Statutes Amendment and Repeal (Budget Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 November 2020.)

Mr PICTON: I draw your attention to the state of the house.

A quorum having been formed:

The SPEAKER: Member for Lee.

The Hon. S.C. MULLIGHAN (Lee) (12:04): Thank you, Mr Speaker, and a belated happy new year to you and to everyone here this afternoon. I rise to make some brief remarks about the Statutes Amendment and Repeal (Budget Measures) Bill, the annual bill which seeks to make the necessary changes to legislation in order to give effect to a select range of measures included in the state budget handed down here in November of last year. The majority of the changes sought by the government in this bill for the most recent budget are relatively minor in nature, with a couple of exceptions.

It was of interest to me that the government has sought to include amendments to the Police Act that effectively change the arrangements for protective security officers, as we have come to know them, and bring them within the ambit of the Police Act. That is for the purpose of enabling protective security officers, or what we might call unsworn officers, into the service of SA Police in order to conduct a range of tasks that police would otherwise be doing—so-called civilian tasks. This is not related to a particular budget measure, so I am curious to know why the government has sought to include this in the budget measures bill.

I was advised by the Police Association that, at the time that the state budget was presented to this place, the discussions around the police enterprise bargaining agreement were still ongoing and that the changes in this bill presented to the parliament had still not been agreed to. Here we are, nearly three months on from the presentation of the budget to this place, and we read in the media that the negotiations over the police enterprise bargaining agreement have concluded and police have voted to accept what had been negotiated between the government and police representatives, including these changes.

There are also changes to the Land Acquisition Act. The Land Acquisition Act was amended in the early part of last year—I think in the first half of last year—as the former transport minister, the member for Schubert, sought some legislative changes in order to improve the government's processes and perhaps make it easier for the government to go about the processes of compulsory land acquisition for major transport infrastructure projects.

There are some further changes here, two of which are notable. One is to enable the government, by a ministerial notice in the Gazette, to fix a possession date for land to be acquired that is less than three months from the date of the notice of acquisition for a specified project or projects. As members would be familiar, there is a fairly rigorous and necessarily onerous process that the government needs to go through in order to compulsorily acquire a property for the purposes of a major transport infrastructure project, for example.

This measure in this bill makes it easier for the government to effectively gain access and use of that property. As I just read from the explanation of clauses, which has been provided with this bill, this allows the capacity for the government to set a date at which they can have access, rather than the current process under the law, which requires the effluxion of a certain amount of time before that property can be accessed.

There is also a somewhat euphemistic change in what the same document calls a 'clarification' of the definition of vacant land but what might more accurately be described as the inclusion of a new definition of vacant land. Vacant land is now to be defined to include land that:

(a) is residential land on which no person is lawfully residing at the time; or—

curiously—

(b) is non-residential land that is not genuinely being used for income producing purposes at the time; or

(c) is primary production land that is not actively being used for grazing, cropping, horticultural, horse keeping, intensive animal keeping, animal husbandry or other primary production purposes at the time…

I raise that because it gives greater scope for the government to declare land to be vacant and hence to improve its case for gaining access to land, if I can put it like that, that may be required for a major infrastructure project. I also draw attention to those words 'at the time' because, as you could imagine, whether it is primary production land, residential land or commercial land—for example, perhaps a shop or a row of shops along an arterial corridor that is sought to be improved by the government—if it is not generating income 'at the time' it obviously makes it easier for the government to gain access to that property.

I could imagine, particularly after what our state, along with the rest of the country, has been through with the economic dislocation caused by the coronavirus, that there would be more shops vacant and not generating income now than there had been previously. It would be reasonable for a landlord, a commercial property owner, to be concerned should this definition now be included within the Land Acquisition Act. That will be something we will be seeking some further detail on during the course of the consideration of this bill.

There are also some changes that yet again seek, in further areas for the government, to increase revenue from the community. The Mining Act seeks to ensure that a greater proportion of revenue is gleaned for Treasury from freehold landowners of land subject to the provisions of the Mining Act. Perhaps more troublingly, I think there are yet further revenue increases proposed for clients of the Public Trustee.

Sir, as you would be familiar with, the clients of the Public Trustee quite often are those people whose estates are being managed by the government because there is nobody else to manage them or because the people having their estates managed do not have the wherewithal to make their own arrangements or to choose how their affairs or their estates are managed. I am talking about those people still with us, not necessarily those people who are deceased. In either event, the percentage rate charged against those estates, against those clients' financial affairs, will increase on some select investment classes.

This is the latest in a succession of fee increases that we have seen for clients of the Public Trustee, particularly in the last 2½ years. It is getting to the point now where—rather than the Public Trustee providing a 'last resort service' for those people who have no other option for the management of their financial affairs, or for those people who have passed on and there is no-one else capable of managing their estates—instead of that service being provided by the government at the lowest manageable cost, it is seen as an opportunity to raise revenue for the government.

There is nothing in this arrangement that necessarily guarantees that this amount of revenue raised by the Public Trustee must be maintained or kept by the Public Trustee for the discharge of those services. I am sure we will hear the government claim that if fees are being raised by the Public Trustee, perhaps the Public Trustee still presents itself as an entity that is a net cost to government rather than an income generator. This change to these arrangements stands for the future and not just for the current arrangements, and I think that should be a concern for vulnerable people in our community whose affairs are being managed by the Public Trustee.

There are some other minor changes, including to the State Lotteries Act to better apply commissions so they are more consistent with what happens in other jurisdictions, which we have no problem with. There is also a further change on top of what was made previously for the making of fee notices and the gazettal of fee notices. That is all pretty rudimentary. It started out as a red-tape reduction initiative—not for the community, of course, but for the government—for those people in the Public Service responsible for the making of fee notices for Cabinet Office and for cabinet in the consideration of those fee notices.

I make reference to it because last year, while our state was suffering in the middle of the early stages of an economic recession, while there were at one point nearly 50,000 more South Australians unemployed than there were in March 2020, while many businesses had either been forced to close or had chosen to close because it was not viable for them to continue operating, the government very quietly gazetted hundreds and hundreds of fee notices to increase fees across many different areas of government activity by 2 per cent.

When it was pointed out to the government by the opposition and the media that the government had for the first time in memory chosen not to announce what the annual increase to government fees and charges would be, astoundingly the answer from the Treasurer was, 'There is nothing to see here. I thought this was such a minor increase that it didn't warrant comment.' For those people who pay fees and charges to the government, it is something of note and it is something of concern that South Australia was one of the only jurisdictions across the country not to freeze its annual increase in taxes, fees and charges.

The government increased them in the middle of not only a global pandemic but a pandemic ravaging both the jobs market and business opportunities here in South Australia. It was also an increase that came on the back of the remarkable 10 per cent increase in taxes, fees and charges in the previous year's budget across many different fees and charges or the 5 per cent increase levied in the previous year's budget.

We had already had a massive step-up in taxes, fees and charges in the budget that was released in 2019, designed to glean an extra $50 million a year from the public of South Australia, and on top of that this further 2 per cent increase, which the government tried to sneak out without a press release. The extraordinary excuse from the Treasurer was, 'It didn't warrant any comment. It is all par for the course.'

I think that sort of behaviour by a government is reprehensible—that sort of behaviour when communities are looking to the governments that lead them and those who represent them for the support and assistance during an economic recession and during a pandemic such as other states have displayed, with measures like providing large amounts of stimulus funding and getting that stimulus funding quickly out into the community or freezing any increases in government taxes, fees and charges. This sort of behaviour from this government, led by this Premier, is a very poor thing to have seen and quite regrettable.

I do not propose to make any further comment on this bill. We have a couple of questions to ask during committee, and we look forward to assisting the government in moving it through all stages today.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (12:19): Sir, I rise, as you know, on behalf of the government, and most particularly on behalf of the Treasurer in this chamber, for the budget measures bill. I listened very closely to what the member opposite had to say, and unsurprisingly I do not accept the vast majority of his narrative. I respect his right to narrate, but I certainly do not accept the vast majority of what he said.

I think that the most expedient thing we can do, given that the member opposite has said that he would like to, is to go into committee, and I am sure that, along with me, there are advisers at hand who will be able to provide useful answers to the members of the opposition who might like to ask questions.

The DEPUTY SPEAKER: Minister, were you closing debate at that point?

The Hon. D.C. VAN HOLST PELLEKAAN: Only because no-one else seemed to want to speak.

The DEPUTY SPEAKER: Yes. Well, debate is closed.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. S.C. MULLIGHAN: With respect to the percentage rate, which has been provided in the explanation of clauses, how much revenue per year is the movement from 1 per cent up to 1.2 per cent per year estimated to glean?

The Hon. D.C. VAN HOLST PELLEKAAN: I am advised that there are two particular changes in costs. The percentage change is in clause 50—and we could certainly go to that—but if there is a question about clause 4, then that is actually an hourly rate.

The CHAIR: It is what? Sorry, minister, could you repeat that.

The Hon. D.C. VAN HOLST PELLEKAAN: There are two fee changes proposed. We are dealing with clause 4 at the moment. The member has asked a question about a percentage rate increase. There is a percentage rate increase. That is the second of the two fee changes and that is in clause 50. We are on clause 4 at the moment, and the fee change in clause 4 is actually about an hourly rate. It might be that we deal with it when we get to 50 or it might be that there is a slightly different question for clause 4.

The Hon. S.C. MULLIGHAN: I appreciate that explanation. Could the minister advise what the hourly rate is, what the increase is that has been countenanced and how much revenue that is estimated to raise?

The Hon. D.C. VAN HOLST PELLEKAAN: I am advised that there is no fee in this area at the moment. The fee will become $241 per hour and is expected to raise between $30,000 and $40,000 per year.

The Hon. S.C. MULLIGHAN: How has that level of hourly rate been established? What has it had reference to?

The Hon. D.C. VAN HOLST PELLEKAAN: Targeting cost recovery, but I am advised it will actually deliver slightly less than actual cost.

Clause passed.

Clauses 5 and 6 passed.

Clause 7.

The Hon. S.C. MULLIGHAN: I will try to summarise, on this clause, my questions on the clamping and impounding regime. I was grateful to receive some information in the briefing that was provided to me for the purposes of this bill late last year. For the purposes of the record, how many vehicles are impounded each year? What is the basis of the calculation of the amount of revenue that is estimated to be raised by this?

If I have read the bill and the explanation of clauses correctly, in the event that someone has their car impounded they can elect, for example, to be prosecuted for the offence if they do not believe that they should have had their car impounded or that they committed the offence, etc. If the car is returned to them, and they have obviously paid the fee and it has to be reimbursed, in what time frame does that fee need to be repaid to them, and is there any interest that is available for the person who has paid that fee?

The Hon. D.C. VAN HOLST PELLEKAAN: In regard to the number of vehicles per year, I am advised that in the 2018-19 year 4,800 vehicles were impounded. There are no figures available for 2019-20 at this point in time, but, if possible, they will be provided to the opposition between the houses. Do we have that opportunity now? I do not think we will have that opportunity. In the 2018-19 year, the courts awarded $1.2 million for the costs associated with those 4,800 vehicles.

Under the new proposed legislation, somebody who pays the fee at the gate, gets their vehicle back, goes to court and subsequently is not convicted or found innocent or one of the other options, then that person certainly would get back the fee that they paid, but there is nothing in this legislation that offers interest on top of that repayment.

The Hon. S.C. MULLIGHAN: I am grateful to the minister for that explanation. Just so I have it clear in my mind, if somebody is charged with an offence, they have their vehicle impounded because of the alleged offence being committed, they elect to be prosecuted and the court determines that they are not guilty of committing that offence or similar, are they without their car for that entire period? Does it remain impounded until the court finds in their favour?

The Hon. D.C. VAN HOLST PELLEKAAN: I am advised that after the 28-day impoundment, the person in the example that you used would have their vehicle all the way through the court process.

Clause passed.

Clauses 8 to 14 passed.

Clause 15.

The Hon. S.C. MULLIGHAN: The minister may or may not be able to do this unless perhaps he gets some assistance, but I was hoping that the minister could explain to us what the current process is in terms of the government seeking to acquire a property by compulsory acquisition, issuing a notice of acquisition and how that will change if this legislative provision makes its way through.

The Hon. D.C. VAN HOLST PELLEKAAN: Two advisers have arrived, but I think it is the third adviser who is needed to help with this question.

The CHAIR: Do you want the member to repeat the question for the sake of the adviser?

The Hon. D.C. VAN HOLST PELLEKAAN: No, I think I am okay with that, thank you. My adviser will tap me on the shoulder or something if I do not get exactly right everything he has just told me. Understanding that the member opposite is a former minister with deep understanding in this, I will not go through the entire process as it is now, other than to say that the process itself, in terms of the nuts and bolts and the steps that are expected to be undertaken, really has not changed; it is a timing issue. After notice is given—get through the three months—at that point in time, essentially four months after the topic has been raised with the landholder, the government can then set a date for acquisition.

That date will be at the government's discretion but no doubt in consultation with all of the people and organisations that need to be considered. The important thing to say is that none of the steps that need to be taken are circumvented, none of them are removed from the process, but it does allow the government to set a date. I am receiving a little bit more information. Just for clarification, for the notice of intention to acquire there is a three-month window and then there is the notice of acquisition, which can be determined by the government at that point in time.

The Hon. S.C. MULLIGHAN: I am grateful for that explanation. That accords with my vague recollection that the government determines of itself that it may require access or ownership of the property in order to conduct, for example, a major road upgrade. A notice of intent is issued, and then there must be a three-month period before a notice of acquisition can be issued. It was my understanding that there is then a minimum period of time before the property can actually be accessed. What I understand this to do is to give the government the capacity not to wait for that whole period of time but instead fix a date after the issuing of the notice of acquisition; is that correct?

The Hon. D.C. VAN HOLST PELLEKAAN: Yes. Again, just for complete clarity I hope, there is typically a month at the start before the notice of intent is provided. Then there is the three-month window, with the notice of intent. Then there is the notice of acquisition, which currently is another three months. That three months is what is being removed as a nominated number. It might be that it is three weeks, it might be that it is six months, but that will be the government's opportunity to determine.

The three months is being removed, being the second three months—notice of acquisition—and replaced by a date instead of an amount of time. I think it is fair to assume that in some cases it would be appropriate and beneficial for all parties if that date was less than three months away, and in other cases it may well be beneficial for it to be more than three months away.

The Hon. S.C. MULLIGHAN: I will give a bit of preamble before my last question on this clause. My understanding of the process is that notice of intent, much as its name suggests, is merely a formal indication by the government that at that point in time it intends to either wholly or partly take ownership of a property for the purposes of, for example, a project. During the course of the subsequent three months before a notice of acquisition is issued, the owner may engage with the government, may seek some clarity about whether it is partial or complete, may perhaps ask if there are alternatives and so on, but it is really at that point in time, the formal notice of acquisition, that best and accurately defines the government's decision to acquire the property. This change will allow a date to be fixed straight after the issuing of it.

Basically, what you are saying is that it might be three weeks, it might still be three months, it might be six months, it might be shorter or it might be longer. My concern is that, if it is the shorter length, from the time that a person is formally told that the government will be acquiring it—that is, the notice of acquisition—under this provision the government can very quickly seek to formally access the property or take ownership of the property.

In the case of a major road upgrade, where perhaps somebody has lived in (owner-occupied) that property for quite a period of time, not having that mandated three months could cause quite significant dislocation to them. Maybe they were hoping they had come up with some alternatives for the government so they could get around the property and not need it, for example, or that they were pursuing some sort of other remedy in order for them to try to maintain ownership or give the government a lesser proportion of their property and so on.

My question really is: if it is going to be contracted to a date that the government can nominate, presumably much shorter after the issuing of the notice of acquisition, what other measures are the government proposing to put in place to make the dislocation of that property owner a bit easier for them to digest? Is there additional support or compensation or some other assistance that the government will be providing to these property owners in the event that the date is less than the current three months?

The Hon. D.C. VAN HOLST PELLEKAAN: Yes, member for Lee, your preamble was an accurate way of describing how it works, including that it may be shorter, it may be longer, or it may be three months. With regard to your final question about what compensation or other support is offered, it is not the intent of this bill to automatically make it less than three months. There is nothing with regard to compensation in this bill that links directly to the question that you asked and that is because this is trying to make this process far more expedient and far more practical for all parties, not just for the government.

I can tell you that, in my fairly limited experience with this type of situation in my own electorate, there are sometimes people who say, 'Look, I can see what's happening. Just get it done. I don't want to wait three months. Just give me my money. Let me go.' It might be because there is another property to purchase to move to that is available now and it may not be available later. There are also people at the other end of the spectrum who want to dig their heels in. That is their choice and they say, 'There is no time that will suit me.' It is not necessarily all good or all bad. It is very much about just trying to provide the flexibility to make things happen in the most sensible way for everybody involved.

Clause passed.

Clause 16.

The Hon. S.C. MULLIGHAN: My understanding is that this relates to the measure where a minister can effectively delegate to one of the officers, for example in the department or agency for which they are responsible, the decision of a change to a fee or another form of a prescribed charge. I am happy to be corrected if that is not the case, but I think that, rather than the minister having to make these decisions and rather than the minister having to make these notices, it can be delegated to a senior officer. If that is correct, on the basis that that is the situation, to what extent is the—

The Hon. D.C. VAN HOLST PELLEKAAN: Excuse me, Chair. Apologies for interrupting, but a new adviser has come from outside and did not hear the start of the question.

The Hon. S.C. MULLIGHAN: I was saying, hopefully accurately, that clause 16 enlivens the initiative that the government is seeking to pursue where somebody other than the minister is able to prescribe a fee and issue a notice in order to determine whatever that fee or change in fee is. If that is correct, my question is: to what extent can a minister delegate that authority to those people who report to him or her?

The Hon. D.C. VAN HOLST PELLEKAAN: Member for Lee, this time your description at the beginning was not quite accurate, I am advised. It is not so much about the minister delegating fee determination to somebody else; in fact, that is not it at all. The relevant act is not being changed in that regard.

There was, I am advised, some concern that under the existing legislation the Governor might be considered to be a relevant person, if you like, other than the minister who might have that discretion. This is removing that, clarifying that, and essentially just leaving it as it is at the moment. Where a minister would have that authority, that stays. Where somebody else might have that authority, that stays. It is just tidying up a potential discrepancy with regard to the Governor potentially having a role with regard to setting fees.

The Hon. S.C. MULLIGHAN: I did my best to stay with the minister during the course of that description, but perhaps he could have another go for my benefit. It is no criticism of his explanation, but I am not seeing what the problem is that is being corrected let alone how that is being corrected.

The Hon. D.C. VAN HOLST PELLEKAAN: I will have another crack at it for you, member for Lee. On the one hand, it is tricky to explain; on the other hand, there is no smoke and mirrors, there is nothing hidden here whatsoever. The issue is with regard to the relevant authority and, as you would understand, there are different fees. Some are from the minister, some are by regulation.

There is, I am advised, currently, a bit of a concern that the description of a relevant person or body could potentially include the Governor when they are being made by regulation and the Governor is overseeing, in technicality, that process. So it is removing the possibility that the Governor could be considered a relevant body or person and getting right back to the original intent of the fees legislation so that it will either be the minister or it will be done by regulation as is currently the case.

The Hon. S.C. MULLIGHAN: I think I have exhausted our collective appetite to pursue this any further, sir.

The CHAIR: Okay. Well, it was pretty clear to me, member for Lee.

Clause passed.

Remaining clauses (17 to 68) and title passed.

Bill reported without amendment.

Third Reading

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (12:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.