Aboriginal Heritage (Miscellaneous) Amendment Bill

Standing Orders Suspension

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (19:30): I move without notice:

That standing orders be so far suspended as to enable rescission of the order for limitation of debate on the bill.

The SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

The Hon. S.E. CLOSE: I move:

Pursuant to order that the order allotting 60 minutes for all stages of the bill be rescinded.

Motion carried.

The Hon. S.E. CLOSE: I move:

That the time allotted for all remaining stages of the bill be two hours.

Motion carried.

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr TEAGUE (Heysen) (19:33): The exact stage of where we are at on this is one that might be noted by the house. Here we are, back from a dinner break. We are now in the I think literally globally unprecedented territory of being technically the subject of 10 guillotines for nine bills. Moreover, I have been criticised, albeit by way of disorderly interjection in the course of members filing their way in here for the purposes of the suspension of standing orders, for needing to get on with doing my job. I am gladly willing to do that. I am rapidly feeling as though I am somehow personally the subject of these guillotines. I am loath to take matters personally, but that would be a regrettable circumstance indeed, not only for the electors of Heysen but for all South Australians, to have a sense that some members of this place are unequal and indeed some members are more equal than others.

I am reminded of the contribution of the member for West Torrens, not 17 years ago, just a few short years ago in this place, in July 2008, when he made clear what were at least then his principles in relation to the quality and capacity for debate. Those are matters of record both then and earlier today and I will not stay here to repeat them. It is really rather astonishing that after what has been a day—it must be unprecedented—when we have seen this parliament subjected to not one rare guillotine, but nine guillotines followed by the rescission of one of them and then the reapplication of one of them so that we have now, I think—and I stand to be corrected because it took a bit to keep notes—nine, then rescission reimposed, 10 guillotines on debate.

An honourable member interjecting:

Mr TEAGUE: I hear the Deputy Premier interjecting and saying, 'Well, we are legislating.' Yes, we are legislating; that is the task of this house and it ought to be the occasion at which all 47 members of this place are allowed to participate in accordance with the standing orders for the progress of legislation. It has been a matter of record that it has been this government's practice to rise in accordance with the standing orders at exactly 5.31pm day after sitting day so as to sit for the absolute minimum period of time.

The SPEAKER: Point of order?

Mr ODENWALDER: Yes, point of order, sir. I wonder if you can consider whether the member is reflecting on a vote of the house?

The SPEAKER: Yes, I think the member is and I would ask the member to come back to the legislation and the focal point of the bill. It seems every time there has been a discussion today, a lot of your discussion has been about guillotines and not about the legislation. Perhaps if you could come back to what the bill is meant to be debated about, that would be handy.

Mr TEAGUE: I thank you, Speaker, and within the confines of what the guillotine provides me I will, as I think I have ably demonstrated I have been able and willing to do in the course of the passage of nine separate pieces of legislation today, none of which have required remotely the amount of time that has been pre-imposed by a completely unreasoned, unnecessary, undisclosed set of guillotines that have been applied in this place. All of that just sits at the government's feet. We are here doing our job and I will continue to get on with doing exactly that.

I think at the time that I sought leave to continue my remarks earlier today I was reflecting on the fact that this bill addresses, in part, a Labor election commitment and I addressed the part of it that this bill addresses. There are a whole bunch of other matters that are the subject of those four paragraphs and we wait to hear from the government about how it might go about fulfilling those aspects of the election commitment the government has made.

I have reflected also on the consideration of the then Aboriginal Lands Parliamentary Standing Committee—over two parliaments—and drawn the attention of the house to the report, relevantly in relation to matters of Aboriginal heritage, that was tabled in this place shortly before the committee was disbanded by this government, leaving us with no standing committee in any way focused on matters of particular interest to Aboriginal people, let alone Aboriginal heritage.

In terms of continuing my contribution, the particular circumstances in which I sought leave to continue my remarks were upon the receipt, after the commencement of sitting this morning, of a bundle of 15 amendments, in the name of the Deputy Premier, to this bill, the Aboriginal Heritage (Miscellaneous) Amendment Bill 2023, which has been observed was introduced in the other place by the minister on 18 May 2023 and was received from the other place and read a first time in this place on 8 February this year.

Notwithstanding that history and the fact that the bill has been sitting on the Notice Paper for the better part of the year—and I do not point this out for any other reason, really, than the practicality—for reasons that are not entirely apparent, these 15 amendments to the bill have been, as it were, in gestation throughout the period since the bill was introduced in the other place. They had not come to be articulated prior to the bill finding its way into the house, and they reflect a number of changes, including in response to a change of the name of certain legislation, but I am satisfied, as presently advised, that the balance of these changes are, broadly speaking, improvements to the bill in the form in which it passed in the other place and then found its way here.

The problem with that is that the house is left in circumstances where we have had a bill sitting on the Notice Paper for the bulk of this year. We have seen these amendments landing in this place after the commencement of sitting today, and, notwithstanding that, having been handed these amendments, as the lead speaker for the opposition I found myself on the receiving end of the third of those 10 guillotines. I just cannot express how unprecedented and outrageous those circumstances are, all of which arise against a background of it being well known that the opposition supports the bill and that constructive work has been done in that regard, with a view to ensuring that it can do some work in the interest of improving Aboriginal heritage protection in this state. I am at a loss as to why we are finding ourselves in these particular circumstances.

Having addressed the substance of the bill, I will not stay longer. It is necessary for the house to go into committee to address these 15 amendments. I foreshadow that while it has not, for obvious reasons, been practical for me to obtain a view of my party, and for the opposition to have, therefore, a view about the amendments, I was afforded a briefing at about five minutes past six this evening in relation to these amendments. I appreciate that very much. I appreciate the diligence of those advisers in the office and the department who have stayed this evening in order to provide that briefing and further to assist the government in terms of the passage, and so I look forward to the committee stage and the opportunity for the government to explain itself in terms of these amendments to a bill which I otherwise commend and look forward to seeing the passage of shortly.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (19:46): I would like to thank the opposition for their support and the honourable member for his support for this piece of legislation. I am glad that we were able to suspend the debate earlier today, once I realised that the amendments had been filed so recently, so belatedly, for the member to be able to be briefed. Of course, I thank the staff for their willingness and capacity to do that. I look forward to seeing how we go in committee. I commend the bill.

Bill read a second time.

Committee Stage

In committee.

The CHAIR: Which is the first clause you wish to discuss, member for Heysen?

Mr TEAGUE: Can I just indicate at the outset that the only reason that we are in committee at all is by necessity; the government needs to move its 15 amendments. I just flag that I do not propose to raise questions in respect of the bill as it stands unamended. The opposition supports the bill.

The committee is an opportunity for the government to move its 15 amendments. In the circumstances, I would invite the government to do so amendment by amendment. That may not be the Deputy Premier's plan but, in the circumstances, that would assist me and I think it might assist the committee and the record, so I just indicate that at the outset.

The CHAIR: Just to clarify, is your aim to get the government to put on record the reason why they are moving the amendments?

Mr TEAGUE: Yes, basically.

The CHAIR: So any clauses without amendments, you are happy just to endorse them?

Mr TEAGUE: Yes.

Clauses 1 and 2 passed.

Clause 3.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–2]—

Page 3, line 11—Delete 'Petroleum and Geothermal Energy Act 2000' and substitute:

Energy Resources Act 2000

This amendment updates a reference to the formerly named Petroleum and Geothermal Energy Act which was renamed the Energy Resources Act with effect from 11 April 2024.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–1]—

Page 3, after line 11—Insert:

(2) Section 3, definition of owner—delete 'a reference to the owner of the land extends to the holder of the tenement' and substitute:

, or a licence or permit under the Hydrogen and Renewable Energy Act 2023, a reference to the owner of the land extends to the holder of the tenement, licence or permit

(3) Section 3, definition of private land, (c)—after 'tenement' insert:

, or a licence or permit under the Hydrogen and Renewable Energy Act 2023

This amendment would amend the definitions of 'owner' and 'private land' in section 3 of the Aboriginal Heritage Act to include, respectively, persons who hold and land that is subject to a licence or permit under the Hydrogen and Renewable Energy Act 2023.

Under existing section 20 of the Aboriginal Heritage Act an owner or occupier of private land must report to the minister, as soon as practicable, the discovery on their land of an Aboriginal site, object or remains. Private land is in turn defined under the act as including land subject to a mining tenement, with a mining tenement currently defined as including a lease, licence or permit under the Mining Act, Petroleum and Geothermal Energy Act, Petroleum (Submerged Lands) Act or Offshore Minerals Act.

This amendment follows the enactment of the Hydrogen and Renewable Energy Act 2023 which passed after the introduction of this bill, and will ensure that licence and permit holders under that act will be required to report the discovery of an Aboriginal site, object or remains on the relevant land in the same way as holders of other types of resource permits.

Amendment carried; clause as amended passed.

Clauses 4 and 5 passed.

Clause 6.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [DeputyPremier–2]—

Page 3, line 23 [clause 6, inserted paragraph (d)]—Delete paragraph (d)

Amendment No 3 [DeputyPremier–2]—

Page 3, lines 25 to 27 [clause 6, inserted paragraph (e)]—Delete 'authorising the uncovering, damage to, disturbing of, interference with or removal of additional Aboriginal sites, objects or remains)' and substitute:

authorising 1 or more of the following:

(i) excavation for the purposes of uncovering additional Aboriginal sites, objects or remains;

(ii) damaging or disturbing additional Aboriginal sites, objects or remains;

(iii) interference with or removal of additional Aboriginal sites, objects or remains); or

Although this explanation will appear lengthy to those listening, or reading in future, it will then shortcut further explanations for some of the subsequent amendments. This amendment is the first in a set of proposed government amendments to the bill to incorporate more flexibility into the requirements in the bill to pause works and report discoveries of Aboriginal heritage where a proponent developer is acting under an authorisation to affect heritage which has been granted under the act.

This bill was introduced in the wake of the Court of Appeal decision in the case of Kelaray which interpreted the Aboriginal Heritage Act as requiring holders of an authorisation under the act to pause works and report the discovery of an Aboriginal site, object or remains to the minister to give the minister an opportunity to consider issuing a direction under the act to protect the discovery. The bill aimed to put parameters around those requirements to stop and report in order to provide certainty to proponents.

Since the decision in Kelaray, Aboriginal affairs and reconciliation officers have been administering the act as interpreted in Kelaray in respect of existing authorisations and projects and new authorisation applications. This has afforded AAR the opportunity to test the application of the proposed amendments in this bill.

That experience has led to growing concerns by both AAR and proponents that stopping works and reporting up-front all new discoveries of heritage before dealing with or managing the discovery and resuming works, as envisaged by the amendments, is potentially unworkable in some circumstances, with little or no benefit for heritage protection in those circumstances.

The post Kelaray experience with administering stop and reporting requirements for discoveries has revealed the need for the legislation to provide a more bespoke approach to different types of discoveries. Accordingly, this set of government amendments to the bill will remove the requirement to pause works and report immediately to AAR the discovery of Aboriginal objects as opposed to sites or remains.

Past and future authorisations under the act often require that anticipated discovered objects be managed by Aboriginal monitors or retained archaeologists on site—for example, by being bagged, catalogued and safely stored. This is considered to be sufficient protection for those objects without unnecessarily disrupting development works and requiring reporting to occur before the proponent proceeds with managing that discovered object and resuming works. Instead, such discoveries could be reported to AAR periodically at a later date.

This set of amendments will also incorporate more flexibility into the bill requirements to pause works on discovery of an Aboriginal site or remains. They do this by removing the default timeframes for pausing works and replacing these with a requirement that the timeframes be in accordance with conditions attached to the authorisation which, in turn, will facilitate bespoke arrangements for different projects with different risk profiles.

As with the current provisions in the bill, these amendments will apply also to extant authorisations, adopting the same modified approach to discoveries of objects and sites and remains, noting that after the Kelaray decision existing section 20 of the act is interpreted to require holders of extant authorisations to report discoveries of all Aboriginal sites, objects and remains up-front to the minister and stop works to allow the minister to consider taking action under the act in respect of the discovery.

The bill, as introduced and passed by the Legislative Council, includes a provision to make it clear that the minister can issue a direction to protect Aboriginal heritage following receipt of new information about heritage that was known at the time of granting an authorisation under sections 21 or 23 of the act. This is to address what occurred in the case of the destruction of Juukan Gorge in WA in 2020.

This set of amendments expands on that existing provision to also expressly state that the requirement to report discoveries of Aboriginal sites and remains includes the requirement to report discoveries of new information about known sites and remains. Again, the precise details about what must be reported in terms of degree of significance will be as set out in the authorisation instrument and adapted to different types of projects.

The substantive changes are contained in a new section 20A, to replace sections 20A and 20B, proposed to be inserted by the bill. This particular amendment is consequential to those changes in deleting a reference to a type of authorisation to resume works after a discovery that will no longer exist in the bill and act, and therefore no longer need to be excluded from the section 13 consultation requirements applying to certain authorisations under the act.

Mr TEAGUE: I am grateful that the Deputy Premier has, as it were, rolled up a set of amendment explanations, as it were. I wonder is it convenient, again, for the purpose of the record and the committee, to indicate the clauses to which that rolled-up explanation applies? That might help us to get through the committee rather more quickly.

The Hon. S.E. CLOSE: The linked amendments are in the schedule [Deputy Premier-2], Nos 2, 5, 6, 7, 8, 9, 10, 11, 13 and 14.

Mr TEAGUE: They will all need to be moved, obviously, but I just indicate that that explanation suffices for my present purposes in relation to those clauses.

The CHAIR: You do not want them repeated 14 times, do you?

Mr TEAGUE: No, unless the Deputy Premier has anything to add when we come to each of those, if there is anything specific, but otherwise that might serve the committee's purpose.

Amendments carried; clause as amended passed.

Clause 7 passed.

New clauses 7A and 7B.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [DeputyPremier–1]—

Page 4, after line 3—Insert:

7A—Amendment of section 17—Powers

(1) Section 17(1)—after paragraph (ba) insert:

(bb) in the following circumstances, use reasonable force to break into or open any part of, or anything in or on, any land, premises, vehicle or place:

(i) with the authority of a warrant issued under section 17A;

(ii) if the inspector reasonably believes that immediate action is required;

(iii) with the permission of the owner of the land, premises, vehicle or place;

(2) Section 17(1)(c)(ii)—delete 'that affords evidence of an offence against' and substitute:

used in, or that affords evidence of, a contravention of

(3) Section 17(1)—after paragraph (f) insert:

(g) require any person to produce any documents, including a written record that reproduces in an understandable form information stored by computer, microfilm or other process, as reasonably required in connection with the administration or enforcement of this Act;

(h) examine, copy or take extracts from any documents or information so produced or require a person to provide a copy of any such document or information;

(i) take photographs, films, audio, video or other recordings as reasonably required in connection with the administration or enforcement of this Act;

(j) take onto or into any land, premises, vehicle or place, and use, any equipment or apparatus (including, for example, ground penetrating radar, audio visual recording equipment or other measuring or recording apparatus) as reasonably required in connection with the administration or enforcement of this Act;

(k) require a person who the inspector reasonably suspects has knowledge of matters in respect of which information is reasonably required for the administration or enforcement of this Act to answer questions in relation to those matters, to state the person's full name and usual place of residence and to produce evidence of the person's identity;

(l) give any directions reasonably required in connection with the exercise of a power conferred by a preceding paragraph.

7B—Insertion of sections 17A and 17B

After section 17 insert:

17A—Warrants

(1) Where, on the application of an inspector, a magistrate is satisfied that there are reasonable grounds to believe—

(a) that a contravention of this Act has been, is being, or is about to be, committed in or on specified land, premises, a vehicle or place; or

(b) that something may be found in or on specified land, premises, vehicle or place that has been used in, or constitutes evidence of, a contravention of this Act,

the magistrate may issue a warrant in respect of the land, premises, vehicle or place authorising an inspector, with such assistants as the inspector considers necessary, to use reasonable force to break into or open any part of, or anything in or on, the land, premises, vehicle or place specified in the warrant.

(2) An application for the issue of a warrant may be made either personally or by telephone.

(3) The grounds of an application for a warrant must be verified by affidavit.

(4) An application for the issue of a warrant may not be made by telephone unless in the opinion of the applicant a warrant is urgently required and there is insufficient time to make the application personally.

(5) Where an application for the issue of a warrant is made by telephone, the following provisions apply:

(a) the applicant must inform the magistrate of their name and identify themselves as an inspector, and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is an inspector;

(b) the applicant must inform the magistrate of the grounds on which they seek the issue of the warrant;

(c) if it appears to the magistrate from the information furnished by the applicant that there are proper grounds for the issue of a warrant, the magistrate must inform the applicant of the facts on which they relied as grounds for the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts;

(d) if the applicant gives such an undertaking, the magistrate may then make out and sign a warrant, noting on the warrant the facts on which they relied as grounds for the issue of the warrant;

(e) the warrant will be taken to have been issued, and will come into force, when signed by the magistrate;

(f) the magistrate must inform the applicant of the terms of the warrant;

(g) the applicant must, as soon as practicable after the issue of the warrant, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c).

(6) An inspector who executes a warrant must, as soon as practicable after execution of the warrant—

(a) prepare a notice in the prescribed form containing—

(i) their name and a statement that they are an inspector under this Act; and

(ii) the name of the magistrate who issued the warrant and the date and time of its issue; and

(iii) a description of the land, premises, vehicle or place to which the warrant relates and of the authority conferred by the warrant; and

(b) give the notice to the occupier or person apparently in charge of the land, premises, vehicle or place in respect of which the warrant was issued or leave it for them in a prominent position on the land, premises, vehicle or place.

(7) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires.

17B—Self-incrimination

(1) It is not a reasonable excuse for a person to fail to answer a question or to produce, or provide a copy of, a document or information as required under this Act on the ground that to do so might tend to incriminate the person or make the person liable to a penalty.

(2) If compliance by a natural person with a requirement under this Act might tend to incriminate the person or make the person liable to a penalty, then—

(a) in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or

(b) in any other case—the answer given in compliance with the requirement,

is not admissible in evidence against the person in proceedings for an offence or for the imposition of a penalty (other than proceedings in respect of the making of a false or misleading statement).

This amendment expands the powers of inspectors in the Aboriginal Heritage Act to enforce the act. In particular, to add into section 17, setting out the powers of inspectors, powers to break or force entry into land, premises, places or vehicles and to require persons to answer questions. These powers in particular were found lacking in recent investigations of breaches of the act after the introduction of the bill.

The more robust inspector powers inserted by these amendments are modelled on enforcement powers contained in the Environment Protection Act 1993 and Landscape South Australia Act 2019, including the same accompanying provisions regarding obtaining the warrant of a magistrate before exercising the forced entry power and regarding protection against self-incrimination in the case of the requirement to answer questions.

New clauses inserted.

Clause 8.

The Hon. S.E. CLOSE: I move:

Amendment No 3 [DeputyPremier–1]—

Page 4, after line 4—Insert:

(1) Section 18(b) and (c)—delete paragraphs (b) and (c) and substitute:

(b) contravene a requirement or reasonable instruction of an inspector under this Act, or a direction of an inspector under section 17.

This amendment is consequential on amendment No. 2 of [DeputyPremier–1]. This amendment will extend the current offence for contravening a requirement or reasonable instruction of an inspector to include contravening a direction by an inspector in connection with the exercise of the inspector's expanded powers.

Amendment carried; clause as amended passed.

Clauses 9 to 11 passed.

Clause 12.

The Hon. S.E. CLOSE: I move:

Amendment No 4 [DeputyPremier–2]—

Page 4, after line 29—Insert:

(3a) Section 20(2)—after 'traditional owner' second occurring insert:

(other than where the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, persons engaged in commercial activities on the land where the discovery is made)

I am only moving amendment No.4 [Deputy Premier-2] at this stage. Consistent with existing provisions in the bill and the proposed replacement of section 20A that is part of this set of amendments, this amendment clarifies that traditional owners are still required to report discoveries of Aboriginal heritage if they are working as an Aboriginal monitor or otherwise on behalf of the proponent.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 5 [DeputyPremier–1]—

Page 7, line 15 [clause 13, inserted section 20A(7), definition of prescribed period, (b)]—Delete 'business' and substitute 'working'

This amendment is linked, not in terms of how we are passing these amendments but in terms of what work they are doing.

Amendment carried; clause as amended passed.

Clause 13.

The Hon. S.E. CLOSE: I move:

Amendment No 6 [DeputyPremier–2]—

Page 5, line 9 to page 8, line 19—Delete clause 13 and substitute:

13—Insertion of section 20A

After section 20 insert:

20A—Cessation of activity and reporting to Minister on discovery etc of certain sites, objects or remains while acting under authorisation

(1) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both after the commencement of this section (the relevant authorisation)—

(a) discovers an Aboriginal site, object or remains; or

(b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or

(c) becomes aware of new information relating to an Aboriginal site or remains,

must, in accordance with the requirements set out in the relevant authorisation—

(d) in the case of an Aboriginal site or remains—cease undertaking activity within the prescribed distance of the site or remains; and

(e) in any case—report the discovery or new information to the Minister.

(2) A prescribed person who, while acting, or purportedly acting, pursuant to an authorisation given by the Minister under section 21 or 23 or both before the commencement of this section (the relevant authorisation)—

(a) discovers an Aboriginal site, object or remains; or

(b) discovers a site, object or remains that the person suspects, or ought reasonably to suspect, may be an Aboriginal site, object or remains; or

(c) becomes aware of new information relating to an Aboriginal site or remains,

must—

(d) in the case of an Aboriginal site or remains—

(i) cease undertaking activity within the prescribed distance of the site or remains for such period as may be reasonably necessary to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains; and

(ii) as soon as is reasonably practicable after the discovery, or after becoming aware of the new information, report the discovery or new information to the Minister; or

(e) in the case of an Aboriginal object—manage the object, and report the discovery of the object to the Minister, in accordance with the requirements set out in the relevant authorisation.

(3) To avoid doubt, subsection (2)(d) applies despite a provision of an authorisation to the contrary.

(4) A prescribed person who contravenes subsection (1) or (2) is guilty of an offence.

Maximum penalty:

(a) in the case of a body corporate—$500,000;

(b) in any other case—$250,000 or imprisonment for 2 years or both.

(5) Except as is contemplated by subsection (6), subsections (1) and (2) do not apply in relation to the following Aboriginal sites, objects or remains:

(a) Aboriginal sites, objects or remains that are known to the Minister and disclosed to the applicant in the course of their application for the relevant authorisation (whether or not the discovery of the sites, objects or remains has previously been reported under this Act);

(b) Aboriginal sites, objects or remains the discovery of which is reported under section 20;

(c) Aboriginal sites, objects or remains that are the subject of a management methodology approved by the Minister for the purposes of this section;

(d) Aboriginal sites, objects or remains that are the subject of a local heritage agreement;

(e) any other Aboriginal site, objects or remains, or Aboriginal sites, objects or remains of a kind, prescribed by the regulations.

(6) Despite subsection (5), subsections (1) and (2) continue to apply in relation to new information relating to an Aboriginal site or remains of which a prescribed person becomes aware (whether or not the site or remains themselves are referred to in subsection (5)).

(7) Before approving a management methodology for the purposes of this section, the Minister must be satisfied that—

(a) consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, was carried out in accordance with any requirements set out in the regulations or guidelines in the development of the management methodology; and

(b) the management methodology includes provisions requiring consultation with traditional owners, and other Aboriginal persons or Aboriginal organisations that have a particular interest in the matter, in relation to sites, objects or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation; and

(c) the management methodology includes provisions that provide the Minister with a reasonable opportunity to take action under this Act in respect of sites or remains discovered in the course of undertaking an activity pursuant to the relevant authorisation, or where new information relating to a site or remains becomes known; and

(d) a condition is imposed on the relevant authorisation requiring the person to whom the authorisation is given to comply with the management methodology in relation to sites, objects and remains discovered in the course of undertaking an activity pursuant to the authorisation; and

(e) the management methodology complies with any other requirements set out in the regulations or guidelines.

(8) Nothing in this section limits a direction that may be given by the Minister or an inspector under this Act (and, in particular, nothing in this section authorises a person to contravene such a direction).

(9) In this section—

prescribed distance, in relation to a site or remains, means—

(a) if the regulations prescribe a distance for the purposes of this section—that distance; or

(b) if the site or remains are discovered in the course of undertaking an activity pursuant to an authorisation of the Minister under section 21 or 23, and that authorisation specifies a distance for the purposes of this section—that distance; or

(c) in any other case—

(i) in the case of a site—3 metres; or

(ii) in the case of remains—5 metres.

prescribed person, in relation to a relevant authorisation, means—

(a) the person to whom the relevant authorisation is given; and

(b) a traditional owner of the site or remains to the extent that the traditional owner is an employee or agent of, or is otherwise acting for or on behalf of, a person to whom the relevant authorisation is given; and

(c) an employee or agent of, or a person otherwise acting for or on behalf of, a person referred to in a preceding paragraph; and

(d) any other person prescribed by the regulations.

This amendment is the principal change in the set of government amendments to incorporate more flexibility into the bill's stop and report requirements. As I have already given an explanation of this matter, I will not reiterate all of the details.

Amendment carried; clause as amended passed.

Clause 14.

The Hon. S.E. CLOSE: I move:

Amendment No 7 [DeputyPremier–2]—

Page 9, after line 28 [clause 14(4)]—Before inserted subsection (2) insert:

(1a) Without limiting any other condition that may be imposed on an authorisation, the Minister must not give an authorisation for the purposes of this section unless the authorisation contains the following conditions:

(a) a condition requiring that where—

(i) a site or remains are discovered in the course of undertaking activities pursuant to the authorisation; or

(ii) new information relating to a site or remains becomes known to a person undertaking activities pursuant to the authorisation,

such activity must immediately cease within a specified distance of the site or remains (which must not be less than the prescribed distance within the meaning of section 20A); and

(b) a condition requiring that a specified person or body must, as soon as is reasonably practicable, report a discovery or new information referred to in paragraph (a) to the Minister; and

(c) a condition that prevents the resumption of activities pursuant to the authorisation during the period specified in the condition (being a period that is sufficient to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains); and

(d) any other condition required by the regulations.

This amendment is consequential on the set of government amendments that we have already discussed. It will in particular add requirements that future authorisations under section 21 for excavation a site, object or remains include conditions requiring proponents to pause works and report the discovery of a site or remains, or new information about a site or remains, as soon as practicable to the minister. Conditions to this effect have routinely been added to past authorisations, but the amendment would ensure that the act makes this clear, with the details for how far and long to stop to be flexibly determined in the authorisation instrument, as intended by the proposed new section 20A.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 8 [DeputyPremier–2]—

Page 9, lines 5 and 6 [clause 14(4), note to inserted subsection (4)]—Delete 'under section 20B' and substitute:

in accordance with section 20A

It requires no further explanation.

Amendment carried; clause as amended passed.

Clauses 15 and 16 passed.

Clause 17.

The Hon. S.E. CLOSE: I move:

Amendment No 9 [DeputyPremier–2]—

Page 9, after line 33 [clause 17, inserted section 23]—After inserted subsection (2) insert:

(2a) Without limiting any other condition that may be imposed on an authorisation, the Minister must not give an authorisation for the purposes of this section unless the authorisation contains the following conditions:

(a) a condition requiring that where—

(i) a site or remains are discovered in the course of undertaking activities pursuant to the authorisation; or

(ii) new information relating to a site or remains becomes known to a person undertaking activities pursuant to the authorisation,

such activities must immediately cease within a specified distance of the site or remains (which must not be less than the prescribed distance within the meaning of section 20A); and

(b) a condition requiring that a specified person or body must, as soon as is reasonably practicable, report a discovery or new information referred to in paragraph (a) to the Minister; and

(c) a condition that prevents the resumption of activities pursuant to the authorisation during the period specified in the condition (being a period that is sufficient to allow the Minister a reasonable opportunity to take action under this Act in respect of the site or remains); and

(d) any other condition required by the regulations.

Amendment No 10 [DeputyPremier–2]—

Page 10, lines 14 and 15 [clause 17, note to inserted section 23(6)]—Delete 'under section 20B' and substitute 'in accordance with section 20A'

The amendments are consequential and part of the set of government amendments to incorporate more flexibility into the stop and report requirements. It will add requirements that future authorisations under section 23—Damaging, disturbing or interfering with sites, objects or remains, include conditions requiring proponents to pause works and report the discovery of a site or remains, or new information about a site or remains, as soon as practicable to the minister. Conditions to these effect have routinely been added to past authorisations, but the amendment will ensure that the act makes this clear.

Amendments carried; clause as amended passed.

Clause 18.

The Hon. S.E. CLOSE: I move:

Amendment No 11 [DeputyPremier–2]—

Page 11, line 10 [clause 18(6), inserted subsection (1b)(b)]—Delete 'section 20A(3)(d)' and substitute 'section 20A'

This is a consequential amendment.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 12 [DeputyPremier–2]—

Page 11, lines 15 to 17 [clause 18(7)]—Delete subclause (7) and substitute:

(7) Section 24(2)—delete 'under subsection (1)(c)' and substitute:

(other than a direction given in the circumstances contemplated by subsection (1a)) under subsection (1)(c) that have the effect of prohibiting or restricting access for a period of more than 3 months

This amendment would amend section 24(2) of the act with broader application in the current bill amendment. The current bill amendment would provide that the minister does not first require the Governor's approval before making a direction that would prohibit or restrict access to a site following the discovery of Aboriginal heritage or new information about known Aboriginal heritage.

This proposed broader amendment would also allow the minister to make a direction temporarily restricting access to a site for a period of up to three months without the Governor's approval. This is necessary because an urgent inspector's direction under section 25 of the act only applies for a maximum of 10 working days. Allowing for a longer temporary access restriction by direction of the minister will allow for the restriction to be maintained for a period long enough to obtain the approval of the Governor where necessary.

Mr TEAGUE: As I understand it—this might be an exception to the approach for the balance—there is no change to the inspector's capacity to hold up for 10 days; all clear. We now have an extension for practical purposes for the minister to make a direction for up to three months. That is to permit the practical capacity for the Governor to make a more permanent, long-lasting direction. The question in the broader context is: why not just give the minister that power across the board? Is there some consideration of the government on that front? What work is there still to be done in terms of involving the executive and so on?

The Hon. S.E. CLOSE: The way the act will work is that the ongoing restriction, the restriction of access to a site, is considered to be such a weighty decision that it ought to be elevated to the level of the Governor approving. The 10 days is something that an inspector is able to do, but it is recognised that frequently, if it were to need to be an ongoing restriction, 10 days is not sufficient for that evidence to be gathered and for the Governor to be able to consider, and therefore the minister is able to extend that to three months. It is not considered appropriate—and I guess you could describe it as a policy judgement—to leave the ongoing restriction to being purely a ministerial decision. That does rise to the test of being better done through the Governor.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 13 [DeputyPremier–2]—

Page 11, line 25 [clause 18(8), inserted subsection (2a)(b)]—Delete 'section 20A(3)(d)' and substitute 'of section 20A'

This is a consequential amendment.

Amendment carried; clause as amended passed.

Clause 19.

The Hon. S.E. CLOSE: I move:

Amendment No 14 [DeputyPremier–2]—

Page 12, line 10 [clause 19(6), inserted subsection (1ab)(b)]—Delete 'section 20A(3)(d)' and substitute 'section 20A'

I note that this is another consequential amendment.

Amendment carried; clause as amended passed.

Clauses 20 to 29 passed.

New clause 30.

The Hon. S.E. CLOSE: I move:

Amendment No 15 [DeputyPremier–2]—

Page 15, after line 19—Insert:

30—Amendment of section 46—Regulations

Section 46—after subsection (2) insert:

(3) The regulations may—

(a) be of general or limited application; and

(b) make different provision according to the matters or circumstances to which they are expressed to apply; and

(c) make provisions of a saving or transitional nature consequent on the amendment of this Act or the regulations; and

(d) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of a specified person or body.

I think this is the last of the amendments. This amendment would expand the regulation-making power in the act to support subdelegation of matters such as prescribing sites, objects or remains to which various provisions apply, if necessary, to ensure the new provisions operate as intended.

Mr TEAGUE: What we are concerned with here in this final amendment is an amendment to section 46 of the act, which at present provides there are two subclauses. This amendment would add a third subclause. The two subclauses at present are:

(1) The Governor may make such regulations as are contemplated by this act or as are necessary or expedient for the purposes of this Act.

(2) In particular, the regulations may prescribe penalties not exceeding $2 000 for the contravention of, or non-compliance with, a regulation.

Now we are seeing this extra particularisation of those regulations, in that the regulations may—it seems to me that 3(d) is the most interesting of them, but this is in the recently acquired part. We have capacity for the regulations more particularly to now, in 3(d):

provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of a specified person or body

Presumably that would be a senior officer of the department or someone of that nature.

Apart from drawing attention to the fact that this is an amendment that is particularising the nature of the regulations that might be made, and I might have just picked that by way of example, can the Deputy Premier indicate to the committee and for the purposes of the record the reasons why it is desirable to be more particularly providing for regulations in this way—including, perhaps, with direct reference to 3(d)?

The Hon. S.E. CLOSE: I will attempt to explain this. The view was formed by parliamentary counsel and AARD that this is such a complex bill, with potentially so many working parts when you are on the ground, that it required a flexible regulatory mechanism to be able to capture all of the different circumstances that might require different approaches. There might be sites of a certain sort that are within existing Aboriginal sites; there might be objects that would largely be considered to be part of a burial ground but might be found somewhere else. Being able to delegate, say, to a chief executive to be able to make a decision that that forms part of a continuous site, or not, enables the flexibility that might be required to be reasonably agile facing the complexity on the ground.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water, Minister for Workforce and Population Strategy) (20:20): I move:

That this bill be now read a third time.

In so doing I thank the member for the committee stage, which I hope was informative not only for the chamber but also for future readers of Hansard to understand the mechanisms of the act. I particularly thank the advisers who have sat in the box and also done a briefing in the middle and come back in. I really appreciate the work they have done to get this to this stage; I think it is a good piece of legislation and I am very pleased to have had a small part to play.

Mr TEAGUE (Heysen) (20:20): I rise to indicate that, in the circumstances in which the amendments have come to my attention and eventually to the opposition's attention just today, I am cautious, and I hope appropriately so, in terms of indicating that the opposition will determine its support or otherwise of the amendments the subject of [Deputy Premier-2] that have been received today, and we will take the opportunity between the houses to do that.

I expect that will not be something that will require in the usual convention such a rush as to be determined in the course of this sitting week. It may be that that view more particularly can be expressed when those amendments go to the other place.

Bill read a third time and passed.