Bills

Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Bill

Committee Stage

In committee (resumed on motion).

Clause 10.

The CHAIR: We are on clause 10. Member for West Torrens, you have asked one question on clause 10.

The Hon. A. KOUTSANTONIS: The minister has not answered it.

The Hon. D.C. VAN HOLST PELLEKAAN: I have not answered, and that was why I was particularly keen to make sure we did come back into committee. The answer to the question essentially is that the powers that are vested in the officers, as you described previously, are enforceable by courts. It is not a power to enter. It is not a power to force anybody physically in any way. It is an authority, hypothetically, a right to information: 'Company A, you must provide this information.' Company A refuses to do it. It is then enforceable by court to require company A to provide that information.

It is not the type of thing where I would have great sympathy with the member for West Torrens, if it were a right to come onto somebody's farm or that sort of thing. I am advised it is purely streamlining, essentially, so that the AER can get the information it needs to do a thorough investigation when it believes that is warranted. If company A refuses to provide the information, then it is a legal proceeding, essentially, by the AER to try to force the company to provide the information.

The Hon. A. KOUTSANTONIS: I think the minister and I here are probably both pushing on the same open door that maybe the bureaucracy in the AER might not like. The powers he is talking about now are the same powers that the ICAC have. We are giving greater coercive powers to a body that is not judicial, that is, the AER. We are putting amendments in the bill that I am going to vote for, that the minister is proposing that come from the COAG council, that compel people to answer questions even if it incriminates them.

We are removing silence as a defence: 'I refuse to answer that question.' If you do so, there is a penalty in place, then the court can order you to answer the question or decide not to, like an integrity inquiry. The point I make is that might well all be good and proper and appropriate, but I do not believe it is appropriate for a bureaucracy like the AER to have those powers. That is the point I am making.

I know they have the powers, and I know what they are doing them for, but they are beefing them up dramatically and they are adding in extra clauses here that are making this a lot like the crime commission the commonwealth runs. I would bet London to a brick that, if I went and checked the crime commission act with some of the clauses in here, they would be very similar. Subclause (6) provides:

(6) Section 28—after subsection (3) insert:

(3a) A person must not, when appearing under subsection (2)(c), refuse or fail to answer a question that the person is required to answer for the purpose of providing information…

I agree: they should provide the information. But if that information incriminates you, the penalty that would be in place in a criminal proceeding would not be liable because they have compelled the answer. We are beefing up powers the AER already have.

I am not going to die in a ditch over this. I understand it has been agreed nationally, and I have already given the minister my word we will support this, but I do point out the powers we are giving a department of Treasury and Finance are greater than the tax commissioner has. I have been at these meetings, too, when we all agree that the AER should have the power to call for information, but we are talking about people being compelled to give evidence that could incriminate them. There are exclusions for reasonable excuses, but I doubt they grant the protection that we hope they would.

I am not so much seeking an answer from the minister as I am making a statement to the committee that I have grave reservations every time we do this. I have been guilty of it as well. Subsequent parliaments keep on doing this to stamp out poor practice. Rather than going to the core of the problem, we are simply making it easier for investigative bodies to get to the bottom of what it is by removing rights. That is not how we should be legislating.

Again, I understand that this is not something the opposition will stop; I just point out that the AER is not an independent statutory office. The AER, CEO or the board, as talented and as qualified as they are, are not judicial officers. If you read the act, division 3, 'Power to obtain information', the AER have a whole series of powers to get information. Subsection (8) of the body of the act provides:

This section does not require a person to—

(a) provide information that is the subject of legal professional privilege...

The Hon. D.C. van Holst Pellekaan: Sorry, whereabouts is that?

The Hon. A. KOUTSANTONIS: That is in the actual act, not in the amendments. That is already here. These are the protections:

(a) provide information that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet…

So we are protecting ourselves from the act, making sure we are okay. No cabinet documents can be given over, legal professional privilege cannot be waived or deliberations for the commonwealth or state or territory. Then it provides:

(10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.

So we are saying, 'You can't be fired for this, if you speak to us. There's no penalty for you for breaching your employment contract.' Does it mean you cannot be held criminally responsible once you admit what you have done to avoid the sanction that we are putting into the body? I caution the committee if we keep on doing this, whether it is the AER, whether it is ESCOSA, whether it is ICAC, whether it is any other investigative body, if we keep on digging away at the rights of people to remain silent when being asked questions. I will just leave that as a statement to the committee. I do not expect the minister to answer. He can if he would like to; it is up to him. I will not be voting for this but I am not voting against it.

The Hon. D.C. VAN HOLST PELLEKAAN: I have a short response. I certainly understand where the member for West Torrens is coming from. I point out, as he did, that that particular section 28(3)(a) finishes by saying—and I will paraphrase this—a person must answer, a person must comply 'unless the person has a reasonable excuse'. I am advised that the assessment of the reasonable excuse is not just up to the AER or up to the person. The assessment of the reasonable excuse can be determined by a court. So there is some meaning there, but I take on board the comments that the member for West Torrens has made.

The Hon. A. KOUTSANTONIS: It is an expense to go to court to seek that protection. Telling a public servant 'I refuse to answer that question' could impose great costs for an individual who refuses to answer, but I accept what you are saying.

Clause passed.

Clause 11.

The Hon. A. KOUTSANTONIS: Clause 11 amends section 28R, a pretty robust clause that is already in the act, which provides:

28R—Providing to AER false and misleading information

A person must not, in purported compliance with a regulatory information…

All we are doing is changing the penalties, moving it from $2,000 to $6,300 and $10,000 to $31,000. The question I ask of the minister is—and I could never really get the right answer to this from other debates we have had on different matters—what is the definition of 'false and misleading'? Is it about intent and being deliberate about it? What happens if an employee hands over information that they have been given by their superiors and it turns out to be false and misleading? Who is held to account for that? Is it the individual or the body corporate?

The Hon. D.C. VAN HOLST PELLEKAAN: I will get a full answer to that question for the member for West Torrens between the houses.

Clause passed.

Clause 12 passed.

Progress reported; committee to sit again.

At 17:57 the house adjourned until Tuesday 22 September 2020 at 11:00.