State Development Coordination and Facilitation Bill

Committee Stage

In committee.

(Continued from 4 March 2025.)

Clause 23.

Mr TELFER: Obviously, we are in the middle of going through the different steps for the process. We have already previously talked about the coordinated project aspect and the designated project. Clause 23 talks about the state development areas. Clause 23(2) provides that the minister may make a recommendation for a state development area based on:

(c) the protection, conservation, ecological restoration, climate adaptation or enhancement of the environment.

If clause 23 applies to economic development, how exactly does such a clause encourage economic development? We do not oppose the goals outlined by the clause but merely want to understand the existence of such a clause and how it is consistent or otherwise with the other goals of the bill.

The Hon. S.C. MULLIGHAN: My advice is that that particular subclause allows for the creation of an area of land in order to provide some sort of environmentally appropriate offset for the purposes of a development. My advice is that that ability to be able to have an area designated for that purpose is consistent with existing planning laws but given a fresh voice here.

Mr Telfer: Is native vegetation separate to this type of development?

The Hon. S.C. MULLIGHAN: That is my understanding, yes, but I will see if I can get some further particulars. Yes, it is, primarily for the existing types of native vegetation offsets that we are currently familiar with in the current planning regime.

Mr TELFER: I think my question here probably flows from that a little bit. It is well understood in regional areas the challenge of dealing with the Native Vegetation Act, the additional costs, the additional obligation. I hope that within the process here there is an opportunity to be able to not necessarily circumvent that process but at least try to streamline it and make it so it is not such an economic burden on potential developers. Clause 23(3) states:

The Minister may not make a recommendation that a specified area of land be established as a State development area if any part of the area of land is within a protected area.

Given the Native Vegetation Act, which does not apply to the Adelaide metropolitan area, why does this clause exist given how widely regional South Australians probably view the Native Vegetation Act as a handbrake, as a roadblock, not only on economic development but on community safety as well in many circumstances?

The Hon. S.C. MULLIGHAN: My advice is that this relates to areas which already have a significant level of protection under existing either laws or planning determinations, and that includes, for example, the Adelaide Parklands, the Arkaroola Protection Area, or national parks in particular.

Mr TELFER: And not necessarily under the Native Vegetation Act. The thing I have appreciated about this process is that it is such a substantial piece of legislation being constructed, with the way we are going about it. In particular, the bill seems to be silent on cross-border mechanisms. Given the opportunity that may exist in cross-border zones projects, there has been a lot of talk previously with my colleagues in the South-East, both local and state government, on the Green Triangle; for instance the Riverland potentially could have involvement in that sort of cross-border zone project potential. Are there any mechanisms in the bill, for instance, through the declaration of coordinated projects for addressing cross-border complications such as differing legislation and additional agencies, other state government relations?

The Hon. S.C. MULLIGHAN: My understanding is that, earlier in the bill, at clause 10, there was a function of the Coordinator-General to be able to cooperate and negotiate with other jurisdictions, for example, for the purposes of carrying out their overall functions, to facilitate the consideration of applications under the act. To extend the example that I gave last time we were discussing the bill, overall the purpose of the Coordinator-General is to provide a coordinated one point of contact approach for an applicant to deal with the state government, and then by extension having that statutory officer or their office being able to undertake those same discussions with, in your example, interstate jurisdiction agencies on their behalf as well.

So rather than dealing with the four or five state agencies, to give the example, the Coordinator-General does it for them, that also means they would not have to be dealing with eight or 10 once you consider, for example, the Victorian or the Western Australian or the Northern Territory or the Queensland or the New South Wales jurisdictions as well.

Clause passed.

Clause 24.

Mr TELFER: This clause, Functions—projects generally, gives the capacity for the CGO to vary or specify time periods relating to certain functions. Clause 24(2) provides:

(2) A section 24 notice must not apply a time period to the performance of a coordinated function, or specify a period within which a coordinated function is to be performed, unless the period applied or specified is a period ending at least 20 business days after publication of the notice.

Why is a section 24 notice limited to such a lengthy period of time, rather than such a function being able to be undertaken in a shorter period?

The Hon. S.C. MULLIGHAN: The purpose of the bill, generally speaking, is to try to hasten planning processes, which often can take months. Specifying a period of not shorter than 20 days I think indicates the desire for some of these planning functions or assessment functions to be undertaken more quickly but strikes a balance with not being so hasty as to be unreasonable or frivolous in dealing with the matters.

This also countenances processes, including consultation periods or other periods of liaison with the community or other agencies, and a period of 20 business days (or four business weeks) is not an unreasonable minimum period of time for there to be an adequate consultation process.

Clause passed.

Clause 25.

Mr TELFER: Clause 25 talks about the designated function that a CGO may call in. I draw the minister's attention to 25(7)(e), which provides:

(e) in a case where the designated function is the making of a recommendation or giving advice to a Minister under the designated Act and CGO makes the recommendation or gives the advice (in accordance with this section) to the relevant Minister, that Minister may make the decision to which the recommendation or advice relates without regard to any matter relevant to the making of the recommendation or giving of advice (and any requirements of the designated Act in relation to the making of the recommendation or giving of advice are taken to have been satisfied for the purposes of the relevant Minister's decision).

My question is on what basis is a minister entitled to basically ignore advice and disregard all CGO submissions in making a decision? Why does the advice of the CGO assume no weight simply because the CGO provides advice on the designated function? This is a bit of the conversation that we have had in previous weeks, really. What is the point of a CGO if a designated function allows the minister to basically completely ignore the recommendation of the CGO?

The Hon. S.C. MULLIGHAN: I thought your question was going to be whether I thought one comma was really sufficient to break up an eight-line clause. My advice is that the subclause allows a minister, in making their decision, to be able to make that decision without needing to strictly follow that act's procedural requirements on how the advice or the recommendation is to be given. So in the context that the Coordinator-General is assuming some of the functions of different agencies across government that each have their own legislative procedural framework for considering applications, given that the purpose of the Coordinator-General is to not only deal with but to try to expedite those processes, this clause ensures that the minister is able to do that in a way which is not necessarily consistent with those procedural requirements.

Mr TELFER: With a substantive clause like this, taking into consideration not just whichever current minister is going to be in charge of this but future as well—it certainly piqued my interest, it is fair to say. I am also interested in how the CGO will gather the expertise and information necessary to make decisions that are usually made by state and/or local government bodies. For example, the bill gives the CGO the power to call in powers exercised by a council in relation to the subdivision of land. When a council performs its planning functions, it is not just thinking about the business needs of a particular developer or a particular project but must take into account the needs of the local community—not just in the short term but in 50 years down the track, potentially.

So if the CGO has called in expertise—its council planning powers, for instance—how can we be sure that the CGO in its decision-making on a project as a whole is taking into account considerations for some of that core community function which may be involved in a potential project: parks and gardens, street lighting, footpaths, on-street parking, etc.? I have written down a whole big list, but you get the idea—some of the basic community infrastructure that decision-makers at the local government level are making sure they put proper planning into when considering developments.

The Hon. S.C. MULLIGHAN: As part of the process of calling a function into the remit of the Coordinator-General, first the original designated entity must be consulted with. In the example that you give about local government, there would need to be a consultation with local government. There would also be the ability—for example, with state government agencies that have a fairly technical lens that they place over applications, such as the Environment Protection Agency or Energy and Mining or coastal protection, etc.—for the Coordinator-General to have the capacity to call in resources from that agency to assist with this.

I should also point out that it is conceivable that there will be occasions on which local government will be looking to offer up the consideration of an application rather than have to do it themselves, because of how either complex or resource-intensive it would be for them to try to do it. I guess the fail-safe with this is again that the minister has to be the ultimate decision-maker after the consideration has been made.

In the same way that the local government entity has a keen mind as to how the developments can impact their local community and what impact it will have for ratepayers or local amenity or environment, etc., that is also a similar lens. As a minister responsible to the house and as one of 47 members, the minister has to carry that responsibility of understanding how a development approval or rejection is going to impact a particular community where that development is proposed to be based as well.

Mr TELFER: Obviously, we are surmising and presuming, perhaps, the sorts of projects which could be included in these sorts of projects, but the legislation is relatively broad in looking at what future potential projects there could be. In calling in a power, is the CGO required to consider and weigh up concepts like the public interest?

These potentially very broad powers that the CGO has could, potentially, override legislation or regulation, potentially override the views or the wishes of many experts or qualified persons in both state and local government. Should the bill contain an overriding requirement for the CGO to consider and weigh up the public interest more broadly? Could the CGO call in a power and exercise it in a way that results in that sort of obligation? That perspective, I think, is an interesting one.

You talk about the different departments that may be called in for the perspective, but the public interest is something which, I guess, at elected member level is something which is the responsibility in the end. Is it the same answer? You say that the final decision sits with the minister. Is that the same sort of obligation you see, as far as that broader public interest?

The Hon. S.C. MULLIGHAN: The Coordinator-General has to consider the responsibilities under each of the acts which are still relevant to how that development is assessed for that particular purpose. Using the examples I mentioned before—the Environmental Protection Agency or Energy and Mining—they have a structure around how they consider applications relevant to them, and that still has to be applied. It is just applied by the Coordinator-General rather than the client agency in that respect.

Overarchingly, to get to the broader context of your question, back in clause 4 we canvassed the primary principle about why a project or an application would be considered by the Coordinator-General or the minister. It has to consider the economic, social and environmental outcomes of the project, both for the state as a whole and also for the locality. There is an obligation, I guess, at the granular level in terms of the application of existing requirements, that that overarching primary principle applies about how those three outcomes—economic, social and environmental—apply locally and also for the benefit of the state. I used the term 'lens' before, but that layering of the considerations that have to be undertaken by the Coordinator-General means that it is very thorough but, importantly, one of those lenses is the local impact across those three different domains.

Mr TELFER: To some degree it is getting down to finer detail, but as to the concept more broadly, could the CGO call in a power and exercise it in a way—when we are looking at a local government area, for instance—that results in an ongoing cost for a council? For example, could the CGO approve the construction of a community wastewater scheme (CWS) in a manner that required the council to pay for the operation and maintenance cost of the wastewater facility?

Unfortunately, throughout the state SA Water do not have to deal with all the wastewater; it is often the obligation of a local government entity and the ratepayers and the fee payers that go with that, if there is an extra obligation that is created because of the CGO calling it a power of construction—wastewater, but also stormwater. If the CGO approved stormwater pipes that were too narrow and then they had to be replaced for bigger pipes, once the obligation of the original design and delivery of the project is completed and the responsibility for that ongoing infrastructure is in place—often it could be for a local government area—who covers that cost? Who bears that cost if a council is required to increase its rates as a direct consequence of a decision of the CGO? Would the council be able to seek recompense from the Treasurer, for instance?

The Hon. S.C. MULLIGHAN: It is a good question, because the examples that you give are ones which are contemporary, I think. We are spending almost literally an unimaginable amount of money fixing the CWMS in Tea Tree Gully. That is a good way of demonstrating how, for example, the approval of perhaps quite a significant housing development might have costs in the future.

That is currently the case and it will no doubt continue to be the case. I would like to think, though, that the obligation to consult with local government in the first instance, if they are otherwise the entity that should be considering the matter, will provide an opportunity for that local government entity to ensure that its concerns are heard and raised.

Secondly, in that context, knowing that you are in receipt of advice from the council saying, 'Well, if this thing gets approved, we estimate we are up for X, Y and Z costs per annum over a 30-year period,' I would surmise that that would heighten the obligation on the Coordinator-General and their office to ensure that the way in which the development or the application is being put for consideration takes that into account and has some sort of mitigation, or it might indeed be an obligation that is dealt with between the proponent and the council. I cannot stand here and say that this will ensure that if it would otherwise be dealt with by a council, if it is going to be dealt with by the Coordinator-General that it will not have any extra costs.

As we see with housing developments, councils are very, very quick to complain about how much it costs to pick up the bins. Without exception, they never raise the fact that for every new household there is a fresh council rate notice which generates four quarterly payments of council rates into their coffers. It is a valid argument, but it is an argument that has two legitimate sides to it as well.

If we get outside the housing context, you are right: the councils continue on with their campaign of wanting to levy new charges or council rates onto electricity generators, for example. In my view, in the middle of what is described by them as 'a cost-of-living crisis', coming up with a new impost on electricity generation costs I would not have thought was the most opportune time, but that is a matter for them, not for me.

I understand that those arguments will continue to be put, but there are also developments, for example, which may occur in communities. The member for Hammond is very familiar with what goes on in his electorate, whether it is through Big River Pork, for example, let alone all of the other food manufacturers and primary producers. Yes, it will have an impact on the council area, but it will have a corresponding strong economic impact as well, providing jobs and economic activity and opportunities for families living in those council areas.

Within all of those examples is that initial obligation to consult as well as the inherent burden that comes with taking on this responsibility to make sure that you get it right, particularly when you are getting that feedback, both during the initial advice and the mandatory consultation periods from local government, for example.

Mr TELFER: I have a supplementary under that one, with your leave.

The ACTING CHAIR (Ms Stinson): Sure.

Mr TELFER: I get the two different sides, because I have seen firsthand both those different aspects. As a local government entity, you do not want to be the one responsible for an obligation for your community in the future. In conversation with the CGO through the consultation process they could be setting a bar like this for infrastructure, where they expect not just currently but also for the medium and long term the project will require that level of infrastructure.

The CGO will be having to develop a recommendation, which in the end will go to a minister. This is where we started with the bill and the challenge for a role like this is not to be politicised. In the end there is going to have to be a decision-maker, who will basically come in and set a service level, a standard of construction expectation. Is it once again the case that the CGO will go through the consultation process with all the different agencies, including local government, and then make a recommendation to the minister, and the minister will make the final decision on whether they are satisfied with that service level or infrastructure investment level?

The Hon. S.C. MULLIGHAN: I understand the point you are making. I think you are right to make the point about a development which is being considered by the Coordinator-General, which is going to have a really significant impact on a local government area, and the council is jumping up and down about it because they are worried about those impacts, whether they are economic, social or environmental. They are promulgating publicly that they are concerned because, for as far as they know, there is not yet sufficient mitigation of those impacts on their community.

That is going to rest heavy on either the Coordinator General in providing their advice to the minister or the minister in making the decision. They will make that decision in the knowledge that if they do not take into account the concerns that local government has raised then they can expect to hear about it, and potentially feel the political effects of that when the next cycle comes around.

I think the structure set up in the bill, where there is a requirement for consultation and there are the existing planning considerations and processes that remain in place but I just bought into somebody else's responsibility rather than local government's in this concern, means that all of those issues should be ventilated in the same way that they would otherwise have been. If there is an unacceptable impact—economic, social or environment—or there is a burden created, then that would also create the opportunity, if not some form of obligation, for the Coordinator General, and subsequently the minister, to only give an approval in recognition of that burden and whether there have been some mitigating strategies put in place.

This is just as comprehensive a process as the existing regimes—except, hopefully, a bit quicker and a bit a bit easier to navigate for proponents. But it is not just as comprehensive, it is potentially more thorough, because you have more sets of eyes over it and the decision rests heavy with the minister. We have got the planning minister in the chamber at the moment, as disorderly as it is—

The Hon. N.D. Champion interjecting:

The Hon. S.C. MULLIGHAN: That's right; he is omnipresent, he is with us always, the planning minister. No-one in this chamber would understand better than he that when you are making the final decision you become responsible for all the characteristics of whatever that application is.

I am sure whether it is him or the previous planning ministers we have had in the proceeding four years, they all understand that it is their name that sticks with that. Just as we talk about, or have been talking, about infill development or the Mount Barker development, that is not usually personified with the name of the particular developer; it is usually personified with the name of the particular minister. We do understand that that responsibility rests with the minister, and I hope that means it enhances decision making rather than detracts from it.

Mr TELFER: Is there a risk or a danger that the accelerated process of the CGO will mean that there is not enough time to properly consider those future ramifications? I know we are talking hypotheticals here, but we spoke earlier in the debate about the developments that happened with the AUKUS arrangements, the significant long-term potential there. If you are streamlining a process without understanding all those different aspects properly, and I hope there is not that much fat in the current system that it is languishing for lack of effort, is there a risk that that streamlining process will mean there is not that fulsome consideration of those future costs?

The Hon. S.C. MULLIGHAN: It is a good question, because with AUKUS we tend to think of the Osborne shipyards, and no doubt when the shipyards are expanded—and I think the commonwealth says they will need to triple the size of the shipyards, triple it for the purpose of building nuclear-powered, conventionally armed submarines. That is a type of development that we have not had here in South Australia. Without putting too fine a point on it, they have to ferry out a nuclear reactor, they have to unload it off whatever the vessel is that has brought it to Australia and into South Australian waters and to Osborne, they have to put that thing on the dock and then they have to get it inside the boat and plug it in and turn it on.

Mr TELFER: It sounds very simple.

The Hon. S.C. MULLIGHAN: That is my understanding of the process, anyway, so I don't know what the fuss is. All the facilities, protections and safeguards that dealing with such a sensitive piece of kit will require are of course intense, but I come back to my earlier comment that we are using existing processes and placing them with another entity. Yes, they may be accelerated, but no step in the process will be missed and getting that balance right between stopping something dragging on for months or years and making sure that it happens but there is a minimum period of 20 business days means that there is adequate consultation.

Having said that, I used to represent the bottom half of Lefevre Peninsula when I first came into parliament and I am very aware that no matter the strictures of this bill, no matter the periods of consultation, no matter the minimum number of business days that have to occur, there are some people in the community who are deeply unsatisfied with the fact that we are undertaking this economic and industrial activity in our state and the provisions of this bill will never be enough for them. But I do genuinely believe that we have struck the right balance between it being thorough and open and consistent with current processes but expedited in a way that we can start generating this economic, industrial or other activity for the benefit of the state.

Clause passed.

Clause 26.

Mr TELFER: I refer to clause 26, 'CGO may impose, amend etc conditions on certain decisions'. Minister, I will cast your attention to clause 26(3), where it states:

(3) If the decision maker for a designated decision is a Minister, CGO may only act under subsection (1) or (2) with the approval of that Minister.

Again, for a theoretical, independent body, the minister does not necessarily retain a veto but rather the CGO has its hands tied on any direction relating to a minister, so what is the point of a CGO being in place if there is this provision where it cannot direct a minister where the CGO believes the minister is failing to meet project standards?

The Hon. S.C. MULLIGHAN: There are a couple of elements to this. One is that we cannot have an arrangement where the ultimate decision-maker is the minister and the CGO is issuing written directions to the ultimate decision-maker, i.e. the minister. We cannot have somebody who has the legislative authority to make a decision as the minister being bound or constrained or required to undertake a decision, or particular elements of that decision, by a statutory officer, otherwise there is not much point in the statutory provision of the minister being the decision-maker.

The second part is we also want to see through this bill that the CGO is acting consistently with how the minister will either want to consider the decision or make the decision. So, for example, you do not want the CGO to start imposing particular conditions that are required on the proponent, if they get an approval, that are inconsistent with what the minister wants.

You raised, for example, native vegetation offsets. You do not want a determination made about native vegetation offsets where the minister might take the view as, 'Actually, the offset has to be consistent with the scope and the scale of the development, and I am not sure that you have imposed that condition appropriately. You have not identified enough or you have gone unreasonably over the top,' for example. They are a couple of different ways of explaining why you would have those provisions as set out in the bill.

Mr TELFER: It is a bit circular, is it not? That is the challenge with this because the basis of the process is to streamline and try to make sure there is efficiency within it and having that independent lens over the top, but in the end, if a CGO is in a situation where they are having to be double guessing themselves, checking with the minister as far as processes go—I am not reflecting on any particular minister—things can sit for a period of time on the desk of a minister as much as anything. This is why I would take the answer that you have given in the perfect world, but this clause is a bit circular. Clause 26(7) states:

If a notice under subsection (1) is given to the decision maker, the decision maker—…

(b) must not impose a condition on the designated decision that is inconsistent with a condition that is directed to impose under subsection (1).

In the event of the decisionmaker and the CGO coming into a conflict or disagreement over whether a condition is inconsistent with another condition, where does the final say rest? Does the CGO retain the final say in the process itself? I understand the minister has the final say in the final decision, but as a process evolves and the CGO is developing a recommendation to go to a minister, where does that final say sit? Does it fall with the CGO or within the discretion of the minister?

The Hon. S.C. MULLIGHAN: Yes, it is a good question. If you go back to clause 26(3), the CGO can only act under subsection (1) or (2), that is, issue one of those notices or directions. They can only do that with the approval of the minister. It is not possible under the bill for the CGO to be issuing one of those written instruments unless the minister has approved it. I think that clarifies that the minister retains primacy in that arrangement.

Mr TELFER: I do not know if I will get to a question or not, but this is where we get down to the logistics of the process of this and the risk of politicisation, the risk of there being the best decision on an item that suits the political party or the electorate. You spoke before, when talking about the relationship with the local government area for instance, that the minister would wear the political blowback basically, potentially, so they are always accountable to that.

The reverse of that is that there could be the risk of the wrong decision being made for political reasons. Rather than the minister going too far with that process, they might hold back because of the concerns of that political process, so I think the CGO's independence is paramount. This is what you are trying to communicate, but in the end it is a political decision, not just at the end but through the process as well.

The Hon. S.C. MULLIGHAN: Yes, I think it is a good way to elaborate on that responsibility of being the final arbiter or the final decision-maker in the process because, whether it is the CGO or whether it is the Coordinator-General or whether it is the minister, that obligation remains the same. With the minister, there is a heightened level of accountability, of course, because they are responsible to the parliament as well as every four years electorally.

You have made a couple of references to the potential politicisation of it, but after your 30-year parliamentary career, once you tire of your frontbench duties, someone of your experience in representing local communities, understanding portfolios, etc., coupled with the fact that you have been a Local Government Association president and a mayor, might be a perfect candidate to be a coordinator-general, for example.

Mr Telfer: A glutton for punishment.

The Hon. S.C. MULLIGHAN: Indeed, a glutton for punishment. I do not think you should be too hard on our class, for example, of a person who might be undertaking that role because, in the context of the concerns that you have raised regarding these past clauses, it is arguably someone of that ilk that is going to be better placed to balance the competing interests and concerns about a proposed development rather than someone who is just very, very practised at administering the planning law.

When I articulate it like that, I am sure you are thinking, 'Yes, I know what those local considerations are, I know what the legislative considerations are, I know how I should be thinking intuitively about considering how to get that balance right between the different competing objectives.'

Clause passed.

Clause 27.

Mr TELFER: Clause 27 is about the review of certain decisions. Clause 27(11) provides that the decision-maker has power to do anything necessary to implement the CGO's decision—'anything necessary'. Given the obvious breadth of this clause, what limitations apply to the ability of the decision-maker to implement the decision of the CGO? There is no limitation and there is the power to do anything necessary.

The Hon. S.C. MULLIGHAN: I am advised that, in the event that a decision is made and then subsequently substituted, this provides the capacity for the decision-maker to implement the decision that is taken by the Coordinator-General. If there is any variance between the original decision and the substituted decision, this power is for the CGO's decision.

Progress reported; committee to sit again.