SAFE DRINKING WATER BILL

Committee Stage

In committee.

(Continued from 23 March 2011.)

Clause 3.

The Hon. J.D. HILL: I have some more information which might help the member. So if I may, I will start off with an answer. Just as a matter of record: yesterday I turned around and saw Dr Buckett in the counsel's area and I said I had a confirmation from the parliamentary counsel. It was actually from Dr Buckett, and for the record I just want to clarify that in case people think the counsel gave me advice; it wasn't.

The member for Stuart asked me a question yesterday about Copley water supply. I have more information for the member. During the committee yesterday, the member raised the example of Copley where water is supplied through a pipeline from the Leigh Creek drinking water supply, and I said I would seek further information.

Advice has been obtained that the Copley Progress Association takes delivery and responsibility from the edge of town, which I think was the point I was making as to who owns the pipeline water. In fact, the supplier owns the pipeline, as I understand it, and so Copley takes it from the edge of town. Hence a risk assessment undertaking by the Department of Health to determine whether the supply meets the requirements of clause 3(2)(c) of the bill, to the effect that the supply has not been altered to any material degree from the water supplied by another drinking water provider, would be restricted to a consideration of the infrastructure within the town.

I am advised that the future management of the water supply is currently subject to discussions between the Outback Communities Authority and the Copley Progress Association (I think the member mentioned this yesterday). These discussions will include classification of the water supply, that is whether it is classified as a drinking water supply or a domestic non-drinking supply. The operators of the Leigh Creek water supply and the Outback Communities Authority both indicated support, I understand, for the bill during consultation.

So I hope that gives the advice. I think it was a really good example, because it really does not matter how long the pipeline is, it depends who looks after the pipeline and the contents of that pipeline. So, the initial supplier does in this case, and so the association which then redistributes it to the community is only really subject to being responsible for the bits that they look after themselves.

The CHAIR: Member for Stuart, are you the lead speaker on this bill?

Mr VAN HOLST PELLEKAAN: No, Madam Chair, I am not.

The CHAIR: The member for Morphett is? Member for Morphett, can you instruct me as to what areas of interest you have here, because I understand we are on clause 3 out of some 53?

Dr McFETRIDGE: Yes, we are just dealing with clause 3. I am just getting clarification on the issues around who, what and where obligations for drinking water providers are, and then I believe once the member for Stuart is satisfied, we can move on to clause 9.

Mr VAN HOLST PELLEKAAN: Just to clarify, my areas of interest are all primarily about providers. I appreciate the fact that I have had more than three questions on this clause—

The CHAIR: But I am generous.

Mr VAN HOLST PELLEKAAN: —but I could have waited and got lots of other clauses that all talk about providers too and then just got my questions, so I appreciate the help. Minister, thanks for that clarification, and I agree that Copley is a good genuine example of that sort of thing.

When we finished yesterday afternoon, I was asking about the chain of supply with carriers and you mentioned the fact that, whether you are a volunteer or not, you still need to have a good driver's licence or a first aid certificate or whatever. I certainly accept that, but those are usually qualifications that are helpful for lots of other things in your life, and you might have them anyway. This is just people going out of their way to help.

I will be very quick. I was grateful to receive some advice after we adjourned yesterday which helped me with this query. I was advised that, while the requirement for a volunteer non-professional carter of safe drinking water, doing it essentially as a community service, cannot be let go, local councils would have the opportunity to provide that qualification at no cost if they chose to. They could do the inspection and the certification.

If a local council chose to do it out of its own generosity, it could do that work and get that volunteer certified so that the safe and secure carting of the water is underway for everybody's protection, and I am comfortable with that. I am comfortable that, if a local council would not undertake that quick inspection and give that certification, it probably should not happen anyway. I accept that that then is no great impost on the volunteer who is providing it. With that on the record, I am satisfied that country and outback communities are in good hands.

The Hon. J.D. HILL: For the member for Stuart's benefit, I am happy to confirm that that is the advice that has been given to me by my officials. I would also point out, to be really clear, that we are talking about volunteers who have vehicles that can carry water. That is not very different from a volunteer who has a car who might carry passengers at certain times on a voluntary basis. That car has to be fit for carrying passengers and, thus, any container that carries water has to be fit for carrying water, even if it is only used once every five years. It cannot be used for carrying other things in between. I do not think it is that different but, I agree, we should make the burden on volunteers as light as we can.

I think the suggestion made by the officer, which the member has noted, that councils could do it is a very sensible one, and I am sure councils and other organisations (charitable organisations and communities) might be prepared to fund inspections in certain circumstances. That would be quite a good community sort of thing. I am happy about that.

Clause passed.

Clauses 4 to 8 passed.

Clause 9.

Dr McFETRIDGE: Clause 9—Suspension of registration. Subclauses (4), (5) and (6) provide that the minister must give the drinking water provider a reasonable opportunity to make submissions to the minister in relation to the suspension of licences. Whilst the registration is suspended and then there is an appeal, can the water provider still provide that water, even though they are under question?

The Hon. J.D. HILL: I am advised that registration would be suspended if there were failures to comply that lead to doubts about the safety of the drinking water supply. The intent is that supply could be continued while an objection was lodged and considered, subject to consumers being notified that the water was not suitable for drinking. This is considered a precautionary but prudent course of action.

Clause passed.

Clauses 10 to 14 passed.

Clause 15.

Dr McFETRIDGE: Clause 15—Approval of auditors and inspectors. This refers to qualifications. Can the minister give the committee some idea about what is going to be required in subclauses (2)(a) and (b), which refer to the person's technical skills and experience and any guidelines relating to competency criteria? Is that TAFE courses or university courses, and who are these inspectors and auditors likely to be?

The Hon. J.D. HILL: I am advised that in most cases qualifications for inspectors and auditors under the Food Act will be transferrable to this bill. It is proposed that inspections of small supplies could be undertaken by council environmental health officers—I think there is a course that they do through university—and others certified to undertake inspections under recognised schemes, such as the scheme operated by the South Australian Tourism Industry Council.

Audits of moderate-sized supplies could be undertaken by environmental health officers who have undertaken an auditing course coordinated by the Department of Health. Audits of large supplies (for example, SA Water) could be undertaken by auditors certified under the existing RABQSA Drinking Water Quality Management System Auditor Certification Scheme, which is coordinated by the Royal Melbourne Institute of Technology. The department will publish guidelines on appropriate qualifications following a similar approach to that that was used for the Food Act.

Clause passed.

Clauses 16 to 27 passed.

Clause 28.

Dr McFETRIDGE: Minister, under Approval of laboratories, can you just give me some idea who some of these laboratories are? I think you mentioned the Melbourne institute.

The Hon. J.D. HILL: This is the laboratory that does the testing: is that what you mean?

Dr McFETRIDGE: Yes, which laboratories do the testing? In particular, who tests SA Water? I have seen some information where you have both SA Water's header and I think the water quality testing people's header on there, whoever they are. I cannot remember the exact title. It seems that they are joined at the hip. We would need some independent testing authority for SA Water.

The Hon. J.D. HILL: Let me try to explain as best I can. I have been advised that SA Water is audited by the Australian Water Quality Centre, which, as I think the member suggested, is an independent entity associated with SA Water. I think that is a way of putting it. They, and their results, in turn, are audited by a body called NATA which has 'national' and 'testing' in there somewhere and probably 'authority', but I am not sure in which order.

For household tanks or hotel tanks, I think there is a range of bodies. Groups like SA Pathology or Gribbles, all those kinds of organisations can test rainwater tanks or bore water, I guess, for smaller organisations.

Dr McFETRIDGE: You must have seen my notes here because I have NATA accreditation. That is the National Association of Testing Authorities and it tests everything from water meters through to speed cameras. Actually, they do not test South Australian police speed cameras which is another issue, but anyway, we will leave that one and ask the member for Fisher—he might want to talk about that. I did not quite hear what you said about who tests SA Water, because I think you said they were associated but independent.

The Hon. J.D. HILL: There is a body called the Australian Water Quality Centre. It is the internal auditing or testing body that SA Water has, and it is accredited by NATA, so they do it themselves with this unit they have established within SA Water and then that is certified through NATA.

Dr McFETRIDGE: I will have a bit more of a look at that and we might come back to that in the other place, because I think we need to make sure that SA Water has a really independent testing authority, because NATA really just makes sure that the instruments are correct, not so much the results, or actually, the results are reflected by the instruments.

The Hon. J.D. HILL: The advice I have is that NATA is an independent body, as the member knows, which accredits the work done by the Australian Water Quality Centre which gives the health department assurance that the systems are working well. I think the track record would demonstrate that that has been the case. We have pretty clean water here, and there have been relatively few occasions when there have been big problems. I think it has actually been working. It is independently accredited and there is confidence in SA Health that it is working well.

Clause passed.

Clauses 29 to 35 passed.

Clause 36.

Dr McFETRIDGE: I spoke about this clause briefly, and it is a concern for a number of my colleagues. This is a requirement in this bill, and I also understand that it is in the EPA Act and the Food Act. Clause 36(1)(c) states:

require any person to answer any question that may be relevant to the administration or enforcement of this Act.

Subclause (7) states:

It is not an excuse for a person to refuse or fail to furnish information under this section on the ground that to do so might tend to incriminate the person or make the person liable to a penalty.

I know that a number of people have expressed concern to me that this is, in their opinion, a draconian requirement. I understand that, in cases of public health, you need to take immediate action, you need to make sure that the information is as accurate as you can possibly get, and you may need people to answer questions. However, the concern for some of my colleagues is that these people who are being questioned—while my reading of the bill is that they are not incriminating themselves—want to be sure that this is not, in their words, a draconian piece of legislation removing the right of silence, which I am not sure we have in Australia.

The Hon. J.D. HILL: I think the member understands what it is about and I am happy to put on the record the government's explanation. As he mentioned, this is a provision which already exists in relation to the Food Act, environmental acts and so on. There is always a balancing act between civil rights of an individual versus the broader rights of the community to be protected, and how you balance those two things is really what the democracy of Australia and other European-style civilisations is about. We have a strong framework of law, parliamentary democracy, media and so on, so that it really is rare when there are significant ongoing abuses of power. Whatever the fevered bloggers on websites might think, we actually do these things pretty well.

Officers of departments of health and environment need the power to get information quickly when lives or the health of individuals are threatened. For example, if an officer saw something coming out of a water supply that was foaming and looked poisonous—knowing that it was going into the water supply of a township and knowing who was responsible for it—that person ought to say what it is. They may have put something in there inadvertently, they may have put something in there deliberately but without any malicious intent, or they may have put something in there maliciously. If somebody had put a chemical into the water supply thinking it was going to clean it, and they put twice as much in or three times as much in, and it was causing it to be poisonous, you would want that information to be known so that some remedial action could happen.

There is another provision in here which says that, while they are obliged to do that, that fact can be used in a subsequent legal case, but it cannot be used to incriminate the person who gave that fact, as I understand it. I hope I am getting nods from those who advise us. I have a further bit of information here which I will go to in a minute. I have one example which the member might care to check. The provision of information, I am advised, can be crucial. In the case of Walkerton in Canada, the failure to disclose information in that case caused an additional 300 to 400 illnesses in the community. So, there are some practical reasons why this information is required.

Again, in relation to privilege and self-incrimination, that is obviously there to protect a person against the use of illegal processes to extract from a person an admission of guilt. The privilege is ousted by clause 36(7) and also later in the bill in clause 41(3). Clause 36(7) says that it is not an excuse for a person to refuse or fail to furnish information under this section on the ground that to do so might tend to incriminate the person or make the person liable to a penalty.

So, although clause 36 authorises a situation in which a person will potentially incriminate himself or herself, clause 36(8), as I think I have already mentioned, affords a measure of protection so that person can qualify the use to which the information can be put, namely (and I paraphrase), (a) where the person is required to produce a document—the fact of production of the documents, as distinct from the contents of a document—or (b) in any other case—any answer given in compliance with the requirement of this section—and it is not admissible in evidence against the person for an offence or for the imposition of a penalty other than in proceedings for providing false and misleading information. I think that is a really complicated and important way to balance the rights of the community to be protected against the rights of the individual to the right to silence, I suppose.

The contents of the documents or information are not included in that qualifying provision so they are not privileged or protected in any way under subclause (8). This formulation is not new. It exists in several instances in the statute book—and there is one here the member for Morphett will really like—namely, in the Environment Protection Act in section 91, the Veterinary Practice Act 2003 in section 71, and the Rail Safety Act 2007 in sections 116 and 122(5). In relation to documents, it reflects the fact that the privilege would normally operate to allow a person to resist production of a document but would not operate to prevent proof of facts disclosed in the document. It also represents a need to strike a balance, as I have said, between the protection of the health and safety of the public on the one hand and the rights of the individual on the other.

So I understand that these kinds of issues excite people but I think it is really about getting the right balance, and I think we have attempted, as best we can, to do that.

Dr McFETRIDGE: Thank you, minister, and I understand and appreciate that. One day, if I get the chance to be minister, I would like that power, quite honestly. I would like to think that my colleagues will read this and agree, but I cannot guarantee that.

Clause passed.

Clauses 37 to 44 passed.

Clause 45.

Dr McFETRIDGE: This relates to disclosure of certain confidential information. A person who has, in connection with the administration or execution of this act, obtained information in relation to manufacturing secrets, commercial secrets or working processes must not disclose that information unless a disclosure is made, and there is a series of things there. I see the penalty is $50,000 but, if I was investigating an illness that was suspected to come from the Coke or Red Bull factory, I think $50,000 is quite a small penalty. I make that point. Are the manufacturing processes, say, for Coca-Cola, Red Bull or other secrets, given extra protection; or is this just a one-size-fits-all for commercial secrets?

The Hon. J.D. HILL: It is a maximum penalty, and I guess any court would determine what percentage of that penalty would apply in a particular set of circumstances. So, if a lot of people were being threatened and somebody maintained a secret, it would not matter how big the entity was that they were trying to protect: the penalty would tend to be larger depending on the outcome for people, not on the size of the corporation or body that is attempted to be protected. That is the advice I have. It is really a maximum penalty and in the circumstances it would be determined by a judge. It is not to do with the scope of the operation: it is about the effect of protecting that organisation in a set of circumstances.

Dr McFETRIDGE: I think that the recipes for Coke and Red Bull are probably worth more than $50,000. There is no gaol time; you pay the money and you start producing the clones.

Clause passed.

Clauses 46 to 49 passed.

Clause 50.

Dr McFETRIDGE: Clause 50—Agreement and consultation with local government sector, subclause (1) provides, 'The minister must take reasonable steps to consult with the LGA from time to time.' Minister, is there a time period or is it just if there are issues raised by either yourself or the LGA?

The Hon. J.D. HILL: The advice I have is that this is to allow us to establish an MOU with the LGA, as we have in relation to the food act. As it happens, I do not think I have a regular, that is, pre-determined, cycle of meetings with the LGA but I do, as a matter of course, meet with them on occasions. I think that is really all I can say. Clause 50(2) provides:

If the minister and the LGA enter into an agreement with respect to the exercise of functions under this act by councils, then the minister must prepare a report on the matter and cause copies of the report to be laid before both houses of parliament.

So, I guess the 'from time to time' indicates that it should be when it is required, rather than an artificial sort of sequencing. I think that is right.

Clause passed.

Clauses 51 to 52 passed.

Clause 53.

Dr McFETRIDGE: When will the draft regulations be available for us to have a look at? The draft risk management plans that are covered by those regulations—and I am drawing a bit of a long bow here, I should have mentioned this earlier—for small rainwater supplies state, on page 11 of 14:

Where there is mains water back-up to rainwater outlets, ensure cross-connections are controlled and comply with plumbing standards (AS/NZS 3500).

And with bore water:

Where there is mains water back-up to bore water outlets, ensure cross-connections are controlled and comply with plumbing standards...

I might be wrong, and that is why I am asking the question: are household rainwater tanks able to be plumbed in in a similar sort of fashion to the bores and rainwater as in these risk management plans? That is in the metropolitan area and other places where there is reticulated SA Water supplies.

The Hon. J.D. HILL: Yes, it can be done, as I understand it, and there are mandatory rainwater tank provisions. As you would know, all new houses in South Australia, other than those that get an exemption because they are part of a bigger scheme, have to have rainwater tanks plumbed into the house, and there are guidelines which are provided, so, yes, that can occur.

There was another part to the question: when were the regulations going to be available? The normal process is that the draft regulations will be available after the legislation is through and we know what form it is in, because it is subject to debate, as you say, and the democracy which is known as the Legislative Council, and then we will know what regulations we need to make.

Dr McFETRIDGE: Those are all the questions I have. I thank the minister and Dr Cunliffe for his help on this matter. It has hopefully been clearly explained to this house and hopefully understood by those who read it in the other place.

The Hon. J.D. HILL: I thank the member for his support and his assistance in the passage of this legislation. I think it is a good bit of legislation. A number of other states have done similar things and I think it is sensible to put together in one place legislation relating to safe drinking water.

This is an issue which is of great interest to South Australians. I remember when I first came to this state in 1974 and ran a bath in a house I was living in at Hackney. I was kind of astonished by the dark brown quality of the water that was coming into the system. We have really improved a lot in the last 36 or so years.

Of course, we are seeing more suppliers of drinking water come into the market. As price signals change, more and more suppliers will want to come in and compete with SA Water. It is important that we have a structure in place so we can make sure all of those are bound by the same sorts of duties and responsibilities that SA Water and the other bigger suppliers have. I thank Dr Cunliffe and others from SA Health for their support and commend the bill to the house.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for Mental Health and Substance Abuse, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (16:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.