Bills

Statutes Amendment (Local Government Review) Bill

Committee Stage

In committee (resumed on motion).

Clause 39.

The Hon. V.A. CHAPMAN: I move:

Amendment No 24 [DepPrem–1]—

Page 30, after line 20 [clause 39, inserted section 75G]—After subsection (3) insert:

(3a) However, a reasonable direction under subsection (1)(b) that a member not attend a meeting of a council may only be given if there are no other reasonable directions considered appropriate in the circumstances to ensure the health and safety of the affected person.

(3b) If a reasonable direction under subsection (1)(b) that a member not attend a meeting of a council is given, the responsible person must ensure that a complaint relating to the matter is referred to the Behavioural Standards Panel.

These proposed amendments to new section 75G have been included following further consultation with the LGA. It is proposed that a reasonable direction not to attend a council meeting may only be given if there is no other reasonable direction considered appropriate to ensure the health and safety of the person affected. If such a direction is given, the responsible person must ensure that a complaint is referred to the Behavioural Standards Panel.

This will ensure that the matter is considered and dealt with by the panel and the inability of the member to not attend the meeting does not continue unreasonably or indefinitely. If the panel considers that the behaviour was sufficiently serious and warrants such a sanction, the panel may suspend the member from office for a maximum period of three months.

Ms STINSON: I have some questions about the clause in the bill and also in relation to this particular amendment, No. 24. I draw the Attorney's attention to the particular line 'no other reasonable directions considered appropriate', which is in subsection (3a) of the amendment. I wonder whether the Attorney could shed some light on how this would be interpreted in a situation, for example, where you have a staff member, who is the aggrieved party, who may be required to be at council meetings as a notetaker or an official who assists a CE.

Would it be determined that it was an appropriate measure to remove that staff member from the council meeting or would the interpretation be that 'no other reasonable directions' means that the council member would essentially be ejected from the meeting first? I am happy to rephrase that if the Attorney is unclear what my point is. Do you get what I mean?

The Hon. V.A. CHAPMAN: Yes. Perhaps I will just remind the member first that these relate to exclusion directions of the elected member, not the staff member. The competing interests here are that the council member, duly elected by either his ward or via another system through the election, is on council and needs to be present to have the opportunity to espouse the views of his cohort, I suppose, in the sense of representing his district. Against that is the management via a panel process of having some mechanism to ensure certain behaviour and conduct.

What is being considered here is not whether a staff member may or may not be excluded; it is all about the elected member. What is to be clear in this initiative is that only the exclusion is moved to in the event that there is no other reasonable option. How the council manages the proximity, undertaking of duties that overlap with staff or any other matter, is really another issue altogether.

Excluding an elected member from undertaking his or her duties as an elected member by excluding them from council meetings is obviously a serious imposition. It is clear from this material that it is to be the last resort. It is a bit like saying that children should not go to prison unless it is the absolute last resort. I hope that makes it clearer.

Ms STINSON: It does make it clearer. I might just clarify my understanding of what the Attorney has just said. I suppose what I am getting at is if you have a staff member who, for example, has been the subject of taunts or threats from a council member and that staff member does not want to be at a meeting that the councillor is at, would it be the absolute last resort to remove the council member, or would it be seen as a reasonable measure to instead remove the staff member, even though they might not have done anything wrong and may feel indeed aggrieved that they are the one who has to leave the meeting? Might that be necessary in order to fulfil the objective here, that it is the last possible resort before removing a councillor?

The Hon. V.A. CHAPMAN: It is hard to make a comment on any particular example, and there are situations unquestionably (I am aware of them and I am sure the member would be aware of them) where there is tension between a member or more members of staff and a council-elected member. I think what the member is saying here is how do you protect a well-behaved staff member undertaking his or her reasonable duties where they might need to be excluded from an area themselves just to enable the elected council member to undertake his or her duties. I do not see that as the actual tension.

I think what is clear here is not the staff member. The staff member in any scenario may say, 'I don't want to be around this elected member. I don't want to have to correspond with this elected member. I don't want to have to speak to them or be in his or her presence. I would like to be relieved of that, so please don't allocate me duties that involve dealing with him or her. I would like all communications to be in writing or emailed.'

This is the type of scenario that may need to be looked at by a council as to how they best manage a situation, and that includes whether they are a staff member or another elected member. Anyone who is working in the precincts of the council and who comes up with some tension against the person who is allegedly acting inappropriately needs to be considered here, not just people who are on staff. What is here, though, is a process of review, assessment and discipline as such that relates to the elected member.

What we are saying here is that the exclusion option is to be considered when there is no other reasonable direction that would be appropriate. Another issue is the question of how you support and protect people who might be in the precinct of the council. It might be a member of the public who might be offended or distressed by the behaviour of or statements made by the person who is allegedly acting inappropriately.

Of course, councils need to be able to ensure that their staff are safe and that all other elected members can go about their business as elected members and, indeed, members of the public or clients of the council or contractors undertaking duties for the council. These are very busy places, as I am sure the member appreciates, with everyone from the local JP coming in to do voluntary service across to very significant business enterprises in which a lot of people are involved. I cannot really answer in relation to limited information on scenarios, but I just mention that this is all about elected member behaviour and how it is managed.

Amendment carried.

Mr DULUK: Attorney, I have a couple of questions in regard to clause 39 and directions of work, health and safety protocols. In new section 75G(1)(b) and 75G(3), the expression 'reasonable direction' is used. In the Work Health and Safety Act, the expression used is 'reasonable instruction'. What inference should be drawn from the use of these different expressions?

The Hon. V.A. CHAPMAN: None.

Ms STINSON: Can the Attorney describe why the provisions in clause 39 are even needed? It has been put to me that this is covered by the Work Health and Safety Act and also other existing legislation that surrounds workers' rights and that in fact this whole section is really unnecessary or duplicates the current legislation. If this is implemented as it is put, and there is a conflict with the Work Health and Safety Act, or any other act that might govern workers' rights, what takes precedence?

The Hon. V.A. CHAPMAN: Usually they both apply, but I think it is important to appreciate here that the Ombudsman has considered this issue. He sees a weakness or perhaps a gap in relation to identifying the application of the Local Government Act and the Work Health and Safety Act. If I could give you an example very close to home, Burnside council is in my electorate and of course they do a wonderful job, but they have had their challenges. One of them related to the very issue of the alleged conduct of an elected member and the impact that was having on a member and/or members of the salaried staff.

I recall my predecessor, the Hon. John Rau, who was then the minister covering industrial relations, indicating that he would ask SafeWork SA to have a look at that issue. About eight or nine months later nothing had happened, and I certainly had submissions being put to me by the council as if to say, 'Well, what are we going to do?' The reality is that it exposed the weakness, I suggest—but the Ombudsman's description was more a 'gap'—in these pieces of legislation. So even a former minister sent it off along one tunnel and it seemed to hit a brick wall. Meanwhile, people back in council land have to still deal with this difficult situation.

The Ombudsman was strongly of the view that this needed to be addressed and that protection needed to be recorded in this way in the act. That is why it is there. I think it is regrettable because, on the face of the allegations, whether or not they are substantiated, there was an instance when someone, for whatever reason, felt themselves quite under pressure—that is a kind way of describing it I think—in relation to their workplace. If we start from the premise that everyone is entitled to be protected within their workplace against misconduct of others and that there is an obligation in relation to the employer—in this case we are talking about councils—to make sure their staff are secure, protected and safe, then we need to fix it, and that is precisely why this is here.

Ms STINSON: I hope the Attorney will forgive me for this; obviously I am fairly new to the portfolio. Would she mind just elaborating on the exact deficiency that the Ombudsman identified in the Burnside case? Was it a deficiency in the Work Health and Safety Act? Could you just describe what the problem was there?

The Hon. V.A. CHAPMAN: I am not going to go into more detail in relation to that case.

Ms Stinson: In relation to the Ombudsman.

The Hon. V.A. CHAPMAN: In the Ombudsman's recommendation, what was clear was it was not seen as within the remit of SafeWork SA for them to investigate and deal with that matter, so we have to deal with it here. Alternatively, I suppose we could open the Work Health and Safety Act, but the recommendations here are that we address it here because this is an issue in relation to the council. We are setting up an alternative process, a bit like we did under the Equal Opportunity Act—not us particularly but the parliament did—to give an alternative process to deal with the management and mediation of sexual harassment allegations so you can within a certain area identify how that is to be dealt with.

I have to say that I think there is an appetite for trying to reach that balance, but because the local government themselves were looking at how they might—this is why it has developed over two years—manage behaviour and conduct of their elected members to obviously deal with other casualties, which include other staff and so on, they have really come forward with this program. When the Ombudsman had a look at it he said, 'This is an area where the gap needs to be filled.' We accept that advice and that is why it is in the bill.

Clause as amended passed.

Clause 40.

The Hon. V.A. CHAPMAN: I move:

Amendment No 25 [DepPrem–1]—

Page 30, after line 28—Insert:

(1a) Section 76(3)—after paragraph (b) insert:

(ba) the ratio of members to ratepayers;

Amendment No 26 [DepPrem–1]—

Page 30, lines 30 to 32 [clause 40(3)]—Delete subclause (3) and substitute:

(3) Section 76(13)—delete 'Minister from time to time after consultation with the President of the LGA and the President of the Tribunal' and substitute:

President of the Tribunal after consultation with the LGA

Amendment No 27 [DepPrem–1]—

Page 30, after line 32—Insert:

(4) Section 76—after subsection (13) insert:

(13a) The LGA may recover the reasonable costs incurred by the Remuneration Tribunal in making a determination under this section as a debt from the councils to which the determination relates.

Amendment No. 25 inserts a new paragraph to ensure that the Remuneration Tribunal of SA can consider the ratio of elected members to ratepayers when determining elected member allowances. While the intent of the broader reform is to set a maximum of 12 members to ensure that all councils have an elected member body that can operate as effectively as possible, concerns have been raised that this will make demands on members of very large councils. It is therefore proposed that this can be recognised in the tribunal's determination. So, when they are looking at those issues, they can obviously take that into account.

As to amendment No. 26, this substitution supports the system by which the Remuneration Tribunal makes a determination on council members' allowances, which is well established. The minister's role has therefore become redundant and adds little to that process. The amendment recognises this and removes this unnecessary step. However, the amendment also clarifies that the tribunal must consult with the LGA on the proposed costs of the determination.

Finally, the insertion outlined in amendment No. 27 allows the LGA to recover costs from the councils as a debt to cover the reasonable costs of the Remuneration Tribunal in making its determination. It responds to concerns raised by the LGA that it would be unable to include a contribution from a council that is not a member of the association but still benefits from the tribunal's work.

Just to remind members listening to this debate, the process in relation to the costs incurred to go to the tribunal will be dealt with via the LGA, and the costs for the ESCOSA process will also be managed through the LGA. It is not uncommon for associations or unions to have that responsibility. I will qualify that by saying that it will be directly paid for by the councils, but ESCOSA are maintaining a role in relation to how that will be distributed.

So there will be direct payment from the councils. The LGA are going to have an ongoing role in how that is structured. I have not asked for it. I do not want to be involved in that. The LGA are going to continue to maintain a role in relation to that, and we welcome that. I think that is important on behalf of the members, and they provide a number of other central services, if I can describe it as that.

Ms STINSON: My questions go to amendment No. 27. What costs are associated with the Remuneration Tribunal setting allowances and salaries? Is there some comparable example that the Attorney can provide where the tribunal provides a similar service to some other body that might inform us what the likely costs are, or has the Attorney's office done its own discrete work in relation to this on what the precise costs are going to be, which I understand are essentially billed to the LGA and then the LGA passes it on to councils? Can you describe exactly what those costs are? I understand that there is an assessment by the tribunal in relation to CEO salaries and allowances.

The Hon. V.A. Chapman: That is separate.

Ms STINSON: That is a separate thing. So there is one for the CEOs, but then there is also a separate one for the councillors. Are the costs the same for the CEOs' assessment by the tribunal and the councillors' assessment, or is there a different pricing regime? Really, I am after what the specific figures are and what the specific costs are that are going to be passed on to the LGA under this.

The Hon. V.A. CHAPMAN: Councils pick up the cost of the Remuneration Tribunal already in relation to the setting of allowances for its elected members. That has been going on for years.

Ms Stinson: For elected members?

The Hon. V.A. CHAPMAN: For the elected members. These are the allowances that they get, and that is what we are talking about here in this clause. They are set by the tribunal, and I am advised that it is regularly about $40,000 as a cost when they do that review. I am not sure how that gets distributed between the councils, but the LGA pays it and presumably they extract it from them in some way.

That has been going on for years. There is actually nothing new to that. The new part of this bill is that the CEO salary and entitlements will be subject to the Remuneration Tribunal. That is a new cost, but it is offset. It has not been presented to me from either an individual council or the LGA as to what costs they would save in their own legal advice and negotiations to deal with individual CEOs for whatever different jurisdictions they are in.

Size of council and size of budget are things that I am assuming would be relevant to those types of determinations, just like chief executives of major government departments. That is a new exercise, and I do not have any details of what that is going to cost or what they are going to save, and they are not sure. One of the biggest councils in the state has come to see me, and they were not able to give me any details either. They accepted that there would be offsets, but they are yet to see what they are.

They want this. Let's be very clear: one of the vexed issues for councils, especially for the smaller councils, has always been being able to select and negotiate chief executive entitlements and salaries. In a small community, in a small group, it is probably even harder because you do not often have independent expertise within the council to be able to deal with that. It is something, certainly in my time in this parliament, that various councils have raised with me as one of the single biggest difficulties in being able to deal with it. This is a process where they have already had experience with the Remuneration Tribunal. They see this as independent and we are happy to support it through this legislation.

Ms STINSON: To follow up on that, the Attorney said that at the moment councils are already paying this, and that is about $40,000. I want to clarify two things: (1) is that $40,000 for each assessment that the tribunal makes, and (2) does that mean that we can expect a figure of around $40,000 for each assessment of a CEO salary package?

The Hon. V.A. CHAPMAN: I have no idea what the figures will be in relation to the costs of preparing a submission and putting that to the Remuneration Tribunal about what their CEO should or should not get, or dealing with any rebuttal of whatever else is presented. Obviously, the Remuneration Tribunal does all sorts of assessments. As the member would know, they set allowances for members of parliament and they can set salaries for judges. There are lots of different bodies that utilise the service; it is an independent assessing body.

I am not sure that even the councils understand exactly what savings they will have from this, but it is such a burden on their capacity and desire to have to deal with this issue with or without the support of their representative body—namely, the LGA. It is a difficult issue. Perhaps selecting someone who is suitable for council is one thing, but trying to negotiate what the terms of the engagement are and the employment income, etc., is a hard issue.

We are not interfering with that; we are simply ceding to a sensible development of utilising a tribunal with which councils are already familiar. If they thought this was an agency that they did not like or did not want, I am sure we would have heard about that two years ago when they came out with another option, but this is what they want. As to the $40,000, my understanding is that when the tribunal does an assessment in relation to allowances for councillors—and, again, I am not sure but I am assuming that it would be in relation to the size of the council, the allowances for travel, if they have to drive long distances to council meetings, etc.—all those things will be taken into account.

Quite possibly, they have different structures for rural as distinct from the peri-urban or urban councillors, or they may have some allowances if they are a council member who is outside the region. I think Kangaroo Island has a council member who is an off-island representative and that person lives somewhere north of the state, so obviously there are travel expenses. There would be different idiosyncrasies around each council. That is a venue for decision-making they have utilised in the past and they want it for this, and we are happy to support it, and they will pay.

Ms STINSON: I want to clarify a few things. This $40,000 the councils currently pay for assessments done by the tribunal, are they done en bloc, as in there is one decision that the tribunal comes up with and that applies to all councils and all elected members? Or is it the case, for example, that individual councils seek a ruling and they pay $40,000 every time there is a ruling on any of the, say, 68 councils?

The Hon. V.A. CHAPMAN: The $40,000 is one block fee the LGA pays every four years or when the tribunal does it, which I understand is every four years. The structure within that, whether it sets different parameters for councils within that block assessment, I have not reviewed myself. I would expect it probably does because of the reasons I have outlined. That is the way they operate it, and I do not propose to interfere with that. It seems to have been working for a very long time, and they are happy with that service, so happy that they want the CEOs' assessment to be done as well.

Amendments carried; clause as amended passed.

Clause 41 passed.

New clause 41A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 28 [DepPrem–1]—

Page 30, after line 34—Insert:

41A—Repeal of section 78A

Section 78A—delete the section

This amendment seeks to insert reference to the repealing of section 78A and deleting the section. No regulations to establish a scheme of council members to directly obtain legal advice to assist members in performing or discharging their official functions and duties have been made under this section. Council may, and as I understand it generally do, deal with this through their own policies.

New clause inserted.

Clause 42 passed.

Clause 43.

The Hon. V.A. CHAPMAN: I move:

Amendment No 29 [DepPrem–1]—

Page 31, line 14 [clause 43(1), inserted subsection (2b)]—Delete 'the chief executive officer of'

Amendment No 30 [DepPrem–1]—

Page 31, line 16 [clause 43(1), inserted subsection (2b)]—Delete 'chief executive officer' and substitute:

'council'

Amendment No 31 [DepPrem–1]—

Page 31, line 18 [clause 43(1), inserted subsection (2c)]—Delete 'a chief executive officer of'

Amendment No 32 [DepPrem–1]—

Page 31, line 24 [clause 43(1), inserted subsection (2d)]—After 'section 76' insert:

, or reimbursement of expenses, or any other facility, service or form of support, that the member would otherwise be entitled to under this Act,

Amendment No 33 [DepPrem–1]—

Page 31, line 28 [clause 43(1), inserted subsection (2e)]—Delete 'chief executive officer' and substitute:

'council'

Amendment No 34 [DepPrem–1]—

Page 31, lines 29 and 30 [clause 43(1), inserted subsection (2e)]—Delete 'chief executive officer' and substitute:

'council'

Amendment No 35 [DepPrem–1]—

Page 31, lines 33 and 34 [clause 43(1), inserted subsection (2f)]—Delete 'chief executive officer of the council may' and substitute:

'council must'

I advise the committee that these amendments relate to the suspension of council members for non-completion of mandatory training. Amendments Nos 29, 30, 33, 34 and 35 have been made in response to concerns from the council chief executive officers that a role for them in suspending members for noncompliance of mandatory training is not appropriate. The amendments will make it the council's responsibility to implement a suspension on those grounds.

Amendment No. 32 clarifies that a council member cannot receive reimbursements or expenses or any other facility or support that the member would otherwise be entitled to under the act by virtue of their office for the period of the suspension. This would be like our Clerk of the House of Assembly being the person who is authorised to deal with us and suspend us, as distinct from us as a parliament dealing with it. That places that on its proper footing, and I seek that they be accepted en bloc.

Ms STINSON: I simply rise on this clause to indicate that Labor had received representations from CEOs and from the LGA in relation to the amendments that have now been filed by the Attorney-General. This is something to which we undertook to put forward an amendment as a Labor team, but I am pleased that the Attorney has put these forward and we will be supporting them.

Amendments carried; clause as amended passed.

Clause 44.

The Hon. V.A. CHAPMAN: I move:

Amendment No 36 [DepPrem–1]—

Page 32, lines 18 to 21 [clause 44, inserted section 80B(1)]—Delete subsection (1) and substitute:

(1) If—

(a) a member of a council is subject to a relevant interim intervention order where the person protected by the order is another member of the council, the council may suspend the member from the office of member of the council if the council considers it appropriate to do so; or

(b) a member of a council is subject to a relevant interim intervention order where the person protected by the order is an employee of the council, the chief executive officer of the council may suspend the member from the office of member of the council if the chief executive officer considers it appropriate to do so.

Amendment No 37 [DepPrem–1]—

Page 32, after line 23 [clause 44, inserted section 80B]—After subsection (2) insert:

(2a) A council—

(a) must revoke a suspension under subsection (1)(a) if the relevant interim intervention order is revoked; and

(b) may revoke a suspension under subsection (1)(a) if the council considers it appropriate to do so.

Amendment No 38 [DepPrem–1]—

Page 32, line 25 [clause 44, inserted section 80B(3)(a)]—Delete 'subsection (1)' and substitute:

'subsection (1)(b)'

Amendment No 39 [DepPrem–1]—

Page 32, line 27 [clause 44, inserted section 80B(3)(b)]—Delete 'subsection (1)' and substitute:

'subsection (1)(b)'

Amendment No 40 [DepPrem–1]—

Page 32, line 34 [clause 44, inserted section 80B(5)]—After 'section 76' insert:

, or reimbursement of expenses, or any other facility, service or form of support, that the member would otherwise be entitled to under this Act,

Amendment No 41 [DepPrem–1]—

Page 33, lines 2 and 3 [clause 44, inserted section 80B(8)]—Delete 'chief executive officer of the council may' and substitute:

'council must'

Amendment No 42 [DepPrem–1]—

Page 33, after line 9 [clause 44, inserted section 80B(10)]—Insert:

employee of a council includes—

(a) a consultant engaged by the council; and

(b) a person working for the council on a temporary basis;

There needs to be some explanation of these amendments, but I think when I read it out it will be clear that it is reasonable to receive this en bloc.

Amendment No. 36 commences with responding to a concern of the chief executive officers to suspend a council member where the council is subject to a relevant interim intervention order. In response to these concerns, the amendment proposes that the principal member will implement the suspension where the protected person is another council member. However, the CEO will be the relevant decision-maker where the protected person is an employee. This reflects the obligation and role of the CEOs to protect the health and safety of the council employees.

Amendment No. 37 clarifies that the councils must revoke the suspension of a member if the relevant interim intervention order has been revoked and may do so if considered appropriate—for example, if the member and the protected person cease to work in any proximity to each other. Amendments Nos 38 and 39 are purely technical. Amendment No. 40 is to clarify that a council member cannot receive reimbursement of expenses while suspended.

Finally, the substitution of 'council must' do certain things instead of the 'chief executive officer may' in amendment No. 41 relates to the proposal in the bill that an application may be made to SACAT where a member has been suspended for a prescribed period for the disqualification of that member. The intention of this clause is to ensure that councils do not have longstanding vacancies on their council.

However, concerns were raised that it was not appropriate for a council's chief executive to take this action, so this amendment changes the decision-maker on the matter from the CEO to the council. The amendment also makes the application to SACAT non-discretionary if the suspension continues for more than the prescribed period. So it is a separation of roles. CEOs are responsible for the staff. The councils themselves have to deal with the elected members. I think that puts it on a correct footing.

Ms STINSON: I am particularly commenting in relation to amendment No. 36. My understanding of this is that, from what was there previously, this essentially splits it into two prongs, where you have a member on member issue or a member on staff issue.

I have received quite a bit of feedback from CEOs in relation to this, both in its previous form and in its amended form as the Attorney has put. While the feedback I have had is that this is an improvement, concerns have still been expressed to me about the position that it puts a chief executive officer in—and I am talking about paragraph (b) here—where, in the case of a dispute between an elected member and a staff member, the CEO is still in a position where they may suspend the member from the office of a member of the council if the chief executive officer considers it appropriate to do so.

The concerns that have been expressed to me by CEOs is that they do not want that level of discretion. So my question is: has the Attorney considered any other wording—for example, rather than saying 'may suspend', saying 'must suspend' so that the CEO is not in a position where they have to apply their discretion? They are simply carrying out what the legislation tells them they must do as opposed to what they may do.

The Hon. V.A. CHAPMAN: I have not specifically asked to do that, but I would not do it. I think it is very clear. What we are talking about here is in the event of an interim intervention order to be made, so the police are already involved. A threshold has to be achieved to be able to deal with this matter and, again, to put a mandatory imposition on this is not appropriate. Chief executive officers quite rightly need to be relieved of the responsibility of dealing with elected members, but they have an obligation as part of their duty to deal with the safety and protection of their own staff.

Again, if I were to use the Clerk of the House as an example, he or she has the responsibility as an employed person of the parliament to undertake certain duties, but the conduct of members of parliament and how that is dealt with is a matter for this house, not the chief executive, not the Clerk. I do not suggest it does. I think you are misreading it.

Ms STINSON: I just want to clarify that I have the right understanding of this section. Paragraph (b) provides:

(b) a member of a council is subject to a relevant interim intervention order where the person protected by the order is an employee of the council—

so we are talking about an elected member versus an employee—

the chief executive officer of the council may suspend the member—

so that is saying that the chief executive themselves has to make an order or can choose to make an order to suspend the member. There you have the chief executive handing out discipline to the person who essentially decides whether he is hired or not. To me, that flies in the face of what the Attorney was just saying, which are excellent points.

The Hon. V.A. CHAPMAN: What we are talking about here is a situation where an intervention order is already in place. The chief executive has responsibility to deal with the safety of their staff, so there has already been a threshold met. Someone is to cease or desist from being in a certain place, communicating with another party, being in the presence of another party or whatever the terms and conditions of the interim order are. In those circumstances, where the police have already made that assessment, there has been a judgement externally. Really, what is here is to enable that chief executive officer, if they need to, to impose that on the member. It is not designed—

Ms Stinson: But why is that not mandatory?

The Hon. V.A. CHAPMAN: No, it does not need to be mandatory. The chief executive—

Ms Stinson: Why not?

The Hon. V.A. CHAPMAN: Well, because the chief executive may decide that it is not appropriate. It may be that they are not in the same precinct. It may not be necessary. The appropriate circumstance, it would seem to me, in those situations would be, if it is necessary, to go back and deal with the interim intervention order process, whether that be expanded or dealt with.

On the one hand, CEOs do not want to be involved in assessing and dealing with the elected members' management. There are courts to deal with that, there is a process to deal with that, there is a council to deal with that. By the same token, they do need to have some capacity to act if it is necessary to protect their own staff. That is what is acknowledged here.

Ms STINSON: Can I just seek clarification from the Chair? Are we looking at amendment No. 41 in this group as well, or are we just going to amendment No. 40 at this stage?

The CHAIR: No, we are dealing with amendments Nos 36 through to 42.

Ms STINSON: Thank you, sir. I have one question in relation to amendment No. 42. This is the one that defines an employee as:

(a) a consultant engaged by the council; and

(b) a person working for the council on a temporary basis;

Does a consultant include any sort of subcontractor or anyone the council may hire to perform a duty? If that is not the case, can the Attorney give some indication of what 'consultant' refers to?

The Hon. V.A. CHAPMAN: The current act, the Local Government Act 1999, makes provision in the interpretation clause that an employee is defined as 'employee of a council includes a person working for the council on a temporary basis'. There is no mention of consultants. For the purpose of this exercise, we are specifically adding in consultants. They are not subcontractors; they are consultants.

Ms STINSON: So all those other classes are already catered for elsewhere in the bill?

The Hon. V.A. CHAPMAN: That is the definition I just read out.

Amendments carried; clause as amended passed.

Clause 45.

Ms STINSON: I am simply asking for an explanation as to why this measure is being deleted. It seems like a perfectly decent measure for transparency. I wonder why it is either not needed or not desired anymore.

The Hon. V.A. CHAPMAN: The 'facsimile transmission', you might appreciate, is going because, of course, we dealt with those in the 1980s. As to the second one, in relation to all of those, that material is on the website, so we do not need to have that clause anymore.

Clause passed.

Clause 46.

Ms STINSON: What I have in front of me is regarding the publication of notices of meetings being retained by the chief executive, the chief executive having to provide notice under certain sections. It looks to me like it is the right thing.

The Hon. V.A. CHAPMAN: They are not quite the same question, but in relation to that question I will indicate that, as you will see, the provision there is to have all that on the website.

Clause passed.

Clauses 47 to 50 passed.

Clause 51.

The Hon. V.A. CHAPMAN: I move:

Amendment No 43 [DepPrem–1]—

Page 35, lines 9 and 10 [clause 51(1)]—Delete subclause (1)

This is a technical amendment that better reflects the intention of proposed section 90A regarding council information sessions and briefings.

Amendment carried; clause as amended passed.

Clause 52.

The Hon. V.A. CHAPMAN: I move:

Amendment No 44 [DepPrem–1]—

Page 35, line 21 [clause 52, inserted section 90A(1)]—Delete '1 or more members' and substitute:

'more than 1 member'

Amendment No 45 [DepPrem–1]—

Page 35, line 22 [clause 52, inserted section 90A(1)]—Delete 'are' and substitute 'is'

These amendments respond to the concerns that meetings between the chief executive officer and a council member, particularly a principal member, would need to be managed as if they were informational briefing sessions under proposed section 90A. The amendment has clarified that information sessions and briefings are meetings to which more than one member has been invited.

Amendments carried; clause as amended passed.

Clause 53.

Ms STINSON: This is a similar question to my earlier question, which is around the removal of printed copies of council committee meetings. Will there be any provision at all for people who maybe do not have internet access and cannot visit websites to be able to go into their council and request a copy of printed materials? This is an issue that is peppered throughout the bill, so I ask the question quite generally. In the places where you are removing the requirement for printed copies of council documents, what provision is being made for people who do not have the internet or the ability to print things themselves?

The Hon. V.A. CHAPMAN: Yes, they can.

Ms STINSON: Is there a fee associated with that?

The Hon. V.A. CHAPMAN: Councils must make those available. That is an obligation on them.

Clause passed.

Clauses 54 to 56 passed.

Clause 57.

The Hon. V.A. CHAPMAN: I move:

Amendment No 46 [DepPrem–1]—

Page 37, before line 9—Insert:

(a1) Section 97(1)(a)(i)—delete 'been guilty of' and substitute 'committed'

Amendment No 47 [DepPrem–1]—

Page 37, line 11 [clause 57(1), inserted subsection (3a)]—After '(a)' insert:

(i),

Amendment No 48 [DepPrem–1]—

Page 37, lines 15 to 21 [clause 57(2), inserted subsection (6), definition of qualified independent person]—Delete the definition of qualified independent person and substitute:

qualified independent person means a person who is—

(a) not a member or employee of the council; and

(b) determined by the council to have appropriate qualifications or experience in human resource management.

Amendment 46 commences as a technical amendment, but 47, more particularly, was requested by the LGA to ensure that qualified independent advice is sought before termination on the grounds of misconduct, along with other reasons for termination that councils must request advice for. Amendment 48 is to make reference to the definition of advice from a qualified independent person consistent with the provisions relating to the appointment and performance review of the CEO.

Amendments carried; clause as amended passed.

Clause 58.

The Hon. V.A. CHAPMAN: I move:

Amendment No 49 [DepPrem–1]—

Page 37, line 34 [clause 58(2), inserted subsection (4a)(b)]—Delete 'independent advice' and substitute:

the advice of a qualified independent person

Amendment No 50 [DepPrem–1]—

Page 37, after line 37—Insert:

(3) Section 98—after subsection (6) insert:

(7) In this section—

qualified independent person means a person who is—

(a) not a member or employee of the council; and

(b) determined by the council to have appropriate qualifications or experience in human resource management.

The amendments are to make reference to the definition of advice from a qualified independent person consistent with the sections relating to the termination and performance review of the CEO. It seems to be the same as the last one.

Amendments carried; clause as amended passed.

Clause 59 passed.

Clause 60.

The Hon. V.A. CHAPMAN: I move:

Amendment No 51 [DepPrem–1]—

Page 39, line 4 [clause 60, inserted section 99A(8)]—Delete 'the President of'

Amendment No 52 [DepPrem–1]—

Page 39, after line 5 [clause 60, inserted section 99A]—After subsection (8) insert:

(8a) The LGA may recover the reasonable costs incurred by the Remuneration Tribunal in making a determination under this section as a debt from the councils to which the determination relates.

The first amendment has been included at the request of the LGA to clarify that the arrangements for costs are made with the LGA as an organisation. More comprehensively, amendment No. 52 allows the LGA to recover costs from councils as a debt to cover the reasonable costs of the Remuneration Tribunal in making its determination. It responds to concerns raised by the LGA that it be unable to include a contribution from council that is not a member of the association but still benefits from the tribunal's work. This is a new initiative as to the minister's role, and determining the reasonable costs will be an important one.

I am advised that, based on interstate experiences, the costs of making the first determination will be slightly higher than the ensuing reviews. On the best advice I have, this may range from an amount in the order of between $100,000 and $200,000 for the first determination and similar to that of the elected members, which I have already indicated is up to $40,000 for reviews. However, the implementation of this initiative will be a matter that will be consulted on with the Remuneration Tribunal and the LGA.

Ms STINSON: I just seek some clarification. The Attorney, as I understand it, just said that the first determination would be $100,000 to $200,000 but that the ensuing amounts will be different. Do you have an idea of what the ensuing amounts will be or how much they will differ from the original amount from the first determination?

The Hon. V.A. CHAPMAN: I do not know that and, as I have said several times during this committee discourse, I do not have that information. The best I could do is provide to the committee what an estimate is in Western Australia. That is what that relies on. I am advised that that may be the order of what would be the initial cost, and that after that we do not know. That is a matter, really, for the LGA to discuss with the Remuneration Tribunal, but again I reiterate that this aspect of the reform is a matter that has been raised by councils. They want this relief, they want the determination by the tribunal, they are paying for it and they are signed up to it.

Ms STINSON: Can the Attorney provide some information about how frequently these tribunal decisions will be handed down in relation to CEOs? I understood from one of the Attorney's earlier answers that it is once every three years for elected members—

The Hon. V.A. Chapman: Four years.

Ms STINSON: Four years, I'm sorry. Will it be a similar schedule or even done at the same time as members? Will it also be en bloc, that is, some sort of determination made maybe with individual gradings for different sizes of councils, for all CEOs, or will councils or regions approach the tribunal for separate decisions around their CEOs?

The Hon. V.A. CHAPMAN: As I understand it, the usual practice—and I assume this comes from Western Australia—is that they set the original assessments, and this will be taking all those idiosyncrasies into account. They will set the bands of entitlement, and then councils can seek their advice in relation to whether someone is moving in or out of those bandwidths. Presumably, if they get a new person in and they change the duties, there might be some reassessment that needs to be looked at, but that will be a matter for them. That is my understanding.

That is something that the tribunal in some way or other will refresh each year. I suppose it is a bit like saying they do for MPs, but I do not know. I have never had to appear before the Remuneration Tribunal, so I cannot answer that.

Ms Stinson: How frequently?

The Hon. V.A. CHAPMAN: I do not know.

Ms Stinson: They are yet to determine that.

The Hon. V.A. CHAPMAN: I am just saying, once the bandwidths are set and then they are reviewing it annually, it is really for the council to say, 'Where is our CEO or proposed CEO going to fit?' and to be able to get guidance as to what they should be paid and what entitlements they should have.

Amendments carried; clause as amended passed.

Clauses 61 and 62 passed.

New clause 62A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 53 [DepPrem–1]—

Page 39, after line 28—Insert:

62A—Amendment of section 107—General principles of human resource management

Section 107(2)—after paragraph (f) insert:

(fa) that employees are protected from sexual harassment by members of the council or other employees and that appropriate processes exist for dealing with complaints of employees relating to sexual harassment; and

Section 107 sets out the general principles of human resource management and provides that a council CEO must ensure that sound principles of human resource management are applied to employment in the administration of the council and must take reasonable steps to ensure that those principles are known to all employees.

New clause 62A proposes an amendment to this section to include a requirement for CEOs to ensure that employees are protected from sexual harassment by members of the council or other employees and that appropriate processes exist for dealing with complaints of employees relating to sexual harassment. This simply clarifies the existing responsibilities for council CEOs to ensure that workplaces are safe from sexual harassment for all council employees. No council employee should have to tolerate sexual harassment and all council employees should have easy recourse to appropriate avenues to address any instances that may occur.

Ms LUETHEN: I wish to make a statement in support of this amendment, which I have been working on with the Attorney-General after receiving quite a bit of feedback from council staff members and ratepayers in my electorate. I agree wholeheartedly with the statement by the Attorney-General that no council employee should have to tolerate sexual harassment and all council employees should have easy recourse to appropriate avenues to address any instances that may occur.

This is essentially because safe workplaces are productive workplaces, which benefits ratepayers and the employees. This amendment makes it abundantly clear that sexual harassment will not be tolerated and will not provide a safe workplace. I thank the Attorney-General for her collaboration to insert this important amendment. I also thank the previous minister, the member for Schubert, for his help to take necessary steps to make these changes to the Local Government Act and the Equal Opportunity Act, which will make councils a safer workplace for all employees.

New clause inserted.

Clauses 63 to 68 passed.

Clause 69.

The Hon. V.A. CHAPMAN: I move:

Amendment No 54 [DepPrem–1]—

Page 40, line 18 [clause 69, inserted subsection (1)(a)]—After 'section 90' insert:

or 91(7)

Amendment No 55 [DepPrem–1]—

Page 40, line 23 [clause 69, inserted subsection (1), penalty provision]—Delete the penalty provision

This is a technical amendment. It clarifies that council employees should treat both documents and discussion that relate to matters discussed in confidence at a council meeting confidentially. I will call this the 'documents and discussion' explanation because it relates to a number of other amendments, and I will be referring to that hereinafter.

Amendments carried; clause as amended passed.

Clauses 70 and 71 passed.

Clause 72.

The Hon. V.A. CHAPMAN: I move:

Amendment No 56 [DepPrem–1]—

Page 40, lines 32 and 33—Delete all of the contents of lines 32 and 33 and substitute:

Section 117, penalty provision—delete the penalty provision

This is a documents and discussion amendment.

Amendment carried; clause as amended passed.

Clause 73.

The Hon. V.A. CHAPMAN: I move:

Amendment No 57 [DepPrem–1]—

Page 40, lines 35 and 36—Delete all of the contents of lines 35 and 36 and substitute:

Section 119(1), penalty provision—delete the penalty provision

I indicate that, following feedback from the Independent Commissioner Against Corruption, it is proposed to remove the penalty provisions that apply to council employee conduct. These matters will be dealt with as integrity provisions which, if breached, can result in the suspension or dismissal of a council employee. Conduct breaches that are serious enough to warrant a criminal penalty will be dealt with under the Criminal Law Consolidation Act 1935, as they are currently. That removes the penalty provision.

Can I indicate to the committee that, on amendment No. 56, I suggested that was a documents and discussion matter, but in fact it is a deletion of a penalty provision for the same reasons I have just outlined for this amendment.

Amendment carried; clause as amended passed.

Clauses 74 and 75 passed.

Clause 76.

The Hon. V.A. CHAPMAN: I move:

Amendment No 58 [DepPrem–1]—

Page 42, lines 18 and 19 [clause 76(1)]—Delete subclause (1) and substitute:

(1) Section 120(1), penalty provision—delete the penalty provision

Amendment No 59 [DepPrem–1]—

Page 42, lines 20 and 21 [clause 76(2)]—Delete subclause (2) and substitute:

(2) Section 120(2), penalty provision—delete the penalty provision

Amendment No 60 [DepPrem–1]—

Page 42, lines 22 and 23 [clause 76(3)]—Delete subclause (3) and substitute:

(3) Section 120(4), penalty provision—delete the penalty provision

These delete the penalty provisions for the reasons I have already explained in the previous two amendments.

Amendments carried; clause as amended passed.

Clause 77.

The Hon. V.A. CHAPMAN: I move:

Amendment No 61 [DepPrem–1]—

Page 43, lines 13 to 15 [clause 77, inserted section 120A(3)]—Delete subsection (3)

Amendment No 62 [DepPrem–1]—

Page 43, lines 18 to 24 [clause 77, inserted section 120A(5)]—Delete subsection (5)

Firstly, this amendment was requested by the Ombudsman and the former ICAC commissioner. As I have previously indicated, Mr Lander has provided advice on this matter. It makes a clearer distinction between the lower level of behavioural standards and provisions that relate to employees' integrity. Of course, councils can continue to take appropriate action if employees breach the behavioural standards that councils have determined should apply to their employees.

Further, with regard to amendment No. 62, this subsection is proposed to be removed following feedback from the LGA and ICAC on the difficulties involved in 68 councils consulting on proposed employee behavioural standards. That will not be necessary and is proposed to be deleted.

Amendments carried; clause as amended passed.

The Hon. V.A. Chapman interjecting:

Ms STINSON: I did, Attorney, but I think you have adequately addressed it, so that will be fine. If I have any further questions before the house, I might send them to your office, if that is okay.

Clause 78.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [DepPrem–3]—

Page 44, after line 2—Insert:

(1a) Section 122—after subsection (1b) insert:

(1c) A council must, once in every prescribed period (which must be not less than a period of 3 years), in accordance with a determination of the designated authority, provide information relating to its long-term financial plan and infrastructure and asset management plan to the designated authority in accordance with subsection (1e).

(1d) For the purposes of subsection (1c), the designated authority may determine a schedule relating to each prescribed period that requires different councils to provide information in different financial years of that period (and the financial year in which a particular council is required to provide information according to the schedule is the relevant financial year for that council).

(1e) A council must, on or before 31 September in the relevant financial year for the council, provide to the designated authority all relevant information on the following matters (the relevant matters) in accordance with guidelines determined by the designated authority (if any):

(a) material amendments made or proposed to be made to the council's long-term financial plan and infrastructure and asset management plan and the council's reasons for those amendments;

(b) revenue sources outlined in the funding plan referred to in subsection (1a)(a);

(c) any other matter prescribed by the regulations.

(1f) Following the provision of information by a council under subsection (1e), the designated authority, on or before 28 February in the relevant financial year for the council—

(a) must provide advice to the council on the appropriateness of the relevant matters in the context of the council's long-term financial plan and infrastructure and asset management plan; and

(b) may, if the designated authority considers it appropriate having regard to the circumstances of a particular council, provide advice in relation to any other aspect of the council's long-term financial plan and infrastructure and asset management plan.

(1g) In providing advice under this section, the designated authority—

(a) must have regard to the following objectives:

(i) the objective of councils maintaining and implementing long-term financial plans and infrastructure and asset management plans;

(ii) the objective of ensuring that the financial contributions proposed to be made by ratepayers under the council's long-term financial plan and infrastructure and asset management plan are appropriate and any material amendments made or proposed to be made to these plans by the council are appropriate; and

(b) may have regard to any information or matter the designated authority considers relevant (whether or not such information or matter falls within the ambit of subsection (1e)).

(1h) A council must ensure that the advice provided by the designated authority under this section, and any response of the council to that advice, is published in its annual business plan (both the draft and adopted annual business plan) in the relevant financial year and each subsequent financial year (until the next relevant financial year for that council).

(1i) For the purposes of the preceding provisions, the designated authority must publish the following:

(a) advice provided to a council under this section;

(b) the schedule determined under subsection (1d);

(c) any guidelines determined under subsection (1e).

(1j) The designated authority may, by written notice, require a council to give the designated authority, within a time and in a manner stated in the notice (which must be reasonable), information in the council's possession that the designated authority reasonably requires for the performance of the designated authority's functions under this section.

(1k) The designated authority may recover from a council (as a debt due from the council) the costs reasonably incurred by the designated authority in performing its functions under this section in relation to the council.

Amendment No 2 [DepPrem–3]—

Page 44, after line 17—Insert:

(7) Section 122—after subsection (8) insert:

(9) In this section—

designated authority means—

(a) if a person or body is prescribed by the regulations for the purposes of this definition—that person or body; or

(b) if a person or body is not prescribed under paragraph (a)—the Essential Services Commission established under the Essential Services Commission Act 2002.

(10) The Minister must consult with the LGA before regulations are made prescribing a person or body as the designated authority.

Amendments carried; clause as amended passed.

Clause 79.

The Hon. V.A. CHAPMAN: I move:

Amendment No 3 [DepPrem–3]—

Page 44, lines 19 to 37 [clause 79(1)]—Delete subclause (1)

Amendment No 4 [DepPrem–3]—

Page 45, lines 1 to 42 [clause 79(3)]—Delete subclause (3)

Amendment No 5 [DepPrem–3]—

Page 46, lines 24 to 38 [clause 79(10)]—Delete subclause (10)

These amendments make significant changes to the rate monitoring scheme included within the bill, following extensive discussion with the LGA in summary. These changes require council to receive advice from a designated authority on their proposed revenue every three years rather than every year, refocus this advice from council's annual business plans to the revenue decisions that they make within the context of the council's 10-year financial plan, remove the minister's ability to direct the designated authority to consider particular matters, remove the minister's ability to direct councils on the basis of a report from the designated authority and clarify that the designated authority is the Essential Services Commission of South Australia unless another body is prescribed.

I also note that most of these amendments are the same as the amendments that were filed on 24 September. The only further amendment is to remove the ability of the designated authority to require councils to provide information as it determines. This has been removed at the request of the sector. I also note that the bill states that the designated authority may recover the cost of providing advice from a relevant council. While these costs will of course depend in large part on what may be passed by this parliament, I am advised that it is likely to be in the order of $20,000 per council. This is a small cost to provide councils and their communities with independent advice and greater confidence in their critical rating decisions.

The public will know their position; the ratepayers will have a very clear indication of that. They will have a tick of approval, or a qualified recommendation or strong opposition to the proposals of the council, and the council will have to deal with their ratepayers accordingly.

Ms STINSON: Although this is spread over quite a few different pieces of paper, it seems apparent that the sum total of all these amendments is effectively that what was proposed by Minister Knoll is essentially being abandoned now by the Attorney-General.

It seems to me that the situation is that we have gone from a piece of legislation last year before the house, which was rate capping, to a piece of legislation that has come forward from former Minister Knoll which is rate monitoring and which had a stick, I suppose, of the minister being able to direct councils after an ESCOSA review of their intended rate rises and financial situation.

Now what we seem to have in this collection of amendments is a complete backdown from that, and essentially the government has abandoned its own bill. This is, of course, a government that went to the last election promising rate capping, but this section has absolutely nothing to do with rate capping.

The Hon. V.A. Chapman interjecting:

The ACTING CHAIR (Mr Cowdrey): Order!

Ms STINSON: There is entirely nothing here at all that has anything to do with rate capping whatsoever. It is curious as well that these amendments—

The ACTING CHAIR (Mr Cowdrey): There is a point of order.

The Hon. V.A. CHAPMAN: I am happy to have a general discussion on this because the member can do that, but what she cannot do is to reflect on a vote of the house. This parliament has dealt with an issue in relation to rate capping. It has been resolved, it has been rejected and now she is going on to discuss the detail relating to a bill, which is not even before us in committee. We are now on to rate monitoring, so she has some—

Ms STINSON: I am more than happy to talk about that because what this represents is the government abandoning the position that it had in front of this parliament only three weeks ago. Three weeks ago you had a system where you were proposing that every year councils had to put forward what their intentions were with rates and what they were going to do with their annual business plans. Now you have a situation where they are only doing that once every three years.

There is advice given back from ESCOSA to the councils, and then there is absolutely no consequence if councils decide to adopt what ESCOSA recommends or not. The provisions that relate to those ministerial powers were in existence only a few weeks ago before this house. Now, through these amendments completely removing them, there are no ministerial intervention powers whatsoever to direct councils on rates and hence there is no rate capping.

This is quite an extraordinary situation, really. This was one of the big things that this government said it was going to do, yet it comes in with a series of quite complicated amendments and does not seem to point out to anyone what they actually do, which I can understand. I can understand that the Attorney would be quite ashamed of completely reversing the position—

The ACTING CHAIR (Mr Cowdrey): Member for Badcoe, did you have a question?

Ms STINSON: I am continuing to address this, sir. I believe that I have unlimited time. Is that not the case?

The ACTING CHAIR (Mr Cowdrey): As long as you are relevant and asking questions.

Ms STINSON: Well, I am. I am talking about the amendment that is before us now.

The ACTING CHAIR (Mr Cowdrey): Continue.

Ms STINSON: Thank you. So what we have here is a situation where the government has said one thing—that it is going to be introducing rate capping—but then put forward a bill on monitoring. Now, three weeks ago, it has tabled these amendments without whispering a word of it to anyone, yet there are more amendments today on exactly the same clause. Rate capping is effectively dead, and the government has to face up to the fact that it has just killed it. It has just killed its own commitment to rate capping in its own amendments.

The ACTING CHAIR (Mr Cowdrey): There is a point of order.

The Hon. V.A. CHAPMAN: The issue is that the rate capping bill is not before us. That was dealt with by this parliament months ago, and the member keeps going back to talk about rate capping being dead. That is a reflection on the vote.

Ms Stinson interjecting:

The ACTING CHAIR (Mr Cowdrey): Member for Badcoe, the Attorney is raising a point of order. She has the right to be heard in silence while she is raising that point of order.

The Hon. V.A. CHAPMAN: Thank you, sir. I ask her to desist in relation to reflecting on the vote in relation to rate capping and get back to the substance of what we are dealing with here, which is the rate monitoring amendments.

Ms STINSON: Actually, I would like to raise a point on that point of order. I simply do not accept that, by simply using the term 'rate capping', that is referring to a bill that has previously been before the house. The term 'rate capping' is used not only generally in the community but also specifically by this government to talk about a range of policies. I just cannot see how the Attorney's point is relevant in any way whatsoever.

The ACTING CHAIR (Mr Cowdrey): I believe that the member can refer generally to rate capping as a policy. In regard to a vote of the house, that did happen in the last session of parliament, therefore it is not relevant to a point of order in that regard potentially. Minister, did you want to raise a point of order?

The Hon. J.A.W. GARDNER: I respect the ruling you have just made, but I do respectfully request that the standing order in relation to relevance be identified. The contribution on the amendment must be directly relevant to the amendment at hand.

The ACTING CHAIR (Mr Cowdrey): I was getting there. The member should refrain from steering away from the contents of the bill at hand. Her remarks need to be directly relevant to the contents of this particular bill rather than necessarily referring to one that has already gone through this house. So if she can direct her remarks—

Ms STINSON: Indeed, sir, my comments are directly relevant. Members may want to—

The ACTING CHAIR (Mr Cowdrey): Member for Badcoe, I am making a ruling. You do not interrupt me while I am doing that. I will give you the call. You can continue.

Ms STINSON: Sir, I am making points in relation to the amendments that are before us right now. Members may want to avail themselves of those amendments because what these do are exactly what I am addressing. What these amendments do is they reverse the position that this government had just three weeks ago. They override the amendments that were brought to this place by minister Knoll, and the effect of them is that this government is abandoning its own bill in relation to rate capping.

In addition to that, what we are seeing in these amendments and others is that this will not actually deliver a lower cost of living for ratepayers. Not only is the stick, if you like, of ministerial intervention over rates being removed but we also have a number of other costs that are going to councils and are then going to be passed on to ratepayers. This idea that this rate monitoring scheme, or rates advice scheme as it seems to be now, is going to deliver any sort of lower costs for ratepayers is absolutely and entirely farcical. If anything, we will see higher costs because we are seeing hundreds of thousands if not millions of dollars being shifted onto councils for the measures that are in this bill.

As legitimate as some of those improvements may be, at the end of the day, the councils are not just going to magic the money from somewhere, they pass it on to ratepayers and ratepayers end up paying it. So what started as a promise of rate capping then putting downward pressure on rates has actually ended up with additional costs in this bill and there is no downward pressure whatsoever on rates.

Certainly, any rate reductions that we see this year will be a lot more to do with the fact that councils right across the state have decided to freeze their rates in reaction to COVID than it will be anything to do with what this government has outlined and certainly it will be nothing to do with these amendments which, as I said, show that the government is simply abandoning its own bill. So my question to the Attorney is this: why on earth are you abandoning your own bill?

The ACTING CHAIR (Mr Cowdrey): Member for Badcoe, you can refer to rate capping as a policy, not as a bill.

The Hon. V.A. CHAPMAN: I think that I have probably given the longest explanation in relation to this clause and listed all the proposed changes. So, far from walking away from that, we have made it very clear that having had discussions with the LGA we have identified not just having a designated authority in this process but that we are going to specifically identify that as ESCOSA. We are getting on with the job.

One of the issues the councils have raised with us was to say, 'We have 68 councils. How can we get all this done in the first year?' We have agreed to stagger that and do that every three years, as I have indicated. I will just remind the member that perhaps she should read the new proposed section 122 which sets out the regime. Subsections (1h) and (1i) make it very clear that the council has to provide all of this information publicly. It has to be in its annual business plan, not every three years—and they are draft and adopted plans—and it must publish the advice given to the council under this section, the schedule determined under subsection (1d) and any guidelines determined under subsection (1e).

Let me make this very clear: what is necessary here is transparency. The government insist on it and the LGA agree that it is to be done and they will employ ESCOSA to do it. It will be on this third arrangement, so that we can get that moving in an orderly fashion, and it will be paid for by the councils. Here is the penalty to them and here is the prize: the advantage of this to the councils, which I was able to point out and I think this is a significant factor here, is that councils get a tick of endorsement. It is like a product having a Heart Foundation tick. It is a positive endorsement of what they are proposing for their ratepayers in their plan and they have to publish it. They get that benefit.

Anyone who wants to complain about it being out of kilter with CPI or anything else can point to this as a tick of endorsement from ESCOSA. They have to publish it, even if it is a bad report and it says, 'This is an extravagant front-end loading of capital programs that is an unacceptable impost on ratepayers.' That has to go online as well, so they have to take the good with the bad. This is the benefit here of having an independent assessor. As I have said to them, I do not need to direct them to do anything.

Actually, the prize or punishment, having settled on ESCOSA—and we have had that discussion—is going to be in the results they get from ESCOSA and the publication of the good or the bad. It will be a helpful tool in relation to their education to their own electorate or their own ratepayer base if it gets that tick of endorsement. They are going to have a lot of explaining to do if they do not, and that produces a transparency like we have never seen before in relation to local government.

I think it will aid and support them to be able to have responsible management of their funds, careful planning and a level of accountability to their rate base that we have not seen before. Having said all that, I have been very impressed with the overwhelming number of councils during COVID who have, of their own initiative, either frozen, held back or minimised any rate increase and, in addition to that, have offered a whole lot of other benefits to their ratepayers.

In a meeting I had with the Premier, the head of the LGA, Mr Telfer, and multiple councils online, a number of the councils outlined initiatives they had introduced to help their own people. Fantastic ideas came through on that and I utterly commend them for that. I think the parliament should have confidence that councils can do the right thing when they need to. They can pull in the belt when it is necessary, they can provide necessary support for their ratepayers when the call comes and they can take it on the chin if an independent assessor says, 'This is not good enough.'

That is the discipline introduced into this process under the monitoring scheme, which I am very proud to say that the LGA, on behalf of councils, have agreed to. They recognise that some of their members are going to be embarrassed if they do get an adverse response from ESCOSA, bearing in mind that there are all the auditing processes that are going on, of course, which are initiatives in this reform as well.

Far from accepting the member's critique of the abandonment of rate capping, which is not even before us, we have been through this in detail. We have settled on ESCOSA and the terms of that and the terms of publication are here. There are new regimes that go with this and I have made it very clear that there are a number of ways in which a minister for local government can bring councils to account. I do not ever want to have to do that.

I want them to have this discipline. I want them to have this obligation. I want them to have the protection and support in selling their messages to ratepayers if they present a sensible proposal, and I want them to be exposed to the risk of outcry from their own base if they do not do that. They will be accountable, and there will be no more concealment of this. It will be on show for all to see.

Ms STINSON: The minister is certainly accurate in the remarks she made at the beginning of that statement that this will force councils to provide volumes and volumes of information. That is essentially red tape. It is cost. Someone has to put all that material together and provide it to ESCOSA. That would be fine, of course, if the end result of that was downward pressure on rates, if there was some sort of rate-capping scheme, if there was a stick in the form of an incentive for them to reduce their rates, otherwise the minister would have the power to intervene and direct them on their rates.

That would be fine. They would be putting in all that effort and there would be a demonstrable outcome for ratepayers. Instead, what we have here is a whole lot of work that these councils have to do, a whole lot of work that ESCOSA has to do, a whole lot of expense—hundreds of thousands of dollars—for each of these assessments to be done for 68 councils, which councils themselves will then pass on to ratepayers. What is the end result of it?

The Hon. V.A. Chapman: Transparency.

Ms STINSON: The Attorney says 'transparency'. In the briefings in relation to this, when I saw that the ministerial direction had been removed, I asked that question: what is the stick? What is the thing that actually makes the councils reduce their rates? What is the thing that puts downward pressure on rates? Do you know what the response was? The response was, 'People can go to an election and they can vote these people out if they don't like the fact that they increased the rates even though ESCOSA may have told them not to.' Well, news flash! That is the system we already have: if people do not like the rate rises that their council put forward at the local government elections, they get to vote out those councillors.

These measures do not really achieve anything except additional cost and additional burden on councils. With the removal of the stick, of ministerial direction, of the minister being able to intervene and say, 'No, council, you've done the wrong thing. ESCOSA has found that your rates are too high. They are unjustifiable. I'm going to step in and direct you what to do,' the council can just put two fingers up and say, 'We don't care what you say, ESCOSA.'

Of course, through this system the once every three year determination of ESCOSA may not in fact have anything to do with rates. It may be the general financial position of the council, what sort of debt they have or what their major infrastructure projects are over the next 10 years in their financial plan. That information will be disclosed each year in the materials that councils use to consult with their communities about their rate rises—absolutely.

I cannot speak for all 68 councils, but well prior to when I was a member of parliament I was involved personally with some of these budget review processes that councils have run, including the City of Charles Sturt and the City of Unley. I can tell you that they do provide quite a lot of information about their financial predicament, about what they want to invest in, about the debt they are carrying and a raft of other indicators that are already available to people. So how these measures provide any more information to your day-to-day ratepayer, who may go along to one of these consultation processes once a year with their local council—and so they should get involved with what is happening in their local council—and how this assists is a complete and utter mystery.

At the end of the day, what is being put forward here is a whole lot of work, a whole lot of expense and no downward pressure on rates. The most puzzling thing about this, of course, is that this bill was put before the house in June. Labor went off and consulted very thoroughly, and I thank my colleague the member for Light, who did some absolutely comprehensive work on our side to go through these hundreds of amendments one by one with stakeholders to see if we could find a way to support this.

You know what? We reached a position in the Labor team, in our shadow cabinet, in our caucus, that we were willing to give support to this bill, to give support to the rate monitoring scheme that was outlined in the previous legislation which is now being altered, with amendments. Of course, those amendments are redundant now, considering that the government has abandoned its own position on implementing this rate monitoring scheme and is removing the ministerial powers that gave any sort of force to this scheme.

So, yes, the Attorney is right, in that this will absolutely provide a lot of additional information that councils will provide to ESCOSA, that councils will then in turn put in materials they consult with their communities on, but that does not get us much further than we had before and still leaves us in a situation that, if ratepayers do not like it, they go to the ballot box, which is the situation as it has ever been. My question to the Attorney again is: why have you removed the ministerial direction powers and why have you backed down on your own bill?

The Hon. V.A. CHAPMAN: I reject most of the assumptions that are there. I appreciate that the member is a bit cranky because she does not get amendments up or something. What I am hearing is that she wanted to have these changes, but now she is complaining about them or suggesting that they are not acceptable or whatever. The fact is that we have had further discussions. We have settled on ESCOSA. We have settled on a number of the other things that must be disclosed on an annual basis in multiple documents.

What I utterly reject is the assertion by the member that a whole lot of extra red tape has to be prepared for or by councils to facilitate this. What I have said is that they do have to provide that information but this is information as set out in subsection (1e), which is the material amendments made, or proposed to be made, to the council's long-term financial plan and infrastructure and asset management plan, if there are any, and the revenue sources outlined in the funding plan (they have that information already) and any other matter prescribed by regulation.

I do not see a level of red tape there. I see a disclosure to the independent body that is capable of making the assessment of whether what is being presented to the ratepayers of that district is reasonable or not. It puts it in the hands of a qualified person to make that assessment. How do you or I or anyone else in this parliament who is not qualified to be able to make that assessment have access to all that information? We are demanding in this arrangement for that information to be produced to ESCOSA. Their responses have to be published, good or bad, and they will have to deal with that. That is very important.

As my adviser here has pointed out, how does a ratepayer go along to the planning meeting and put up their hand and say, 'I would like to ask about the $10 million the council has in its bank account. Why aren't we using that for tax relief instead of it being spent on proposed capital works for an upgrade of the library?'

Ms Stinson: People do go along and ask those questions.

The Hon. V.A. CHAPMAN: They do—and what capacity have they got to interrogate the response when it comes back? We have all been to these meetings where they say, 'Well, we've got a major plan of capital development here and we do need to do this. Of course we keep funds available to deal with contingencies.' We have all heard it. How is the poor person who is sitting in the front row asking a legitimate question able to get a clear answer that satisfies them as a ratepayer that they are not being dudded into the development of things or the husbanding of money, or hoarding probably, as distinct from giving relief? They do not—of course they do not. That is why it is important that this legislation passes.

I am pleased that the member is now happy with this proposal in relation to rate monitoring. That is great. She is a bit cranky because she has not moved amendments herself. We have sorted this out with the LGA, we have identified the areas that are needed and I have made it very clear that there are lots of ways I can deal with councils that do not do the right thing.

We have a very prescriptive program here. I do not need extra direction powers. Some other future minister might want them and want to exercise them. I do not need them. This will be a very important process for transparency for the average person who is sitting within a council district who wants to know that competent management is being undertaken in their council and that they are not being pulled along into an avenue of spending that is unnecessary and ought to be utilising reserves to give them rate relief.

That is something that 99 per cent of people who live in the general community are not qualified to make that assessment—of course they cannot—and they get the gobbledygook that comes out in public meetings in relation to councils. I have been to them myself. I can tell you all the different answers I have had out of financial advisers and chief executives who stand up and go on about how 'we've got to balance this, we've got to take this into account, we're going to do this great thing over here and we're going to provide for this service'.

I have heard all that, and I think I am a reasonably intelligent person. I usually know bulldust when I see it, but the reality is what can you do about it as a ratepayer other than wait for the next election? The answer is in these proposed pieces of legislation. I am proud of them and I ask that the parliament support them.

Ms STINSON: The Attorney just said that she has lots of other ways to get the council to deliver rate relief. What are they?

The Hon. V.A. CHAPMAN: I did not say that was in relation to rate relief. I said in relation to rate monitoring that there be full transparency and disclosure. We are asking the councils to present that material to an independent body to assess it, and they must publish it. They will have to live or die with those answers. That is the instrument of discipline in relation to this process and I commend it to the parliament.

Amendments carried; clause as amended passed.

Clause 80 passed.

Clause 81.

The Hon. V.A. CHAPMAN: I move:

Amendment No 6 [DepPrem–3]—

Page 47, lines 6 to 9 [clause 81, inserted subsection (2)]—Delete subsection (2) and substitute:

(2) The policies, practices and procedures of internal financial control under subsection (1) must be in accordance with a standard or document (such as a model relating to financial controls) adopted by the regulations.

The clause is being amended to respond to the concerns from the sector that the regulation-making power proposed is overly wideranging. The amendment clarifies that the regulation must only prescribe a standard or document that relates to a council's internal financial controls. I also confirm the intent of this regulation-making power is to prescribe the better practice model for internal financial controls and has been produced by the LGA in conjunction with councils and their auditors and is already widely used across their sector.

A number of issues have been raised about this. We have settled on the language here. Obviously, we would like to think that the better practice model for internal management does become universal amongst the membership. We are setting a standard, though, which introduces the audit controls and which now have these amendments.

Amendment carried.

Mr DULUK: I have a question to the Attorney in regard to the regulation-making power under new section 125(2)—Internal control policies. Attorney, can this new regulation-making power be used to make regulations on any of these matters contemplated in the existing section 125(1) of the act? If not, what are the limitations of new section 125(2) and could this new subsection be used by future state governments to override council decision-making about, for example, budgets, procurement or banking arrangements?

The Hon. V.A. CHAPMAN: The situation with this is that their regulation-making power is actually quite restrained under our laws in relation to regulations in any event. It was the LGA's concern that was raised, which I do not actually agree with. They were concerned that, on the advice that they had had, the reference in subsection (1), which you have referred to, to policies, practices and procedures was of a general nature and therefore non-financial matters could be captured by this.

Whilst I do not agree with that and we have had advice on it, nevertheless, to make it crystal clear you will see in new subsection (3) now that the proposal is to insert the word 'financial' so that it is 'internal financial control'. My understanding is that they understand that. So we are at odds as to whether it is necessary, but to be absolutely clear here—I am not here to be deceptive on this—there are not a whole of other areas that I am going to come in and make regulations on that might impose some other broader remit here. We have settled on that.

I do not have control over what standards the councils use in that regard. They have this better practice model, which they say to me is pretty widely used by their councils. It seems to me they need to do a bit of work to make sure all their councils are utilising it, because these are the sorts of standards that people are measured against when it comes to auditing their own records and so on. It is a means by which we are really just trying to be absolutely clear that it is not the intention of the government that we are going to come in and suddenly make regulation powers, which I think would be unlawful anyway but which they were worried about, so we have added it in.

Clause as amended passed.

Clause 82 passed.

Clause 83.

Mr DULUK: This is in relation to the audit and risk committee, which is something that always appeals to my accounting heart. Attorney, in regard to the new requirement of the audit and risk committee to provide a report to the council every three months, in providing this report are the minutes of the quarterly audit and risk committee sufficient as a reporting document or must a separate written report be prepared? If the latter, what are the form and substance requirements, if any?

The Hon. V.A. CHAPMAN: New section 126(8) states that audit and risk committees must:

(a) provide a report to the council after each meeting summarising the work of the committee during the period preceding the meeting and the outcomes of the meeting…

The bill does not dictate the form of this report as long as it provides the required summary. The essential factor would be that councils are satisfied with the quality of the reporting their committees make to them. If a council is not, this is a matter that the council would raise with their committee.

Clause passed.

Clauses 84 to 86 passed.

Clause 87.

The Hon. V.A. CHAPMAN: I move:

Amendment No 69 [DepPrem–1]—

Page 52, line 29 [clause 87(2), inserted subsection (1a)]—Delete 'or controls (or both)' and substitute:

and controls

Amendment No 70 [DepPrem–1]—

Page 52, lines 33 and 34 [clause 87(2), inserted subsection (1a)(a)]—Delete '(or both) (as the case requires)'

These amendments make slight changes to the way in which the Auditor-General would undertake a council audit if the Auditor-General is acting as a council's auditor. They are technical changes that have been requested by the Auditor-General that clarify that he would audit both the financial statements and the internal controls of the council and that a report on both would be provided to the minister.

I am also aware that some concerns have been raised regarding the costs of these audits given the Auditor-General can recover these costs from the relevant council. I clarify that these audits would be undertaken only when necessary where the undertaking of an audit may be a more efficient way to identify issues than undertaking a full examination, which can place higher demands on a council's resources, and where other benefits are clearly identified.

Ms STINSON: Can the Attorney detail what the cost of the audits will be?

The Hon. V.A. CHAPMAN: It is very much an estimate but, if the council did step in to do an audit, the estimate I am advised would be about $20,000. Again, this is one of the important initiatives that I hope will reassure the ratepayers of the financial management by their councils, and then with ESCOSA, which is really an assessment in relation to their forward planning and proposals, they will have some reassurance as to where their council is going on their behalf and who is paying for it. It is part of a dual exercise.

Amendments carried; clause as amended passed.

Clauses 88 to 92 passed.

Clause 93.

Mr DULUK: Attorney, in dealing with this clause, we are looking to the uses of the power of councils in regard to site value and ratings. I understand all councils use the capital value method. I believe most councils are going to be impacted by these changes, especially in our regions in South Australia's far west, including the Tumby Bay council, Streaky Bay, Whyalla, Port Lincoln, Port Augusta, Kimba, and Ceduna. What transitional arrangements are contemplated to assist these councils to make the complicated change in regard to how they rate their sites and move into a capital value method? Will the state government make available any assistance for the necessary IT changes or is community consultation required?

The Hon. V.A. CHAPMAN: The member is quite correct: the district councils of Tumby Bay, Streaky Bay, Whyalla, Port Lincoln, Port Augusta, Kimba, and Ceduna do and have had, I think historically, a site value assessment basis, and, by the introduction of this reform, that will no longer be available to them. What is clear, though, is that it will take some time to do. On discussions about this matter, it will probably take three or four years for that to come into play. It is not the intention of the government to progress this provision straightaway. We will have to sit down and talk to those councils about how that goes through.

There will be change commencement details and so on so there is a smooth transition that will need to be worked through. The bill also provides regulations to be made for any necessary additional provisions for saving or transitional nature. This can be used, if necessary. We also note that councils have a range of tools under chapter 10 of the act to use when setting rate policies so they have some way of managing that themselves.

Councils can utilise minimum rates and fixed charges, apply a cap on increases on particular properties and provide rebates and relief as they see fit. Again, they have some mechanisms by which they can manage this transfer. Councils making the transition to a capital valuation as the basis of rating can use these tools in this process to ensure the impact on their ratepayers is managed.

The government is mindful that this is going to place a new regime of responsibility to get their house in order for seven councils to accommodate this. It will take some time. We will work with them to ensure that we make this a smooth transition for them.

Clause passed.

Clauses 94 to 97 passed.

Clause 98.

The Hon. V.A. CHAPMAN: I move:

Amendment No 71 [DepPrem–1]—

Page 54, after line 22—Insert:

(1) Section 184(3)—after paragraph (b) insert:

(ba) to the holder of any caveat over the land; and

Amendment No 72 [DepPrem–1]—

Page 54, after line 24—Insert:

(2) Section 184(14)(a)—delete paragraph (a) and substitute:

(a) subject to subsection (14a), all mortgages, charges and caveats; and

(3) Section 184—after subsection (14) insert:

(14a) The title vested in a purchaser under subsection (13) will not be free of a caveat held by an agency or instrumentality of the Crown, unless that agency or instrumentality consents to its discharge.

The LGA has stated that councils have experienced difficulty having transfers processed under this section in circumstances where caveats have been lodged against a title. To prevent title registration processes from becoming protracted, delayed or defeated, this amendment provides the removal of titles upon the sale of land for non-payment of council rates. However, before this happens, the holders of any caveat will need to be given notice by the council at the start of the sale process. Also, caveats held by an agency or instrumentality of the Crown will not be removed from titles unless the agency or instrumentality consents to the discharge of the caveat.

Amendments carried; clause as amended passed.

Clauses 99 and 100 passed.

Progress reported; committee to sit again.