Industry Advocate Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

Ms CHAPMAN: If I could clarify the position to date. We have a situation where the Industry Advocate is currently accountable to the Minister for Finance, but I understand that in future, once this statutory body is established and passed in legislation, that it ('it' being the position, he or she) will be accountable to the Minister for State Development.

Mr PICTON: As I was saying before question time, at the moment there is obviously no legislation covering the Industry Advocate. It reports to the Minister for Finance and also, I believe, in some respects, to the Minister for State Development. Also, in terms of a lot of its industry promotion work, it works with the Minister for Small Business.

Bringing it into a statutory provision creates roles for the minister as per lots of other pieces of legislation. The minister is not necessarily defined in the legislation, and it would be up to the Premier and the cabinet to determine which minister it would be connected to once the legislation is enacted under the administrative orders. I would expect that would probably be the Minister for State Development. I would not want to pre-empt the decision of the Premier and cabinet in that regard, but I expect that would be the case.

Ms CHAPMAN: The Chief Procurement Officer is an appointment currently accountable to the Chief Executive of the Department of the Premier and Cabinet. Is it anticipated that he or she will continue to be accountable under that arrangement, or would that role be somehow or other transferred to the minister who is in charge of the Industry Advocate?

Mr PICTON: No, there is no change to the State Procurement Board. The State Procurement Board obviously has its own legislation that is not being amended through this legislation; hence, there is no change to that board or the Chief Procurement Officer and the arrangements they have in terms of their reporting.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Ms CHAPMAN: Clause 4 relates to the establishment of the statutory position. As the assisting minister has pointed out, under the proposed clause 4 the role must seek to promote, firstly, government expenditure that results in economic benefit; secondly, value for money for public expenditure; thirdly, economic development of the steel industry and other strategic industries; and, fourthly, capable businesses based in South Australia being given full, fair and reasonable opportunity to tender and participate in government contracts.

There is an equity aspect to it in addition to a promotion aspect, if I can put it in that general way, with rights down the track as to who he should report to if there is some mischief or failings in these regards. Firstly, in respect of the promotion for government expenditure that results in economic development, is that the clause designed to suggest that there should be some weighting in the strategies or in the plans for local content of labour or product?

Mr PICTON: Yes. As the deputy leader has alluded to, clause 4 is where we say that the government must establish a South Australian industry participation plan. Of course, we have had one of those for a number of years. It had significant revision about four years ago when the Industry Advocate was brought in. From that time onwards, the plan has included a percentage to be weighted for the economic contribution to the state.

What we are saying in this legislation is that the minister must, in establishing this plan, seek to promote government expenditure that results in economic development for South Australia. In the future, I guess there could be different interpretations of how that could be done. Certainly, this government believes that the process we have in place under the industry participation plan is the right one and, in fact, leads the country in actually determining the proper benefits of individual projects to the economy in South Australia.

Ms CHAPMAN: Referring to that plan, do you mean the South Australian Industry Participation Policy?

Mr PICTON: Yes, sorry, the policy.

Ms CHAPMAN: Thank you—with the capacity to deal with guidelines. Subsequent to our briefing, I have now been provided with the detail of the changes to the policy and guidelines that were recently reviewed, and a new published policy and guidelines are online. I thank the office for the provision of that today in identifying the updates in that regard. Let's go to value for money for public expenditure. I think that is pretty self-evident. We do not necessarily want the cheapest, but we are looking for a good product in the contract or service to the state that produces some value for money.

As to the advocate's role to assess these, subsequent to the briefing I have been provided with a summary of some of the major projects which, although not in a statutory entity, have a role in which the Industry Advocate and his advisers—and I think Ms Chandler who has a policy and a surveillance role in relation to the office—have been monitoring. They have already been monitoring some major projects in the state, and they make an assessment in dollars as to the value of the labour directly engaged by the contracting party, the value of the work packages awarded by the contracting party, the number of work packages actually awarded and the number of work packages that are listed and the number of work packages, which I think are then divided into an overall category and a South Australian breakdown, if I can generalise it in that way.

I thank you for providing that because it gives a helpful summary of how there is subsequently a calculation as to the dollar value of the various aspects, largely of the project and then the South Australian content, if I can generalise it that much. Ultimately, statements have been made in the second reading contribution by the assistant minister that there has been an increasing focus on goods and services from South Australia and that it has grown in recent years from 65 per cent local content to 80 per cent since the Industry Advocate role was created.

Whilst the extra information has suggested that the trend is positive and that it is reasonable to expect an 81 per cent target for the 2017-18 year, what I do not have is the model upon which these calculations are made. I am not in any way suggesting that the information that has been provided is inaccurate. But, for example, take one of the projects such as the Torrens Road to River Torrens project, which is a major project obviously. It has been identified, at least at September last year, that there was a $41.98 million direct value in labour engaged by the contracting party and that the number of work packages was 212, for example.

Whilst there has been some explanatory material identified as to what the definition of those are, there is no indication of how that is actually calculated or from which documents that information is obtained or assessed. I am assuming that at present, under the contract, obviously there is a cost involved in the contract so that is not difficult to identify the amount, but in the breakdown between local and non local, there must be some way in which this is being assessed, whether it is all on information provided by the contracting party or whether the Department of Planning, Transport and Infrastructure, which often is the supervising party of these major projects, has an input into this as to who might do the calculations.

I appreciate that it may be more complicated than being able to necessarily explain today. I am happy for the detail of the modelling of that to be provided between the houses, but I am keen to have it to be able to identify what it is that the assessors—in this case, the Industry Advocate and its officers—are relying on for the purposes of this breakdown.

Mr PICTON: I think the question essentially is: for the benefits to South Australia of those major projects, how are those figures worked out? The process is that, once a major project is awarded—for instance, the Torrens to Torrens project—under our Industry Participation Policy there is a panel for each of those projects established. It includes the contractor, it includes people from DPTI (or whichever the relevant department would be) as well as the Industry Advocate or his nominee on that panel.

Through that panel there is an assessment made and the Industry Advocate is very heavily involved in going through the documents and making that assessment. He looks through the details, in making that assessment, of which of those works and which of those employees are from South Australia and delivering benefits for South Australia. Obviously, a lot of that information is very commercially sensitive, but the Industry Advocate is right there through that whole process on that panel as the project is being delivered, ensuring that he has oversight of that and has the ability to make sure that that is being delivered as promised.

Ms CHAPMAN: Is the information only coming from the contract and—to be fair, I will add the reference to what I think this is called—the local industry participation and job creation documents?

Mr PICTON: As I understand it, once the contract is awarded, the panel receives the information from the contractor, who obviously holds the information in terms of what work they are doing and what work the subcontractors are doing, looks through the information and makes that assessment based on the information that is provided to the panel by the contractor.

Ms CHAPMAN: Is that all done either on the documents that are presented to the panel or the oral statements of the two parties representing the two contractors on the panel?

Mr PICTON: There are essentially two aspects to that. Before a contract is awarded there are obviously multiple people bidding for the contract. During that process there is a determination made of what the economic benefits of the respective bids are. There is an assessment made and then that assessment forms part of the eventual contract as an attachment to that contract.

What I thought we were talking about was, once the contract has been established and has been signed with one particular party—there is only one contractor, obviously, from that time on—all the information is delivered through that process and that is when the panel is established with DPTI, the contractor and the Industry Advocate to work through that process for the entire length that the contract is in process.

Ms CHAPMAN: Who prepares and/or makes the decision on the economic benefit statement, which is done on the assessment on each of the tenderers? Who does that?

Mr PICTON: That assessment is done by Ms Chandler's team in the Department of State Development. Obviously, she works very closely with the Industry Advocate and that assessment will be done of each of the relevant bids before a decision is made.

Ms CHAPMAN: Is that assessment done based on the material presented with the tender? If that is it, that is fine, but if it is anything else can you tell us what else it is relying on?

Mr PICTON: That is based on the information that they will provide, based on The Industry Participation Policy. The policy sets out that each tenderer will need to provide a plan for how they want to determine and want to deliver economic benefit for South Australia. They will provide that information in the format that we set out in the policy and then that information will be assessed by the DSD team underneath Ms Chandler. An assessment will be made of each of the respective bidders before a decision is made.

Ms CHAPMAN: So the economic benefit component is actually presented with its supporting documents from the proposing party who is putting forward their best position, including how it is going to benefit the state, how many local people are going to be used, what services and products are going to be used, etc. Is that with or without ancillary documents of calculation—that is, by corporations such as Ernst & Young and the like—or is it just simply a submission with the claimed expectation of benefit?

Mr PICTON: They will provide information. If, for instance, you are building a road, they will say, 'We intend to hire particular subcontractors,' and that will involve a certain amount of South Australian labour from those subcontractors and a certain amount of capital. If you are using cranes that are in South Australia, all of that is very economically important to the state.

They will send that information out to us and present their best case of why they deserve the contract. That will be assessed by the DSD team as to what percentage of that 15 per cent they should get as part of the tender evaluation for that. After that, I think where this bill becomes really important is in terms of the Industry Advocate having that role to monitor and ensure they meet those commitments they have made at that initial stage when they are bidding for the work.

Obviously, people want to present their best case when they are bidding for the work. Certainly, since we have brought in these changed policies four years ago, we have seen people really stepping up and wanting to engage with local contractors to make sure they are putting their best foot forward to win that work in the initial stage.

When there were much lower criteria with much less information needing to be given, people worried about it a lot less because it factored less into the overall decision. We really want to make sure that the Industry Advocate, after the contract has been decided, has the full powers that he needs, and the ability to get the information that he might need in the future, to assess that people are actually delivering on all those commitments that have been made.

Ms CHAPMAN: I understand the second stage; I am still on stage 1. On stage 1 then, is the assessment or certification of Ms Chandler's team on the tenders presented to the body or person who makes the decision on the tender, or is that just kept for their own records?

Mr PICTON: Particularly on the major contracts, Ms Chandler has a panel that includes a number of experts, particularly in construction. They will provide advice to her and the team on what the assessment of those bids should be, and it is that DSD team that makes the decision on the 15 per cent, or I think it is 20 per cent in northern Adelaide under the policy. They will provide that information and say, 'We have determined that this bid is 14 per cent out of 15 per cent, and this one is 12 per cent out of 15 per cent.' That then goes to DPTI, or whoever the lead contractor is, to make the final decision, but when that goes to them the assessment has already been made in terms of the 15 per cent.

Ms CHAPMAN: I have a couple of other questions in relation to subclause (2)(c), which relates to identifying particular industries. Before I ask those, I will use the Torrens Road to River Torrens project as an example because that has been referred to. Yesterday, the parliament received an Auditor-General's report on this project.

I do not know whether the assistant minister has had the opportunity to read it yet, but in that report the Auditor-General made a number of findings in respect of that project, including that there were some areas in which DPTI's oversight as a project owner was wanting. I think this is the kindest way I can describe it. Secondly, 'For planning, evaluation and approval we found that DPTI did not have a process in place to check that the project complied with the evaluation and approval requirements of Treasurer's Instruction 17.'

Thirdly, the Auditor-General found that DPTI needed to review their policies and procedures for receiving gifts and benefits and financial rewards, as apparently some officers of the department had been receiving some invitations to treat from parties in respect of the contract, and there needs to be register rules about those. He went on to say that he found proper accounting of all the commonwealth money that was coming in and a few other things, but also some fairly serious deficiencies regarding one of the parties to the contract in respect of that particular proposal.

I am just wondering whether in the course of the assessment by the Industry Advocate of these projects—and this project in particular, its tendering process for the original and/or its monitoring of that project since—any of these three deficiencies were identified.

Mr PICTON: I thank the deputy leader for her question. I had a cursory look at the report when it came out yesterday, particularly to see whether it had any relevance to this bill. I think most of the issues raised were regarding the general responsibilities of the Department of Planning, Transport and Infrastructure and its minister and its arrangements, rather than matters that would form part of the role of the Industry Advocate.

The Industry Advocate and the team in DSD who support that have played their role in terms of the assessment of the industry participation and the benefits to the South Australian economy. I am not sure that their scope extends to any of the matters raised in the Auditor-General's Report. However, I am happy to take that on notice and come back if there are any matters that did touch on what is in the report.

Ms CHAPMAN: A briefing was kindly provided by the Industry Advocate and Ms Chandler in respect of matters raised by the Auditor-General in his 2016 report regarding how this entity was going, having been operating for a number of years. He apparently did an assessment of how four agencies were dealing with their industry policy compliance and it seems that four were wanting: the Attorney General's Department, which does not surprise me given what has been happening in that department; Primary Industries and Regions SA; TAFE SA; and the Department of State Development, which is the very department responsible for the Industry Advocate. In any event, it was deficient. The report found:

DPC's approach to procuring film services did not consider acquisition planning at the outset to develop a strategic approach…[It was not documented] how compliance with the South Australian Industry Participation Policy was met.

That is information provided directly from the Industry Advocate's office. DPC advised that they addressed the issues through procurement training workshops in late 2016. As this was one of the highlighted areas of noncompliance, even though there seems to be some information to suggest that people had been retrained in some way, can the assistant minister tell us which film services that were procured were deficient?

Mr PICTON: I am not sure, to be honest. I am happy to take that on notice. I think that was meant to say the Department of the Premier and Cabinet, not the Department of State Development, as it then goes on to say in that paragraph. We will get you some information on that.

Clause passed.

Clauses 5 and 6 passed.

Clause 7.

Ms CHAPMAN: This is the ministerial direction clause which, in my view, seems to undermine this process completely and make it some sort of hybrid process. Either they are an independent statutory body or they are not, but in this case it seems they have given it a name and they have to account to a minister after keeping an eye on certain things, particularly the behaviour and compliance of certain contracting parties, yet they are to act under the direction of a minister. I am rather puzzled as to why that should be there. We seem to have a roundabout independence here, which makes it really a bit of a nonsense. Nevertheless, whoever fills this role in respect of the future Industry Advocate, we will see how that operates.

As I have said, we are not objecting to the actual implementation of it, but it does seem a little inconsistent. In respect of the position itself, if the bill passes both houses of parliament and is enacted, which it may do of course in the next few weeks, is it proposed that this position is going to be offered for consideration of any applicant, or is it to be offered just to the current Industry Advocate?

Mr PICTON: Firstly, I will just respond quickly to the issue about the directions raised by the deputy leader. I understand that this is a relatively standard clause that appears in many statutes, but I would say that, in particular, it sets out very clearly that no direction can be issued in terms of a particular investigation, which I think is very important. I think that you would not want a minister directing any particular investigation of the Industry Advocate, so it is important that that provision is there.

Secondly, in terms of the appointment process once the bill is enacted, that is of course a matter for cabinet to consider and eventually recommend to the Governor who would be appointed as a statutory officer. I understand that that could be considered by cabinet to be part of an open process, or cabinet could consider that there was a particular meritorious candidate who already existed and who they may want to appoint to that position without going through an open process. I would not want to pre-empt cabinet in terms of its decision-making after the bill was passed.

Ms CHAPMAN: This question in no way reflects on the current Industry Advocate, who has undertaken the job over the last three years, but has the Industry Advocate received any advice from the government, and/or in particular the minister he is currently accountable to, that he will be considered to take up the statutory position?

Mr PICTON: Not to my knowledge, but I am happy to check if there have been any discussions along those lines. Certainly, it has not been a discussion that I have been a party to.

Ms CHAPMAN: In the last three years, has the minister to whom the position is accountable issued any direction for a particular area to be looked into? I do not mean as an investigation of any complaint or not as a complaint, but some area of government procurement that needs to be looked into, that is, 'I want you to look at the steel industry. I want you to look at the Rossi Boots contract,' or anything in particular.

Mr PICTON: I would say, in particular, that there has been a large amount of discussion between ministers and the Industry Advocate asking him to do work in particular on steel policy in the last three to four years. It has been something that the office has been dedicating an increasing amount of work in order to ensure that our projects are using as much Whyalla steel as possible, both in terms of steel that is produced at the Whyalla steelworks but also steel that cannot be produced there but uses billets from Whyalla. That has involved a whole lot of work.

It has led to the steel policy that we have in place. It has led to steel being highlighted in this bill and it has played an important role. The Industry Advocate has played a very important role in ensuring that we are increasing the amount of steel that we are using from Whyalla that meets Australian standards in our infrastructure projects.

Ms CHAPMAN: On the steel use in projects, the office has provided subsequent to the briefing confirmation, as follows:

Since the introduction of the Steel Procurement Policy in late 2015, the Office of the Industry Advocate has been keeping a summary of steel used in government projects, which is regularly updated when further information is available.

It then goes on to say that it should be noted reinforcing steel is typically sourced from the Eastern States and generally as to where they might source material from. It goes on to say:

The volume of South Australian steel on major projects is monitored through the work packages reviewed on a monthly basis by the Industry Advocate or his delegate.

There is then reference to a number of projects for which we were provided a summary, including the Torrens to Torrens, which I have referred to, and a number of others have been provided. In respect of the major projects that are currently monitored, is it the case that we can be told how much steel, either in tonnage or percentage, is being used on these major projects?

Mr PICTON: Yes, particularly on those major projects that have the panels established. This is one of the things that those panels monitor, to make sure that they know what the steel is, where it is coming from and, in particular, as I mentioned, whether it is directly from Whyalla, which is structural steel in the large part but also steel used for rail, as well as steel that has been manufactured in Australia and involves steel that started off in Whyalla. So we can go right through the supply chain to identify what started its life at Whyalla, which is obviously very important. I am happy to provide the deputy leader with more information on that.

Ms CHAPMAN: In provision of that, the projects that I have been given the summaries on are the Northern Connector, Torrens Junction, CBD high school, the O-Bahn city access tunnel, the Darlington upgrade, the Torrens to Torrens, the Flinders Medical Centre upgrade and the Kangaroo Creek dam. These are the ones that have been in this process in the last two years and are under monitor. In whichever way it is recorded, either as an expression of a percentage of the steel or tonnage, can we know how much steel is used? I do not know how steel is measured in that sense, but if you could provide that to us between the houses that would be appreciated.

One of the things that has been difficult to identify is how much local product has been used. Hence, we have had answers from the government to date in respect of the Royal Adelaide Hospital that show they really do not have a clue how much local steel has been used. I am not being critical of that at present. Obviously, it is a fairly recent regime of assessment that is being undertaken. In relation to the assessment on steel, for example, how are you able to determine how much is steel is produced in Whyalla as distinct from how much steel is provided by Arrium to fulfil the contract?

The reason I ask you this, just so that we are clear about it, is that one of the concerns raised in this whole steel debate is how much steel from overseas is being imported by Arrium to fulfil its contracts in South Australia. This is directly from people who work at the steelworks. Whilst I listened to the member for Giles' concerns about the future of industry, it is not a lot of help to us here in the parliament, or to any South Australians, if there is not a very clear identification of how much of the product is created in Whyalla, in this instance, because that is our major steelworks, as distinct from how much the contracting company brings in from overseas. Who is monitoring that and how on earth do we know?

Mr PICTON: Since the steel policy came in in 2015, there has been not only the process in terms of the panels established to look at steel but we also have a regime of third-party audits put in place in terms of steel in particular. The Industry Advocate has been working with independent third-party auditors, whose job it has been to do exactly what the deputy leader is concerned about—to identify where the steel came from. It is not merely a cursory check of some paperwork; it is an independent third-party auditor we are engaging to do that work.

Ms CHAPMAN: Does that audit process involve having someone at the Whyalla site, or does it mean identifying and reviewing all the certificates of assessment for Australian standards, or checking what comes into the country? How does that work?

Mr PICTON: It depends on the circumstances, but the third-party auditor will check the certification of all the steel that is being used, and if there is something that looks a bit questionable then the third-party auditor might go further and request some more documents or more evidence as to the location of where the steel originated. I am happy to get more information for the deputy leader on exactly the work that the auditor does to assure us where the steel came from.

Clause passed.

Clause 8.

Ms CHAPMAN: This relates to the term of five years. As I understand it, the current Industry Advocate—assuming that his application may be to continue in this role, as such—is under a contract at present, which has some three years to go. If he were to be either selected and/or appointed for the purposes of this role, is it proposed that that will be subsumed in a five-year appointment, or will it just continue on from the contract that is there?

Mr PICTON: You mean his current role, whether that would exist or not? In terms of the current position, once the bill is passed and enacted that would be replaced by the new position. In terms of the five years, that is obviously up to five years; cabinet could advise the Governor for a shorter period if they were so inclined.

Ms CHAPMAN: If the statutory appointment happens to appoint the incumbent, is it agreed or acknowledged that there is no payout on the remaining three years of the contract?

Mr PICTON: We will get some advice from the Office for the Public Sector on that matter.

Clause passed.

Clauses 9 to 12 passed.

Clause 13.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 7, after line 32—Insert:

(3a) A participant cannot be compelled to give information or a document under this section if—

(a) the participant is a party to a dispute or complaint (however described) in respect of a government contract; and

(b) the information or document is relevant to the dispute or complaint; and

(c) disclosure of the information or document would materially affect the participant's position in the dispute or complaint.

(3b) A participant cannot be compelled to give information or a document under this section if the information or document—

(a) has commercial value to, or relates to the commercial or financial affairs of, the participant; and

(b) disclosure of the information or document—

(i) may cause damage to the participant or the interests of the participant; or

(ii) may confer an unfair commercial or financial advantage on a person.

This amendment makes provision for information or documents that are produced, with an exception that the party to the contract cannot be compelled if that information is in respect of where that party is in a dispute or complaint in respect of a government contract and any information or disclosure that will materially affect that dispute or complaint. Secondly, a participant will also not be compelled to produce it if it has a commercial value, and that disclosure would obviously be contrary or cause damage to the interests of the participant.

This is two-pronged, particularly in an environment where there is no definition of what information and documents to include, to the extent that we would be expressly identifying that if a party who has been given a notice to produce this information or document is already in dispute with the government over that, and there is litigation or notices are given in that regard or, alternatively, they would say that if disclosure is not in their interests they should not have to provide it.

If the government were not insisting on clause 17 in this bill, which is the exempt agency under the FOI Act clause, then this would not necessarily be needed. Under the Freedom of Information Act, there is already a whole list of circumstances in which material kept by a government agency is not disclosable and does not have to be produced, i.e., it is a document prepared for the benefit of cabinet; it has personal information in it or it may cause conflict. In fact, I have even had an FOI rejected on the basis that it would be contrary to the cultural interests of an Indigenous group. I have had documents rejected on the basis that they might cause marital discord between two different parties who have given opposing submissions on a government planning action.

There are all sorts of reasons why parties may not be required to produce material under the Freedom of Information Act. They include where the material is commercial-in-confidence and it would be a disadvantage to them. In fact, we have had a whole District Court proceeding on that in respect of the Glenside Hospital and the Chapley company for the production of a letter. They claimed it would be adverse to their commercial interests if they had to disclose the particulars of a proposed retail outlet on the Glenside site.

So we have had all sorts of examples and plenty of common law to determine and protect those interests, but the government have decided, in their wisdom, that they will make the Industry Advocate an exempt agency except for the purposes of administration, financial information of the agency and something to do with statistics. They claim that it is based on the fact that it was a compromised position on the Small Business Commissioner bill. It may be in that act—I do not have any dispute about that—but the parliament should be reminded that it was the opposition's position that the Small Business Commissioner Act not be passed.

Whilst a compromised position may have been presented in respect of this issue of freedom of information to have the crossbenchers' support in another place, it does not mean that it came with our blessing. It still remains repugnant and it ought to be removed. If the government had one ounce of commitment to transparency and accountability, they would be rushing to delete clause 17 in this bill, but they do not. They say that they need to keep it to protect the interests of the parties whom they are investigating, in the broad sense, by the calling of documents, whom they might potentially prosecute and from whom they want compliance. They do not need clause 17.

Mr PICTON: We are on clause 13.

Ms CHAPMAN: I am saying that the government's insistence that they proceed with clause 17 is why we are moving amendment No. 1, to place in it protections to deal very specifically with the production of material and protection for those parties in those specific circumstances not to comply with a notice from the Industry Advocate to produce documents or information that would otherwise carry a penalty of a fine of up to $20,000.

That is why it is there. That is why I would urge the government, if they are genuine about the importance of this role—because we are not opposing the concept of having an Industry Advocate or a participation policy for South Australia's economic benefit—not to try to make it with some sort of secret Star Chamber-type approach. This is something they ought to be proud of and it ought to be public.

Mr PICTON: I thank the Deputy Leader of the Opposition for moving this amendment, though I have to inform her that the government will not be supporting it. I have to say that I think this amendment undermines entirely what we are trying to do in terms of this act and the powers of the Industry Advocate, nor do I see at all how it connects with her concerns about the Freedom of Information Act in clause 17. I have to say that, in terms of both proposed subclauses (3a) and (3b), I am concerned that this amendment would essentially give anybody who did not want to give information to the Industry Advocate a free pass to not give that information.

The whole idea here is that we want the Industry Advocate to be able to get the information on the delivery of the contracts to ensure that what they have promised is being delivered. However, if this were passed, it would mean that the participant to the contract (the contractor) would be able to say, 'We have a dispute under the contract and it would cause damage to us in terms of that dispute: hence, we are not going to give you any information on what we are doing.' Alternatively, it would give them the power to say, 'This information has commercial value and it might not be in our interests to give it to you: hence, we are not going to give it to you.'

Of course, any time that the Industry Advocate is using these powers, which would be in a very extreme situation in which we are seeing some noncompliance by one of the contractors, they probably are likely to be in dispute with the contractor, so it means that that power to receive the documents would not be available to the Industry Advocate.

Almost all the information that would ever want to be obtained by the Industry Advocate would have commercial value attached to it because this is about commercial deals that people have signed up to, and if they are not complying with what they have signed up to, and that causes a problem with the contract, then that means that there may be damage to them in terms of damages under the contract. We think this is dangerous, we think this is undermining what we are trying to do here and the government will be opposing it.

Ms CHAPMAN: I assume from that contribution that the assistant minister does not have any questions of me as the mover of this amendment because he has made it quite clear that he is going to be opposing it. I would just say then in response in dealing with this motion that, firstly, I am disappointed that the government has not accepted this; and secondly, on the briefings that I received, in the three years the Industry Advocate has operated in this space to date without any coercive powers, not once am I told has his request for information and documents been rejected.

It raises the whole question of whether we need to have this statutory provision at all and the coercive powers that are being imposed. What it does mean is that by introducing a regime where there are coercive powers and there is a fine process to follow for default or failure to produce we may well have created a situation that will produce a reluctance on the part of a party to provide that information.

Obviously, at present, parties are keen to contract with the government. It is entirely appropriate, once the government has committed to a certain contractor, that they have the right of supervision of the employment and application of that contract to be to the standard to which the government had contracted. That is entirely appropriate. But it is also entirely inappropriate that someone should face a fine in a circumstance where they may be in dispute with the party and that this is treated as a backdoor discovery application by the government. That is completely unacceptable. So, I am disappointed with the government's position on it but, be that as it may, there may be another place that sees it more meritorious.

Amendment negatived; clause passed.

Clause 14 passed.

New clause 14A.

Ms CHAPMAN: I move:

Amendment No 2 [Chapman–1]—

Page 8, after line 14—Insert:

14A—Review of certain decisions by South Australian Civil and Administrative Tribunal

(1) The South Australian Civil and Administrative Tribunal is, by force of this section, conferred with jurisdiction to deal with matters consisting of the review of a decision of the Industry Advocate under section 13 to require a participant to give the Industry Advocate information or documents (a reviewable decision).

(2) An application for review of a reviewable decision may be made to the South Australian Civil and Administrative Tribunal by the participant to whom the requirement relates.

(3) An application for review of a reviewable decision must be made within 14 days after the participant is notified of the requirement under section 13 (or such longer period as the Tribunal may allow).

(4) However, the South Australian Civil and Administrative Tribunal may only allow an extension of time under subsection (3) if satisfied that—

(a) special circumstances exist; and

(b) another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings.

This amendment inserts a review process to be in the format of a new section 14A. It is to provide for a review of a decision of the Industry Advocate under section 13. In other words, it is to have an appeal process to the South Australian Civil and Administrative Tribunal to review a decision of the Industry Advocate, who issues that notice.

In a simple process, if there were a party who received a notice and for whatever reason they did not accept that that was a valid or appropriate notice to be issued, they would be able to have it reviewed by the tribunal. In the absence of any review, all this party is left with is to go to the Supreme Court as a judicial review by a Supreme Court judge. Time and time again this government, including with the advocacy of the SACAT in this state—we were the last in the country but, nevertheless, we eventually got one—was to have a tribunal that would be accessible to deal with administrative reviews and decisions, and that is exactly what it was set up for.

It seems to me that the government's decision not to have any review process through the tribunal process that has been set up to do this, without the need and expense of having a judicial review in the Supreme Court, is completely unacceptable. It is very disappointing if the government does not accept this amendment because I have been in this parliament on a number of occasions where we have asked for some kind of review to deal with the lowest common denominator.

Again, this is no reflection on Mr Nightingale, who has had this job for three years and he may continue to have this position, but what if some complete goose takes up that position in the future? Somebody might retire from parliament and—

The CHAIR: Don't look at me when you say that.

Ms CHAPMAN: No, not you, Madam Chair. I was not expecting you to retire.

The CHAIR: No, but you looked at me and I got really upset.

Ms CHAPMAN: Exactly. I can think of other members in the other chamber who have already announced that they are going to be retiring. There are several of those—take your pick. Anyway, if one of them decided that they were going to take up this position and they were successful, then heaven forbid. We do need to have a review process. It would be very disturbing to me if the government resisted this. On a number of other occasions, they have agreed to administrative review and I would hope they see the merits of this again.

Mr PICTON: I regret to inform the deputy leader that the government will not be supporting this amendment. We have drafted this consistent with other information gathering procedures that are in place under other acts, particularly including the Small Business Commissioner Act and the Fair Trading Act. In fact, I think in those acts there are even stronger powers to request information, but it does not include a SACAT review process within those acts.

We think that the process in place in this act is appropriate. Hopefully, this will be a very rare occurrence in which this power will be used and not something that would need to require significant court time or use of administrative law appeals time to deal with.

New clause negatived.

Clauses 15 and 16 passed.

Clause 17.

Ms CHAPMAN: In respect of clause 17, we on this side of the house find that the proposal to make the Industry Advocate an exempt agency, along with other austere bodies such as SAPOL, ICAC and the like, is just laughable. It should not be there and it just indicates the capacity and intent of the government to do whatever they can to have a cover over their investigative operations. I think it is scandalous that they continue to do it.

It is bad enough that they have rejected a resolution of our whistleblowers legislation, which is sitting here in deadlock and about which every day we come in to say that we are going to allow it to sit during the course of this parliament, but not one time does the Attorney-General turn up to tell us even when we are going to have a deadlock conference. The last one was scheduled and he did not turn up; we were happy to call it the next day. Of course, this government does not want to have that scrutiny and they do not want whistleblowers to feel free to come forward, as Mr Lander has repeatedly pointed out. We had to drag them kicking and screaming to deal with ICAC.

Frankly, this is just one more reason why it is important that whatever laws we have in the Freedom of Information Act at least stand. I think they should be better. Mr Lander QC thinks they should be better. He gave this parliament a report several years ago to suggest how they should be better, and the government have done nothing about it, but at least it is there. So, at the very least, we ask the government to agree to withdraw this and not try to pretend that some sort of deal to deal with the Small Business Commissioner having that same clause is some excuse, pathetic as it is, for getting away with that type of conduct. We oppose clause 17.

Mr PICTON: I would like to respond for the record. I will not respond to any of the broader freedom of information concerns that the deputy leader has; I will leave those to the Attorney-General. In respect of this bill, essentially the premise behind clause 17 is the fact that the Industry Advocate will be dealing with very, very sensitive business information, as we have already previously discussed, and the deputy leader has already outlined how she thinks this will be sensitive information as well.

The Freedom of Information Act, as members would know, does not grant any automatic exemptions for information: there just may be exemptions for information. We want to make sure that, in terms of the operations of the Industry Advocate, what he does and what his office does, the reports that they produce and the information and data that they produce would all be available for freedom of information. But the Industry Advocate does other work in terms of going through the documents, going through the steel audits that we have been talking about, going through the reports regarding staff right down to the details of individual staff members and individual contracts and subcontracts and values and amounts of those contracts.

We want the Industry Advocate to have access to that information in order to do his or her job, but we do not want businesses to be fearful that, by obtaining access to that information, that is going to somehow get out into the public domain via the Industry Advocate, because then we would start to see more and more disputes, as the deputy leader was saying she was fearful of. We would see more and more disputes between the parties and the Industry Advocate regarding requests for information. We want to make sure that that sensitive business information is not affected.

In terms of the Small Business Commissioner, that act was passed. As the deputy leader said, the opposition voted against it, but then after that, as I understand it, there was a regulation put in under the Freedom of Information Act, so it sits in the FOI Act regulations. That regulation exempting the business information from the Small Business Commissioner, but allowing FOI for the operations of the Small Business Commissioner, is exactly the wording that we have copied.

I understand that went to the Legislative Review Committee as all regulations do, and this was wording that was agreed to and negotiated between the parties for that position. That is where we have taken, word for word, clause 17 of this bill from. I think it is good to put that sort of thing in legislation and allow the house to debate it, and I think that in this particular form it serves a very important purpose.

The committee divided on the clause:

Ayes 23

Noes 19

Majority 4

Clause thus passed.

Clause 18 passed.

Title passed.

Bill reported without amendment.

Third Reading

Mr PICTON (Kaurna) (16:51): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:51): Deputy Speaker, thank you for your excellent chairmanship of the committee in respect of this bill. I would also like to acknowledge Mr Ian Nightingale and Ms Nari Chandler, who are the Industry Advocate at present and Director of Public Policy respectively, for their advice and information provided during the course of consultation and consideration of this bill.

If Mr Nightingale is ultimately accepted, I want to thank him for his work in this area to date and wish him well in respect of the continuing position. I want to especially thank him for the work he did in relation to the reassessment of the contract for the Kangaroo Island Walking Trail, which was otherwise going to be given in full to a Tasmanian company that apparently had expertise in mountain biking or some other such thing and not walking trails. Ultimately, some discussion ensued in which at least local contractors were given an opportunity to undertake that work. That is the only matter I personally have been involved in taking to the Industry Advocate.

I referred a matter in respect of Rossi Boots and an application for their use by the police force, which a former commissioner had specially designed and made up. The Rossi Boots company locally had worked out and tooled their equipment to ensure they made the product. Sadly, the government had a change of policy that enabled police officers to buy their boots directly and from alternative companies. It might have been a voucher system or whatever that produced greater value, but of course it did not for the local company.

I do not know what actually happened to that in the end. I certainly hope that some police officers are wearing Rossi boots because it is all very well for this parliament to consider the legislative models we have for the surveillance and protection of the interests of South Australians, but in the real world they fall apart.

I wish the office and those employed in it well in the pursuit of what is a worthy objective, and that is to ensure that the government, in its very powerful position of the procurement of services, whether it be at a smaller level for departments, as to who feeds the prisoners at the children's prison or who does the laundry at hospitals, or major projects and the products we use, it does the best it can to ensure opportunities for the future of South Australians.

Bill read a third time and passed.