place is contaminated. Sixthly, it is suggested that there should be compulsory signage on a site where it is known that there is contamination. This has the obvious benefit of people walking or playing on the land (whether or not they be trespassing) being aware that they face some health risk as a result of contact with the soil.

The PEPA has made some other suggestions, but I want to stress that I call on the government to closely consider the notion of having site contamination information currently held by the EPA available on a website. That is not terribly revolutionary. I believe it is done in New South Wales. In South Australia, we have a system akin to the Land Titles Office system of searching titles whereby one pays to investigate the information. But it seems to me that we are not just dealing with commercial considerations here, we are also dealing with health considerations, possibly on behalf of substantial communities, and in those cases I think that the information about site contamination should be readily accessible by the public at no cost whatsoever.

The obvious way to do it these days would be to have a website so that, if people are concerned about where the children are playing next door or if they are concerned about a new land development where they are about to buy a house or where a sports field is being marked out, they could check whether there is definitely site contamination or even a considerable risk of site contamination because certain prescribed activities have taken place on the land in the past.

I urge the government most strongly to take that into account. I realise that this legislation has already been dealt with by the Legislative Council, but a number of matters remain which could be taken on board by the government and the EPA and improved through administrative means, not necessarily through amending the legislation.

Ms FOX (Bright) (16:33): I stand to express my support for this bill. My colleagues on this side of the house have explained why this legislation is necessary; they have discussed some of its strengths and they have raised a number of the benefits to the community of having this legislation in place. Mention has been made that the bill has been a long time in the making, but this is a reflection of the extensive level of consultation carried out in developing the bill—consultation with key stakeholders, in particular.

The very first draft of the bill is based on drafting instructions developed from the report of an Advisory Committee on Contaminated Sites (ACCS) established by the EPA. Membership included the Australian Bankers Association, the Australian Finance Conference, the then South Australian Employers Chamber, the City of Adelaide, the Local Government Association, the Conservation Council of South Australia, the Real Estate Institute, the Urban Land Development Institute of Australia, the South Australian Health Commission, the Crown Solicitor's Office and the Environment Protection Authority. Following this consultation, the draft bill was released for public consultation from October 2005 to 27 February 2006.

As part of the consultation process, the EPA held nine public meetings in Adelaide and in major regional centres. In addition, some 40 briefings were provided to local councils, industries, industry and professional bodies, community groups and government agencies across the state. More than 40 detailed submissions were received. In the main, the submissions supported the need for the legislation with the majority of comments provided relating to specific clauses of the bill. I am informed that there were substantial changes to the draft bill based on these comments to produce the bill that we have before us today.

I commend the EPA for developing a bill that not only places it at the forefront of site contamination legislation but also relies upon the minimum amount of legislation necessary to do the job. It is designed to be effective and efficient in line with smart regulation. I also acknowledge the role of Dr Paul Vogel, the Chief Executive of the EPA and chair of the EPA board in this process. Members of the house may not be aware that Dr Vogel will be leaving the EPA in early November for a position in Western Australia. I am sure that many members would be aware of the significant contribution Dr Vogel has made to the operation of the EPA during his time as chief executive. On behalf of this government, I express our thanks for his work.

I would now like to concentrate on a major economic and social benefit resulting from the assessment and remediation of land which is the protection of human health and safety. The remediation of contaminated sites is important in the prevention of or reduction in health impacts and the costs associated with health impacts as many of the chemicals that cause site contamination are linked to various health impacts including cancers and genotoxicity. The United States EPA (USEPA) has developed a cost calculation model and it has estimated the costs of health impacts for a range of diseases linked to chemicals in the Cost of Illness Handbook. This publication also notes that improvements in human health constitute a major portion of the benefits resulting from environmental regulation. The USEPA concludes that a reduction in the risk of an adverse health effect is a public benefit because all the exposed individuals will experience a decrease in the likelihood of contracting a disease. The proposed bill will provide such a public health benefit that has direct economic benefits to the community by avoiding medical costs.

Whilst some may argue that in the final analysis the costs of assessment and remediation of site contamination are borne by the consumer, the proposed amendments will establish a regulatory framework that enables liability for assessment and remediation to be assigned in the first instance to the person responsible for the site contamination. This does not exist at present. Most importantly, in conjunction with the planning process, the amendments will ensure that land is suitable for its intended use. For sensitive land uses on land that has a history of a past contaminating activity, this will require the use of an accredited auditor. With this in mind, a developer will need to make an economically rational decision about whether the costs of assessment and remediation are offset by the revenue raised through development. In this way, much of the remediation that will occur in the state will result from market-based decisions. In this context, it is important to remember that internationally—and in Australia—some 80 per cent of remediation is carried out through land redevelopment rather than through the serving of an order.

Mention has been made by my colleagues of remediation of land in South Australia, such as the Port Adelaide waterfront redevelopment and at Mile End. There are other examples in this state, such as the former Islington railyards, which were mediated at a cost of $6 million. This entailed the removal of asbestos and other chemicals which has allowed the area to be redeveloped for open space, a playground and car-parking. The site was gifted to the Port Adelaide Enfield council. Similarly, the Meyer Oval at Largs North—4.6 hectares of contaminated land—was unsuitable for any redevelopment. The land was remediated at a cost of approximately $3 million and is now suitable for residential development, possibly for affordable housing.

On a larger scale, the Melbourne Docklands development is an integrated mixed use development of residential, commercial, office, retail, a hotel and public space development developed by the Docklands authority. Individual developers are fully responsible for remediating their sites. The Melbourne gasworks site, for example, was remediated at a cost of $50 million. With other remediation running into some hundreds of millions of dollars, this remediation will bring about some $7 billion in development value, not including the opportunity benefits such as increased tourism.

Without this legislation, land where site contamination exists will continue to be sold with the health, safety and economic costs passed on solely to the purchaser or the government. Without this legislation, there would be no level playing field for developers and, without this legislation, we would continue the current uncertainty experienced by the development sector. With that in mind, I commend the bill to members.

The Hon. I.F. EVANS (Davenport) (16:40): I want to make some comments in relation to this bill. I also have a couple of questions for the minister in relation to the bill and its impact when we get to the committee stage, which I think will probably be tomorrow. I have some constituents who have had a long-standing interest in contaminated sites. It will be interesting to get onto the record exactly what the intent of the clauses are in relation to the bill. This bill has been in the making for about 10 years—

The Hon. J.D. Hill interjecting:

The Hon. I.F. EVANS: Longer than 10 years. The member for Bright talks about Paul Vogel's contribution but, of course, Paul has only been there for the last little bit of the development. Other officers have put in significant decades of work to develop this bill. The issue that I will be exploring on behalf of my constituents—Friends of Contaminated Sites—is the retrospective nature—

The Hon. J.D. Hill interjecting:

The Hon. I.F. EVANS: Friends of Contaminated Sites, yes, John; haven't they written to you yet? There are a number of principles: ultimately, who is responsible for the cost of the remediation, particularly the retrospective nature of that cost, and exactly what is being covered under the Environment Protection Act? While this bill talks about site contamination, it does so by amending the Environment Protection Act. We need to go back to the definitions in the main act to fully understand exactly what is covered and what is meant by the bill that is before us. I will have some questions in relation to exactly what is meant by some of the clauses in the bill.

The other issue I raise is the ability of the EPA to charge its administration costs against landholders for simply undertaking its normal role of enforcement. There are some clauses about cost recovery, which my constituents have suggested I might like to ask some questions on. Also, the impact on government bodies—SA Water in particular—as well as on entities that have been licensed to pollute, and the future impact on those entities if the licence to pollute ceases.

The other issue of interest is the impact of compulsory acquisition. That is, if I do not want the government to take my land and the government takes my land and then decides that I need to clean it up, given that I never wanted them to take my land, do I not only lose my asset but get the privilege of paying to clean it up as well? I do not think that the compulsory acquisition angle is addressed anywhere that I have seen on my brief reading of the latest version of the bill. Being away in India, I have not had the opportunity to read the upper house Hansard, but I notice that after decades of development of this bill—by the minister's own admission—a new definition of site contamination is tabled. The very central clause of the bill is subject to an amendment. I would have thought that the definition of 'site contamination' would have actually been resolved some time ago rather than be subject to an amendment not by the opposition but by the government. So, we have an amendment that talks about the definition of site contamination.

After 10 or more years of development, the definition is tabled today and, knowing that the government has the numbers in this house, that definition will no doubt get through. It intrigues me how we can go right through this process and have a new definition dropped on us to discuss now. I will be asking questions to confirm my understanding that this bill relates not only to the land as we know it but also the ocean. I just want to make sure how that is going to work in relation to the contamination issues.

I have always been brought up under a system and understanding that when you buy land, or anything, in fact, it is buyer beware. What we are really saying with this piece of legislation is that, for some reason, site contamination is going to be different. If you buy a block of land and there is an old mine shaft on it but you do not know it is there, the previous owner does not become liable for that, that is just bad luck, you should have inspected the site prior to buying it. There is nothing in the law that stops any purchaser of land saying to the owner, 'I am happy to buy the land subject to an audit of contamination.' I accept the fact that an audit does not guarantee that there is no contamination because finding site contamination can be very difficult, but my constituent does raise some concerns about the retrospective nature of exactly what we are talking about.

I do not know whether members have taken the opportunity to read the definitions in the Environment Protection Act of what we are talking about, but we are talking about any waste, any substance at all, that ends up in water or on land. That is the base point, and there are questions asked about whether it will cause harm, and whether, essentially in the opinion of the officer dealing with the issue, it causes risk. If we go back over the last 50 to 100 years in South Australia's history, this bill says that, wherever contamination occurs, whoever placed it there, if they are still able, will pay to clean it up if there is a risk. That is essentially the principle in the bill. So, we are talking about waste on farmers' property, we are talking about old builders' yards, old building sites and lots of commercial industrial sites that would have waste of some description.

The member for Torrens talked about sensitive areas for young children, childcare centres and that sort of thing, but the reality is that this talks about water, which can be drunk by people of any age, and gas, which can be breathed in by people of any age. So, I have some issues and questions to raise on behalf of my constituents in relation to how exactly that is going to work. There are people, farmers in particular, who have used sections of their property for years as waste dumps, whether that be under the ground or on top of the ground. It does not have to be under the ground. The Environment Protection Act makes it very clear that it can just be sitting on top of the ground, as long as it is a risk—

Mrs Redmond: Tyres.

The Hon. I.F. EVANS: No, it has got to be a risk, so whatever the risk is. The landowner then becomes responsible for it. There are some tricky little clauses in here that will need to be examined, I think, in committee. I will leave those questions for the committee stage so that I can get on the record the exact intent. There is a reason why this bill has taken more than a decade to get here, and that is because there are large amounts of land in South Australia that potentially are caught by any piece of legislation to deal with contaminated land.

An honourable member: Probably the new hospital.

The Hon. I.F. EVANS: The new hospital site is certainly caught. But there are ways to treat it and the EPA will say that the higher level order basically requires the land to be dug up and taken away, and then that contaminated land—

Mrs Redmond interjecting:

The Hon. I.F. EVANS: —no, this is how it works—gets stored in a licensed position, or if they can clean it up they can then place it back. That is if it is going to be fit for human contact, which covers the point made by the member for Torrens about kindergartens, preschools, and the like. Then there are other areas; for instance, Blackwood Forest, in my own electorate, which used to be the old experimental orchard and had some levels of arsenic, from memory, still in the ground. There were proposals simply to bituminise it over and use it as a car park. As it turned out, they did not do that, but that was certainly an option. So, there are different ways, I guess, of treating it.

I am not going to hold the house long. I understand the minister needs to go at 5 o'clock and I understand that we will be coming back tomorrow for the committee debate, so I am happy to work during the night and think up some questions for the minister so that the committee session is not wasted. I look forward to the minister's answers, so that I can say to my constituents that they have nothing to fear from the retrospective nature of this legislation.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (16:50): I thank all members for their contribution to this debate, and I particularly thank the opposition for indicating its support of the legislation. I know it supported it in the other place. A number of amendments, which have been referred to, were moved and accepted, in large part I think, by the government. There are a couple of issues I would like to deal with today and then I will be seeking to adjourn the debate. I do wish to amend my own bill, however. The reason we are amending the bill is because in the other place the Hon. Mark Parnell, leader of the Greens Party, moved an amendment which the government accepted and there was an unforseen consequence of that amendment. The amendment that I am moving corrects that and makes clear what was intended and would have been plain if the Hon. Mark Parnell's amendment had not been passed. I believe that is the case, but I am having that confirmed.

The Hon. I.F. Evans interjecting:

The Hon. J.D. HILL: I will do that in committee.

The Hon. I.F. Evans interjecting:

The Hon. J.D. HILL: It is a déjà vu kind of experience I am having here, Mr Speaker. The experience of the bush lawyer from Davenport asking questions on legal matters is always interesting and I am always happy to oblige him. I will give the honourable member the advice that I have from parliamentary counsel about the particular amendment:

The amendment is made to avoid the possible interpretation that for site contamination to exist, chemical substances must have been directly introduced by human activity to the particular site contaminated. By removing the words ‘introduced to the site' and by the addition of subsection (1)(b), it will be clear that site contamination will exist regardless of whether the chemical substances have been directly introduced at the site or introduced at another site and migrated to the site in underground water or otherwise. This amendment is necessary as a result of the amendments to sections 103C and 103D in the other place which resulted in the removal of an explanatory note to the same general effect.

I invite the member to study that, and if he would like further clarification I have a number of people in the gallery who would be delighted to assist him.

I will make some general points about the legislation. When I was environment minister in the last government, this site contamination bill was one that I was pursuing quite actively. I was pleased that it was eventually put out for consultation. I am extraordinarily pleased that it is now about to be passed into law. This is very important legislation because it will provide certainty to owners of land and to people who are thinking of purchasing land. The EPA legislation, which came in, I think, in 1993, created a sense of certainty for pollution events that occurred after that event, but it did not do anything about the legacy issues. Members have mentioned a number of legacy issues, which have created uncertainty in the community and made it difficult for potential purchasers of land to know what they are letting themselves in for. This will create a regime where those uncertainties can be dealt with in a risk management way: not restoring land to a pristine state, but restoring land to a state which is fit for the purpose for which the purchaser is buying it.

There is a hierarchy of responsibilities. In all cases the EPA will seek to find the original polluter or polluters, as there may be multiple owners of the site who have been polluting. If they are no longer available, the current owner of the site has to then take on that responsibility. To say that it would be anything else would be meaningless. If it is not the current owner, who could it possibly be? And, of course, if there is no current owner, the government will in some cases be the default manager of the site. I think this has been very well worked through. It has been consulted to death, particularly in the community with people who have an interest in purchasing and selling properties, and I understand that a number of amendments have been made in the development of the bill to pick up their concerns and interests.

The member for Goyder mentioned the Marjorie Jackson-Nelson hospital and the railway site and referred to a television program last night purporting to be a current affairs program, which had a shock, horror expose on the polluted site of the railway land. Well, let me confirm that the railway land—surprise, surprise—is a polluted site. I think I indicated that at the press conference when I spoke about what we intend to do with this site in relation to the hospital. It is a highly polluted site. Whether or not the hospital is to be built there and something else is to be built—as the Leader of the Opposition would wish—such as a sporting complex, a tourism facility, parkland, or whatever you would want on the site, the pollution is such that it would still have to be cleaned up.

As part of the development of the site, of course, a large parcel of soil will be removed because the hospital proposal will have, from memory, three storeys underground for car parking. That by its very nature would involve the removal of a large slab of the polluted ground, but I am told that more pollution management than just that will be needed. We are currently going through a whole process of proper site evaluation, tests, audits, and so on, to get a handle on it. But there is money in the proposed budget for the hospital to manage all that. I am very confident that it will be managed. I think that last night on television the producers of the program suggested that the site contamination would cost close to $1 billion. I have had my officers look at the figures that they were suggesting, and they cannot work out where they got their information. It certainly was not from us, because they did not come to the minister and ask him for information or a response to what they proposed to put on their program.

Finally, I would like to take this opportunity to thank the officers of the EPA who have been involved in the development over many years. This has been a difficult thing to try to get together. In particular, I thank Gillian Smith, the EPA's senior policy officer; Will Van Deur, the EPA's principal policy officer; and Andrew Pruszinski, the EPA's principal officer for site contamination, who have been very much involved in and at leave of the parliamentary counsel. I also take this opportunity to thank Dr Paul Vogel who, as head of the EPA for the past five years, has been an outstanding public servant and officer. It was his energy and desire to get this achieved, which has finally brought this matter to a position where it is now being considered by the parliament. I also take this opportunity to wish him well in Western Australia. After five years in this state, he is returning home to take up a similar position with the EPA in Western Australia. It is a great loss for our state, I think, but it has been fantastic having him here working with us. He has been a really great leader of the EPA.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Progress reported; committee to sit again.