Local Government (Boundary Adjustment) Amendment Bill

Committee Stage

In committee.

(Continued from 2 March 2017.)

Clause 1 passed.

Clause 2.

Mr GRIFFITHS: I note that the act will come into operation on a day to be fixed by proclamation. The second reading contribution from the minister refers to 1 January 2019 as the date, as I understand it. There are some reasons given for that, one being that there will be local government elections in November 2018. This was not given in the detail of the second reading, but why was contemplation not given to it being 1 January 2018? I know that in some of the consultation I undertook as part of an earlier responsibility there was support for the changes to be in place sooner rather than later.

The Hon. G.G. BROCK: Whilst I note this is somewhat delayed, presuming a passage through this house to another place, this will give the commission ample time to develop the detailed and thorough guidelines required by this bill that will be essential to the process of boundary change. I also expect that the commission will consult closely with local government and more widely on those guidelines that are developed, and a later commencement date will enable this to happen.

If there is demand for a boundary change in the meantime, I remind members that the current act enables councils that are in agreement with each other to initiate boundary reform proposals. This has had lots of consultation, so that is where we are going on that one.

Mr GRIFFITHS: I appreciate that the consultation has been somewhat lengthy; on reading my notes again I think it was sometime in the last third of 2015 when consultation commenced. Given that the minister introduced the legislation in November 2016 am I to presume, given the response the minister has provided, that there has been no work done at all by any group as to guidelines that are intended to be in place?

I understand that the grants commission will take on a more responsible role, but I would have presumed that as part of the minister's department some work would have occurred. It would also have been part of the discussions with the Premier's local government forum, what the specifics of it might be.

The Hon. G.G. BROCK: There have been lots of discussions through the Local Government Association, and this is also going to go through the Local Government Grants Commission. It would be improper for the Local Government Grants Commission to set guidelines at this stage, before the parliament has accepted or received this bill through the process.

Clause passed.

Clauses 3 and 4 passed.

Clause 5.

Mr PISONI: This clause seeks to:

…collaborate and form partnerships with other councils and regional bodies for the purposes of delivering cost-effective services (while avoiding cost-shifting among councils), integrated planning, maintaining local representation of communities and facilitating community benefit;

Are there any requirements in that section for any consultation at all for that purpose? If so, what is the intent of those who should be consulted if any of these changes are implemented?

The Hon. G.G. BROCK: The Local Government Association has requested additional amendments to the act to support the development of effective regional governance models in local government. This bill therefore amends section 8 of the act to outline the objectives, objects and the principles of regional collaboration and partnerships. Further, as part of a council boundary-informed framework, the principles for boundary change will also include consideration for regional activities.

The bill also amends the act to include a requirement for councils or other regional bodies to demonstrate the potential benefits of regionalisation, which have been assessed as part of the long-term planning in this way. The bill supports the effective future of local government in this state, be that through regional service delivery or consideration of council boundaries that best reflect the needs and aspirations of communities across South Australia. I also note that the commission will consult on any of its considerations for regional collaboration, as it will before any of its recommendations go forward.

Mr PISONI: Will this prevent a group of councils pooling resources such as payroll? What are the processes if pooling of resources results in redundancy of staff? Is there anything that assists councils to deal with that matter if they decide to introduce these cost-saving measures by pooling resources, as is the intent of this clause? Is there anything in this bill that assists them in dealing with industrial relations matters or making changes to their enterprise bargaining agreement, if need be?

The Hon. G.G. BROCK: The effect of this bill is to assist councils to fully further resource share, as the member for Goyder pointed out. The bill will assist those councils. By going forward with this, obviously each council has a different EB agreement. That will have to be discussed at the appropriate time, but it certainly will be taken into consideration if and when that happens.

Mr PISONI: Does the bill prevent the local government minister, for example, assisting councils that might need to deal with industrial matters to implement these shared arrangements?

The Hon. G.G. BROCK: The bill allows those councils, if they are going to go in that direction, to recommend to the commission. The commission can recommend but cannot require councils to go in that direction.

Mr PISONI: But if councils decide to take that direction, is it the intent of the bill for there to be advice or resources available to those councils to deal with a changed industrial situation? I would suspect that changing many years of entrenched practices will not be easy. What I am trying to ascertain from you, minister, is whether there is anything stopping you as the minister providing resources to local government to assist councils with any industrial resistance they may have in order to implement these changes and deliver their services more efficiently and effectively.

The Hon. G.G. BROCK: First, I have to reinforce that it is the commission that will be doing the work and the investigation, not the minister. If the commission investigates the potential of a collaborative model, these matters will be considered in the proposal as it goes forward. I have to go back and say that it is the commission that will be identifying this and going through the process. All these things will be covered by the commission through the investigation.

Mr PISONI: I understand that the commission will be making the decision on this, but it will be doing so at the request of either the minister or the councils. Is there anything in this legislation that prohibits the minister from assisting councils to help them change their industrial arrangements so that they can achieve the outcomes that the commission has agreed they can achieve?

The Hon. G.G. BROCK: This does not preclude the minister from being involved with that. Those sorts of things will be taken into consideration by the commission when it comes through the process. It certainly does not preclude something like that happening, but it also does not compel the minister to do anything.

Mr PISONI: Does the minister need any direction, or can the minister do it without the direction, support or recommendation of the commission?

The Hon. G.G. BROCK: At any time through this process the commission can come to the minister for assistance and things like that. However, the decisions and those sorts of outcomes will be discussed as we go along. Certainly, the councils can ask the minister directly, if they feel that that is the way to go. It will also go through the commission.

Mr GRIFFITHS: I have listened to this answer quite seriously. Minister, you raised the point of the commission being involved. I do not accept the fact that the commission is involved. This clause relates to section 8 of the Local Government Act. Section 8 of the Local Government Act does not actually have any reference to the commission; therefore, if I read this clause alone, it refers to principles that the minister has control over, not the commission itself. Can the minister seek further clarification from his adviser, because I do not accept the response? I completely accept the last part of your answer where you refer to the opportunity to approach the minister, but I do not accept that as part of this clause the commission is actually involved.

The Hon. G.G. BROCK: The member for Unley's question, as I understand it, relates to conditions and processes. The member for Goyder is more on the principle side, as I understand it. Certainly, the whole concept of this is to encourage regional collaboration, for those councils to get together and look at the best economic and strategic opportunities.

Mr GRIFFITHS: While I have an issue with the minister's response, I recognise that it is a question of the specifics of the answer, not the specifics of the legislation. I do support the intent of this clause very strongly. I will accept the response, even though we have a difference of opinion about the words used.

Clause passed.

Clause 6 passed.

Clause 7.

The Hon. G.G. BROCK: I move:

Amendment No 1 [LocalGov–1]—

Page 4, after line 33 [clause 7, inserted section 27(3)]—Insert:

(ba) must set out procedures relating to the determination by the Commission of the reasonable costs of an inquiry for the purposes of section 32B; and

Amendment No 2 [LocalGov–1]—

Page 9, lines 5 to 10 [clause 7, inserted section 31(8) and (9)]—

Delete subsections (8) and (9) and substitute:

(8) The Minister may, on receipt of a report, request that the Commission make specified amendments to the report (including to recommendations in the report).

(9) On receipt of a request under subsection (8)—

(a) the Commission may make such amendments (if any) as the Commission considers appropriate; and

(b) if the Commission makes amendments, the Commission must—

(i) publish an amended report on a website determined by the Commission; and

(ii) provide a copy of the amended report to the Minister.

Mr PISONI: On the setting out of the procedures relating to the determination by the commission of reasonable costs, are they restricted to legal costs or are they costs that could arise in some other way?

The Hon. G.G. BROCK: They are the costs of the inquiry, at this stage. If it is helpful, I will explain the first amendment for members. This amendment requires the commission to publish guidelines that will detail the process that would be used to determine the cost of an investigation that is undertaken as required under new section 32B.

New section 32B requires councils to resource the investigations of general proposals that they initiate. Of course, I am aware that a number of councils and the Local Government Association oppose the idea that the commission can require councils to pay for these investigations. Over the course of the development of this bill, I have made my view on this matter very clear; that is, if councils have the right to initiate proposals, then councils should also have the responsibility to pay for those investigations.

However, I have heard concerns from the local government sector that councils will be reluctant to put forward general proposals to the commission if they are not sure of the costs involved. I therefore propose this amendment in order to provide an assurance to councils that a proposal will not proceed to an investigation under new section 32B without the commission consulting with the council on the likely cost. The guidelines that the commission will be required to produce will detail this process so that a council can understand the expected cost of the investigation before the proposal proceeds. If this is in excess of what the council is prepared to pay, then the proposal can be removed.

Amendments carried.

Mr GRIFFITHS: I have questions on clause 7. I refer to the legislation that was provided to me last year. I refer to page 4, and an amendment to new section 27(2). That is where it refers to the guidelines. I have asked a question about the guidelines and it appears that no work has occurred on that yet. New subsection (3) goes on to talk about some specific areas that the guidelines will consider and new subsection (4) is rather interesting because it provides:

A provision of the proposal guidelines may be of general, limited—

and this is the important one—

or varied application

Can the minister identify what a 'varied application' means.

The Hon. G.G. BROCK: The varied application could include the drafting of this clause. It simply intends to give the commission full flexibility in drafting guidelines for this process, as is necessary.

Mr GRIFFITHS: Just to clarify, do the guidelines therefore become a policy to be applied by the commission or are they some form of regulation that has some level of parliamentary scrutiny attached to it?

The Hon. G.G. BROCK: First, they will be prepared by the commission. The commission will be responsible for that. There is no opportunity or room in this for the minister to direct the contents or recommendations of the commission.

Mr GRIFFITHS: Therefore the minister has no impact upon it and therefore the parliament does not have any impact. It is just purely the commission preparing and using it as the guidelines upon which they operate.

The Hon. G.G. BROCK: That is one of the reasons that I believe the commission should be completely in that on all the guidelines. The commission should consult very carefully and as widely as it can.

Mr GRIFFITHS: Consulting means the minister also being engaged in that consultation and having some input. I will accept the minister's response. It is just that I believe that the debate on clauses during the committee stage helps guide what occurs in a practical way. That is why I want to ask some questions, to clarify some issues. Minister, I now refer to page 5 of the bill. New section 28(1)(d) provides: 'by the prescribed percentage or number of eligible electors'. Can the minister confirm what that figure is?

The Hon. G.G. BROCK: The intent for the prescribed percentage is 10 per cent.

Mr GRIFFITHS: I seek clarification. I think I might have this one wrong, so that is why I will seek some indulgence from the minister. New section 28(2)(c) provides:

the incorporation within the area of a council a part of the State that is not within the area of a council.

Therefore, if it is out of council boundaries currently, is that where it is identified only by the number of people and not by the percentage of eligible voters because they are not currently eligible voters for local government elections? Is it purely local government elections or is it potentially for the House of Assembly and a state election?

The Hon. G.G. BROCK: Let's get some clarity on that one and come back to make certain that we get it correct.

Mr GRIFFITHS: If I may go to my next question, please.

The CHAIR: Is it still on clause 7?

Mr GRIFFITHS: It is.

The CHAIR: Off you go.

Mr GRIFFITHS: I will refer to the bottom of the page and to new subsection (3)(a) where it talks about the commission refusing to inquire if the proposal is 'vexatious, frivolous or trivial'. I understand the inclusion of the words, but it becomes a very objective assessment. Is that where the intention is for guidelines to exist which create some certainty to that?

The Hon. G.G. BROCK: It will be up to the commission to decide the guidelines, but certainly the commission will make certain that there is no confusion. The guidelines should assist people without making a frivolous opportunity or move going forward.

Mr GRIFFITHS: If I can go to the next question area, just over the page—

The CHAIR: On clause 7?

Mr GRIFFITHS: It is and paragraph (c) at the very top of the page:

(c) the proposal is the same as or substantially similar to a proposal that has already been inquired into;

I understand why that is there, but the question I have that stems from that is: is there some time frame involved? There is the potential (I am not sure how likely it is, though), on the basis that the legislation will be in force for some time, that it could go out into the future. If a suggestion from the community for a boundary amendment occurs in two years' time, but then 10 years after that a similar one comes through and the demographics and the intensive land use of the area has changed significantly and it has a far greater population, is the suggestion that, as part of that, for those issues, where there is a significant change, you would consider it again even though it is the same as what was dismissed 10 years before?

The Hon. G.G. BROCK: The commission will determine in its view if it is substantially different and, if it is not, it will remain the same.

Mr GRIFFITHS: I accept the response that the commission gives consideration to it on its merits at the time and then makes a determination. If I can go to the very bottom of that page, which is new section 30(5) the second to last line (and this is for administrative proposals), states that it 'may involve such variations as the Commission thinks fit to the administrative proposal'.

Earlier on in this clause, it talks about consultation with the minister, if the commission thinks fit. Is that a decision that it is authorised to make by itself, or is there intended to be a requirement for consultation with the minister? I know that reference is made to consultation with the minister before this, but I just want some clarification on 'if thinks fit' includes review by the minister.

The Hon. G.G. BROCK: I note that these clauses refer to 'minor proposals'; therefore, there is flexibility for the commission to make only minor changes without consultation.

Mr GRIFFITHS: New subsection (7)(a)(i) states that the administrative proposal may mean a proposal 'to facilitate a development that has been granted a development authorisation'. As part of an earlier briefing, I asked a question about this, but I am interested in, where there is a boundary adjustment to a council on the basis of a development that has been approved, I presume, how that stimulates a boundary adjustment. I am unsure, and I think it is important to put on the record where a development proposal on a portion of land is the driver of a council boundary. I seek some clarification from the minister on this.

The Hon. G.G. BROCK: It would need to be a separate proposal to the commission. The development application could not take that into consideration, but you would expect that the commission would take the work done on the development into their consideration.

Mr GRIFFITHS: I thank you for your response, but that still does not make sense to me. I am not trying to be cheeky, but I am looking for a practical example of where development approval granted to a portion of land is the stimulus for a boundary adjustment to occur. I am not sure if I can envisage it. I know that it is of a minor nature and I understand that.

I know it is important for legislation to exist that provides opportunities for change to occur, and I have no argument with that, but I am still unsure why this is included. Unless it relates, on the basis of development, to what the cost implications might be from the rates charged on the land, I am unsure why. I can understand if the council line goes through a portion of land; if that is the response from the minister, I can accept that, but I am interested to find out.

The Hon. G.G. BROCK: It would be nice if I had an example—for argument's sake, a nursing home over two boundaries or something like that. But, to make it very clear, I would prefer to get more information on that and come back. I want to make sure that we get it correct.

Mr GRIFFITHS: My next question relates to new section 31—Inquiries—general proposals, on page 8 and new subsection (2)(b), 'councils affected by a proposal the subject of an inquiry are consulted on proposed appointments'. It relates to the people who do the investigation on that, but what if for some reason the council from the panel of people who are appointed to undertake the investigation does not accept the suggestion of who that investigator is to be? Is there an opportunity for a council to say, 'No, we would prefer it to be such and such'?

The Hon. G.G. BROCK: No. The council can be consulted, but they cannot object to the person, to say no.

Mr GRIFFITHS: I refer to page 9, to new subsection (9), which provides:

The Commission may, after complying with any directions of the Minister—

I seek some clarification. In an earlier response, the minister talked about the responsibility that rests with the commission. I appreciate the fact that that is the Local Government Grants Commission, but in this case it implies that this is where the minister has the opportunity for a specific directive to be given, which does not seem to sit with the other explanation that has been provided. Can the minister outline why that opportunity exists in the legislation?

The CHAIR: While we are talking, we have already passed the amendments to clause 7, which means that subsection (9) printed here is no longer subsection (9). I am not sure if your question is going to add anything to this.

Mr GRIFFITHS: I apologise. I was not aware of the amendments from the minister. We can disregard this question area.

The CHAIR: Do you have a copy of this?

Mr GRIFFITHS: The member for Unley had shown it to me briefly.

The CHAIR: We did hand this out at the very beginning of deliberation on clause 7.

Mr GRIFFITHS: I am prepared to withdraw my question, if I may, and go on to the next area, which I do not think has been subject to an amendment.

The CHAIR: Then we are going to put clause 7 as amended?

Mr GRIFFITHS: No.

The CHAIR: You have more questions on clause 7?

Mr GRIFFITHS: Within clause 7, continuing.

The CHAIR: So, you do not have a question on the amended subsection (9) that you are talking about. Amendment No. 2 was to clause 7, which inserts a new subsection (9).

Mr GRIFFITHS: I understand that.

The CHAIR: You are now moving on to new subsection (10)?

Mr GRIFFITHS: No—beyond that.

The CHAIR: You are beyond that? Where are you?

Mr GRIFFITHS: It is still clause 7.

The CHAIR: We are still on clause 7. To what are you referring? I thought you were on inserted section 31.

Mr GRIFFITHS: I was on section 31, but I have gone beyond that now.

The CHAIR: Section 31 has changed now because of this.

Mr GRIFFITHS: If I may, I will go to page 10 and inserted section 32A—Powers relating to inquiries, which provides:

The Commission or an investigator conducting an inquiry under this Division may…by summons signed by the Commission…require a person's attendance

What if they do not attend? Are they able to reserve any right? What legal requirement is provided for them to attend this investigation, particularly because subsection (2) states that a person or council must not refuse, and then it states that a penalty of $10,000 is in place. The council I can understand because it has a direct impact upon them, but I am unsure about the inclusion of the words 'a person'. 'A person' can be many and varied and, indeed, someone not necessarily involved in a council operation.

The Hon. G.G. BROCK: This is a very serious process, as the member has said. At the conclusion of an inquiry, we are talking about a proclamation of the Governor to change council boundaries in the state. These changes could have large implications for all involved: councils, ratepayers, residents and staff of all councils. I hope that these penalties would not need to be invoked at all; however, there is a risk that critical information that will assist the commission to make a decision may not be forthcoming, for example, if an employee of a council did not provide information requested by the commission.

As there is a risk of the commission making a poor recommendation based on inadequate information, these clauses ensure that the commission or an investigator has sufficient powers to assist with the conduct of inquiries. The Local Government Boundary Reform Board, which was established in 1995 to facilitate the structural reform of local government in South Australia, had similar powers and, I note, never had to deploy them.

Mr GRIFFITHS: The reason I ask the question is so that I can understand if it is a council-elected member or a council employee, and I include them under the definition of 'council' in the legislation that is proposed, but I am unsure about the words 'a person'.

The Hon. G.G. BROCK: It is any person, regardless of their status with the council—that is the intent.

Mr GRIFFITHS: Another reason I ask is that subclause (3) talks about a person not being obliged to comply with that if they believe that it so might incriminate the person of an offence. That person is making the judgement. If the commission wants to try to put a $10,000 maximum penalty upon them, the investigator would disagree with that, but the person has made the judgement that they did not choose to. I am just being a bit pedantic about this, potentially, but I want to make sure there are some clear guidelines given as part of any potential legal action that might be taken, given you are talking about a penalty of up to $10,000.

The Hon. G.G. BROCK: This is a standard clause where powers are given to organisations through the parliamentary legislative requirement.

Clause as amended passed.

Remaining clauses (8 to 11), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.G. BROCK (Frome—Minister for Regional Development, Minister for Local Government) (16:42): I move:

That this bill be now read a third time.

Bill read a third time and passed.