Bills

Local Government (Mobile Food Vendors) Amendment Bill

Committee Stage

In committee.

(Continued from 1 November 2016.)

Clause 4 passed.

Clause 5.

Mr GRIFFITHS: I will try to make sure that we use our 24½ minutes expeditiously and get through this; I have a general question, though. Given that clause 5 refers to the fact that the council must grant a permit, subject to the regulations, I have a general question which has been posed to me: would a permit be issued for the area surrounding Adelaide Oval? It is a roadway, so it meets the Road Traffic Act, but I do not know if there are contractual obligations that might exist with the Oval management authority which might prevent that. Therefore, is that a decision that local government thereby determines, in being required to grant the permit under the regulations? Does the Adelaide City Council have to have, as part of its own regulations, the ability to refuse any request for a permit or not to grant one for that area and not have that identified on their plan?

Mr PICTON: As we have outlined previously, all the location rules for where food trucks can go are up to the council, so the council would look at it its area. I expect the Adelaide City Council would devise areas very much like it has at the moment, and I do not believe that that area (although we can check) is one of the areas they have available for food trucks to operate in.

Mr KNOLL: My first question is about how costs were arrived at, and I only caught it briefly. From the vague bit I heard, parliamentary secretary, you said that it was basically somewhere between this and that. Was any attempt made to actually understand what the actual cost of providing these permits was to council? Would that have included some sort of contribution towards infrastructure provision?

Mr PICTON: What we did—and this is in the draft regulations that we have circulated, but they are not in the bill yet—in devising those draft regulations is look at the work that Adelaide City Council did in determining its original permit fees and its current permit fees. They looked at what the council rates would be to apply to a very small premises in the Adelaide City Council area, which I believe from memory was a range between $900 and $4,000 that they estimated, and they came up with an original figure that was lower than what we are setting as the maximum, and then in their revised figure it is slightly higher than what we have set.

Most of the other councils that have these permits, although bearing in mind our previous discussion about how a lot of councils do not allow these things, have their permits set at a much lower level than what we are contemplating as the maximum here. We have seen this as a balance between the work that the Adelaide City Council have done, bearing in mind that they looked at their council fees and all the work that might be associated with that.

Mr KNOLL: My second question is around the discussion paper that was put out originally on this topic in which you talked about exploring the option of having a single statewide audit process for business. The process currently is that you have to go to every council to get a food identification number, I think it is called. Essentially, it is a council by council process and you were looking to explore whether or not there was the ability to have a statewide food safety permit.

Mr Griffiths: 'Passport' is the word used.

Mr KNOLL: Yes, passport. Why is that not part of this legislation?

Mr PICTON: I will just decouple that slightly. In our original discussion paper we put out about a year ago, we proposed two options for the permit of operation of the food truck on streets, one either being a statewide permit for that or the second being the action we are now taking under the Local Government Act. There is a variety of reasons that we have gone for the Local Government Act, particularly so that the council can play a role in a number of the ways we have outlined already in the debate, particularly in regard to location rules. I think those things are best worked out on a local level.

In terms of the Food Act, we have never proposed to amend anything about the Food Act and how that would apply to food trucks. What we have said, though, is that we think that there is a role to have something like a health passport that could best record previous inspections that would apply to a mobile food business whether or not they are actually registered under this bill. There might be things that just go to festivals, events, Royal Shows and things like that where it would be useful for those local councils to see the history of previous inspections in other local councils.

That is something the councils are interested in, and SA Health is currently working with a working group of local councils to develop that. We are hoping that is going to be developed by early next year.

Mr KNOLL: If that does come to fruition, and if that would genuinely be a reduction in red tape, is there any opportunity for that to be extrapolated out to all food businesses who operate across multiple council sites?

Mr PICTON: Potentially, that would be something to look at. Obviously most food businesses operate from a fixed site. There are businesses, like food trucks, but there might be other people who operate at multiple sites. I am very happy to raise that idea with SA Health.

Mr GRIFFITHS: I will expand on a couple of things. The parliamentary secretary has been rather generous to talk about these things when they relate to a different area of the regulation, and I appreciate that. If we can talk about the fees, no doubt the parliamentary secretary is having chats with people as part of his responsibility to get this bill through the other place, as I have had chats with some people. There is a variety of opinions about the fee structure. One person I have spoken to, and the parliamentary secretary probably has as well, believes that the fee should be much more.

Mr Picton interjecting:

Mr GRIFFITHS: Yes, true. Others believe that there should be a removal of the upward amount and that the council should have the ability to determine the structure of that. I presume that the parliamentary secretary has done that to ensure that it is not set at such a rate that it makes it financially impossible for the business to achieve, so I can understand that. As part of his ongoing discussions, has he given consideration to a review of what the regulations state as to what the fee structure will be?

Mr PICTON: We have put out our draft regulations and we are happy to continue to talk to people about them. I have already outlined the process we looked into for developing them. Some people say, 'You should add up the rent plus the council rates, plus water, plus electricity, plus every single business cost that there might be and make that the permit cost.' I think that would be slightly unreasonable on the basis that these vendors have to pay for the truck.

Obviously, if you are renting something, you do not have to pay for a truck in that case, but you are also not getting all the benefits of a rented premises, such as toilets and places to sit when it is raining, which makes it slightly less attractive. There is also the fact that there is no electricity and gas on site, and there are a lot of costs involved in doing that. I think you have to look at the whole continuum of costs that a food truck might have to operate. That is how we have arrived at what we have here, but I am always happy to talk to people about ideas that they might have.

Mr GRIFFITHS: It is interesting because, while I do respect the parliamentary secretary's comments just then, for those who rent a structure there are fit-out costs, presumably, as part of their commencing operations in an establishment. No matter which method is pursued by the entrepreneurs out there—God bless them and the fact they are actually pursuing business opportunities—there is a cost structure in place, too. I think this is likely to be an area that is going to require some further discussion. No doubt it will be a focus for the person who represents the parliamentary secretary in the other place when it comes to a debate about this too.

If I can come back to the health inspections, which the member for Schubert also referred to, there is nothing in the regulations that determines a fee structure. So, it is just part of the policy and decision-making of local government to determine, as it does for many different operations, what the fee would be for that. I understand and support the principle of the passport system, but does it allow councils that have not done the initial inspection and have a mobile food vendor operating in their area to undertake inspections at random? If so, the regulations appear to me to be silent for a fee structure in place. If a council wants to determine a deed as part of its own regulations and wants to be assured of the cleanliness of the facility, for a health inspection to be undertaken, is it deliberately missed out so a fee cannot be charged, or is that an accident?

Mr PICTON: Again, to be completely clear, we are not changing any requirement under the Food Act. Any person who gets a licence to operate a food truck has to comply with the Food Act, and that includes any fees that a council might wish to impose under the Food Act as they currently do already. They will do that no matter whether the food truck is on the road under this regulation, whether it is in a park under a council permit, or whether it is on private premises. The council will still need to inspect, as is currently does, so there is no change in terms of fees that councils can do for their Food Act regulation at the moment.

Clause passed.

Clause 6.

Mr GRIFFITHS: For the benefit of the parliamentary secretary, the questions I have in relation to the regulations that have not already been raised will be within this clause. Under 24A, a council is prohibited from imposing a condition restricting the operating hours of the mobile food vending business. Why is that in place?

Mr PICTON: This is one of the things that was raised with us in the original discussion and then the original consultation around the bill. There were limits put in place around saying that food trucks could not operate during particular hours and this was limiting the way that those businesses would be able to operate. We took the view that that is something for people to work out on the basis of what the best time for them to do that is, as well as the fact that the council would be able to work out the location guidelines to address whatever other concerns there might be.

Mr GRIFFITHS: Is the parliamentary secretary saying he is concerned that some councils that were granting permits were putting in place time restrictions that made the permits unworkable? Is that why the condition is being attached in regulations?

Mr PICTON: Yes.

Mr GRIFFITHS: I have a question about health inspections. It has been raised with me and it is a valid question. While I understand that some mobile food vendors actually prepare their food at a fixed property—and that has been referred to—the question has been put to me about those that involve a process that has waste fat. Because of the potential health issues associated with that and the disposal of the fat, has the parliamentary secretary given consideration to how that disposal in particular is to be dealt with? I do not think any of us want to see a situation where a mobile food vendor who does not have a fixed venue to prepare food—how will it ensure the disposal, and what is an alternative method for the disposal of that waste?

Mr PICTON: In terms of the disposal of waste, we have made it clear in our draft regulations that, if there is any doubt, the Food Act would apply to these businesses as part of getting a permit, as well as any other legal or legislative requirements relating to health, safety and the environment. People have to dispose of the waste in an appropriate way within the law, as you have to at the moment.

Mr GRIFFITHS: I appreciate the words, but I am not sure how that is intended to work in a practical application. The easy equation is from a fixed premises where they have a regular waste disposal they pay for as part of their local government rates, or they have a different form of waste disposal that is required to remove waste from the site. Given that this relates to properties that, by their very nature, transit between the locations they operate from, ensuring that disposal is done appropriately is very important. I do not think there is a need to set up waste disposal sites all over the city or the state, but I would hate us to come to a situation where illegal disposal takes place.

I am not sure if regulations can even encompass this and how it is done. It might be that it is part of local government; if it is a review of a permit that has been granted, it can ask those sorts of questions about how waste is to be disposed of. I know the regulations set the opportunity for council to determine the range of conditions it might have, but could there potentially be a template prepared for local government to use, and is that part of the negotiations and discussions that the parliamentary secretary and the government will have with the Local Government Association on behalf of all councils?

Mr PICTON: We have had discussions with the Local Government Association and I am not aware that this issue has been raised specifically. I think they have seen what we have put in the draft regulations around needing to comply with environmental and other conditions as part of the condition of having a licence. The member talked about the illegal disposal of waste; if you were to illegally dispose of waste that would be a breach of the conditions of having a licence—and a serious one, I would think. So, that is a concern.

If you look at Adelaide City Council, for instance, they have detailed guidelines, a lot of which they will be able to maintain, and at the moment they include maintenance, cleaning and waste. It might be that other councils see what Adelaide City Council have done and look to adopt that. That is something that we can certainly talk to the LGA about.

Sitting extended beyond 18:00 on motion of Hon. Z.L. Bettison.

Members interjecting:

The CHAIR: Order!

Mr GRIFFITHS: I now go to the third page of the regulations, up the top under (d). It says that the council must ensure the permit is subject to insurance of a kind specified by the council. This one really intrigued me. I would have thought there would have been a public liability put in place, at the absolute minimum, which would have stipulated a dollar figure of insurance that was required. Can the parliamentary secretary just expand on that?

Mr PICTON: The Adelaide City Council, for instance, has, in their guidelines, that you need to have public liability insurance to the value of $20 million. This is another area where we have made it important about insurance but have given the councils the flexibility in terms of the type of insurance they might want to add. They might want to go further than that and require other types of insurance. That is something we are happy to work with the LGA on, but I would have thought that what the Adelaide City Council have got would be appropriate for most other councils to do as well.

Mr GRIFFITHS: As would I, but based on the explanation I can understand that you are giving some flexibility to be in place, so I accept that. If I can ask the question now, which I also flagged during my second reading contribution, on car parking and time limits that were in place. I am sure that the parliamentary secretary is dying to give me a response that alleviates the fears that I expressed at that time.

Mr PICTON: Yes, I am very happy to. A food truck will have to comply with whatever the car parking rules and regulations are for wherever the space is. There is no exemption from signs and other car parking regulations. If it is a timed space, they can only be there for that time. If it is a no standing space, they cannot be there.

Mr GRIFFITHS: The response actually gives me some questions. If I can work on the basis that the mobile food vendors will be approximately 11.30am until about 2pm, presumably, so that they can maximise the peak need opportunity, given that, yes, there are many public parking spaces that do not have time restrictions on them within suburban areas—that is a very different scenario—if it is, for example, a one-hour restricted space, how do you deal with that? There is a requirement to get there, to have the space, to set up, to have the food hot and to be in a position to serve it to people. Presumably, your whole time limit is just about taken up in that.

Mr PICTON: This is where common sense would prevail, in terms of the council looking at their location guidelines to determine some locations that correlate with what the parking restrictions for that time would be. I absolutely get the member's point, that an hour would be too short, but the council may not look to make their location rules apply for food trucks in an area where there is only one-hour parking. They may look to put them in another area.

Mr GRIFFITHS: I will finish on this one now. If I consider the extrapolation of that, does that mean that, where it might have been required to issue a fine or an expiation notice for staying beyond the required time, as occurs, there is a need for some form of legislative change in another act of parliament to ensure that a council has the flexibility in this scenario, on a discretionary basis or as part of their regulation and permit requirements, not to issue a parking fine?

Mr PICTON: My advice is that councils would have the ability to look at their own council rules and to apply them and, if they wanted to, they could change their own permits for particular locations.

Mr GRIFFITHS: I have some other areas now. Right down at the very bottom of that page it states that, a mobile food truck does not engage in the sale of ice-creams, that they are removed from it. Can the parliamentary secretary give me a brief reason as to why?

Mr PICTON: Yes, absolutely. This is not the most elegant of sections we have put in our draft regulations, but I was conscious that by setting clear location rules—for instance, if a council determined a particular map of areas where food trucks could operate—we are not restricting the wonderful experience of being a kid and having Mr Whippy come down your street and stopping. I did not want to be the member of parliament who banned Mr Whippy. That is why we have put that section in there.

The DEPUTY SPEAKER: Is there such a thing?

Mr GRIFFITHS: Absolutely—I have seen them. On the version of the draft regulations I have, and I am over the page now—

The DEPUTY SPEAKER: Member for Goyder, but you are still on regulations, aren't you?

Mr GRIFFITHS: Yes, I am.

The DEPUTY SPEAKER: We do not have a copy of that in front of us. We only have two pages.

Mr GRIFFITHS: I am talking about location rules now. I note that there is an explanation at the very front that talks about three months for it to come into place, and therefore one would assume that it provides local government across all 68 councils with the opportunity to determine within the next three months. Presumably, that is going to have to be a matter, though, that they will have to consult on with the community, too, in some cases, because there might be some fixed business operators who have a very strong opinion about what the distance from them or others should be before it applies. Is there any flexibility on that three months and can it be longer?

Mr PICTON: Yes, we have spoken to the LGA and said to them that we think it is appropriate that councils have some time to consult on the particular location rules that they would want to adopt. That is why we have tried to be clear with members that we would not see this being enacted and the regulations coming in until at least three months afterwards. We are always happy to talk to councils. If they need slightly more time, we would be happy to discuss that, although I imagine that a consultation process would be able to happen within three months.

Mr GRIFFITHS: I presume there are some that already have their requests in place and have permit systems that are already running and others that do not and never have been approached but probably should be. I am really concerned that some might just consider, 'We have never been asked this.' It is a very low priority of the staff of councils to actually progress this matter but for those who actually deal with the issue it is more of an urgent need. So I would suggest to the parliamentary secretary that there might need to be some discretion regarding that. And for those who have not had the need in the past to do it, it might be a slightly longer period not because they do not want to do it, or they do not respect the fact that the legislation would demand it, but because there has never been a need for them to have it so they do not see it as a priority.

Mr PICTON: I think for those councils that have never seen the need, and it might be unlikely that people might want to apply for them, our suggestion might be to them that they adopt a broad metre rule, so they would not have to identify a particular location but they could satisfy existing bricks and mortar businesses in their area that, if there were to be applications, they would be sufficiently away from those existing businesses. But I am happy, as always, to talk to any council or the LGA further about that matter.

Mr GRIFFITHS: If I could ask a question on (4)(b), where you talk about requirements relating to the minimum distance. I can only imagine that this will vary considerably from council to council. I am not saying it would have been appropriate to put in a suggestion on what it is, but it will be a really difficult one because potentially there will be councils that might not be quite as supportive of the parliamentary secretary and would like to see them be on this and put a longer distance in as a way of stopping opportunity. I raise this point on the basis of (5), where it talks about 'A council's location rules must comply with any requirements specified by the Minister by notice in the Gazette'. To me, that still very clearly gives a minister, and I am not sure which minister it actually is, the ability to say no—

Mr PICTON: The planning minister.

Mr GRIFFITHS: Is it? Okay. The parliamentary secretary puts on the record that the planning minister has responsibility for it. Because it is an unknown area that a minister can insert into a Gazette, via regulation, and change how local decisions are made—and I know they are disallowable, I can appreciate that—that is of concern to me. Is there going to be not a policing unit but some authority that will review the conditions attached by councils on their permit regulations to determine appropriateness and therefore make a recommendation to the planning minister if they believe that a change needs to occur?

Mr PICTON: I can assure people that there is not going to be a new policing unit established to look into this. It will be something that the Office of Local Government will look at, as they look into this whole act from time to time. Really, that has been put in our draft regulations—it is not in the bill—as a sort of just-in-case provision if somebody really goes out of their way, to a particular council, to cause trouble, to try to limit it, far more than is necessary. We are hopeful that councils will not play games with that and we will not need to use that provision.

Mr GRIFFITHS: Just to clarify, in relation to (5) and the minister being able to specify any requirements, is that in the form of a regulation that is disallowable? I know I posed this question to the parliamentary secretary during the earlier discussion we had about this. I hope I am not misrepresenting you, but you were not sure at that stage, but you got back to me and said that you believed that it was going to be a disallowable matter.

Mr PICTON: I do not believe I said that. I did check that after you raised it, and I am advised that something that goes in the Gazette in such a way is not usually disallowable, but the whole regulation is disallowable, and that is how parliament has the ability to get rid of that.

Mr GRIFFITHS: I have leapt over the page, and 10 is the area. I have notes here about sizes. The member for Unley talked about vehicle registrations, trade plates, and all that sort of stuff, but I do not want to go into that area. What if it occupies more than one parking space? Some entrepreneurs might want to set up an enormous thing. Does that become an issue, or is it fixed within any type of vehicle that would occupy a single parking space?

Mr PICTON: What we have in our draft regulations is that you cannot unduly obstruct the roadway. That is something that would obviously need to be looked at in the context of the area and the particular vehicle that is being used. One example put to me was that if you were to have a double-decker bus as a food truck in a narrow laneway with overhead poles and wires and things like that, then that might obstruct. If you were to have something that is unduly large for the roadway, then that might unduly obstruct as well. We have to use common sense in terms of the interpretation and management of that section.

The CHAIR: This is not really normal practice to examine regulations in such depth. How much more do you have?

Mr GRIFFITHS: I have about two more questions.

The CHAIR: Two more questions, and that is the very end, or just this clause?

Mr GRIFFITHS: Just this clause.

The CHAIR: We are going to have to nip it right there, then, because it is not normal to ask questions on regulations because they are not part of my two-page bill. We might give you two more questions and you can pick them from either clause. That is generous.

Mr GRIFFITHS: I have a question about the cancellation of permits. When I read through it, some sections confused me. If during the prohibited period a person who has lost a permit applies to another council for a permit for the purposes of a mobile food vending business, the person must inform that council of the cancellation. Therefore, it becomes self-regulating, does it not? Even with the passport system that is in place for the health inspections, when council has cancelled a permit, how do you ensure that other councils are aware of it? Is the intention to rely on the operator to advise other councils that they do not have permission to operate? What is the likelihood of that?

Mr PICTON: Because they have separate permits in those separate councils, we have said that, if you do lose your permit, you are obliged to inform the other councils where you might have a permit. The onus is on those people to do it, and it is an offence if you do not do that and comply with that section.

Mr GRIFFITHS: This is an important area for me. I can understand, when a council removes a permit opportunity for any reason other than health reasons where it is a health issue and the concern about it therefore translates across to other councils in which the mobile food vendor operates, it is important for me to ensure that those other council bodies know that it has been cancelled. There is a need for them to ensure that, before it operates in that area, it has corrected the problem. The issue then becomes that, if you have lost it, you cannot reapply for six months. I believe the regulations state that. It is a confusing area for me, parliamentary secretary, and I think work needs to be done on it.

Mr PICTON: Again, I clarify that this does not change any of the requirements under the Food Act. If I were to run a food truck—and some people have suggested that maybe I should do that—and if I were to breach the Food Act, then the penalties under the Food Act would apply. That would apply no matter where I was operating or in what context I was operating.

The penalties there are much more severe in terms of this regulation which is really about how the on-street trading works. If I can give the member some confidence, it is that those Food Act provisions about significant breaches of the Food Act apply. No matter where my food truck was to go, I would not be able to trade if I had breached that significantly.

Mr GRIFFITHS: This relates to the last question also. For me it is the six-month issue, too. I am not sure if the parliamentary secretary is responsible and I apologise if I was distracted. It actually makes it clear in my mind how it is to work if the reason for which the council denied a permit to be available is fixed within a six-month time period that cannot be re-sought again. No, it says 'not exceeding six months'. Is it the case, if an inspection is undertaken to ensure that the issue has been rectified, that another permit can be issued straightaway if all the authorities are happy with it then?

Mr PICTON: Again, I stress that there are two issues: there is the ability to get a permit under this act and our proposed regulations for trading on the street, but then there is the ability to run a food business in general which you need to apply for under the Food Act . Those penalties, and obviously I do not have the details in front of me now, can be severe and I believe can include even imprisonment as a more severe penalty.

In terms of the on-street trading issues, there would be a lot of the things that could cancel your permit, such as if you were obstructing a road or pedestrians and things like that. If they were significant, they could be grounds for the breach of a permit, or perhaps if you did not have insurance. Then we have added a six-month time frame so that you cannot necessarily go straight back to apply. However, if you were to reapply, you would have to confirm to those councils that you have met all the requirements to reapply. For instance, if you breached it for not having insurance, six months later, when you reapply you would have to confirm to the council that you did have insurance in order to apply for a new permit.

Clause passed.

Remaining clause (7), schedule and title passed.

Bill reported without amendment.

Third Reading

Mr PICTON (Kaurna) (18:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.