Bills

State Development Coordination and Facilitation Bill

Committee Stage

In committee (resumed on motion).

Clause 39.

The CHAIR: Member for Flinders, we are on clause 39, and you have had two questions.

Mr TELFER: If you cast your mind back to when we finished, the minister was halfway through an answer around—if you can remember, minister—a scenario that I put forward about a potential compulsory acquisition of land for an ideologically driven government on the environmental grounds of the CGO. That was my memory of the answer that you were halfway through.

The Hon. S.C. MULLIGHAN: I thank the member for Flinders for refreshing my memory. I have to admit, it is all turning into a blur of one blissful experience of clauses one after another. I think the point I was trying to make is it is readily conceivable that this is most likely to be agitated for either 39(1)(a) or 39(1)(b), and that if it was to be contemplated for 39(1)(c) 'a designated project', i.e. more likely a private proponent, it would be highly unusual that a landowner would find themselves subject to a land acquisition for a development which they were not otherwise a party to.

In response, the member for Flinders said, perhaps speaking with his experience as a member representing a regional constituency, 'What if there was an appetite for the purchase of land for ecological preservation-type endeavours?' That may qualify it for, I guess, one of those limbs under the state significance test, that environmental limb. Would it be of state significance or not? I guess it depends on what the quantum of land is that would be subject to that proposition and whether it was of genuine significance and relevance to the state, but I envisage it would be a very rare occasion indeed in that set of circumstances.

Nonetheless, if it did happen, then there are those protections under the Land Acquisition Act where, amongst other protections for the landowner, the government is required to pay for the property valuation services that the private landowner may need to inform them about what level of compensation they should be seeking as well as for their legal representation. The state would also be obliged to pay for that. Even in that context that the member for Flinders raises, with some justification, there are still inherent protections within this regime.

Clause passed.

Clause 40.

Mr TELFER: Clause 40 speaks about when the CGO may take over state projects. It is an interesting juxtaposition really because we have been talking about how the CGO does not have expertise in project delivery and the actual practicality of infrastructure delivery, it has a planning perspective and a lot of the regulations that go with it, but it is a responsible agency (whatever that might be) that actually delivers it. Under what circumstances do you see a CGO taking over responsibility for a state project? Can you give me an example of what sort of state project you think would be one that a CGO may take over the responsibility of?

The Hon. S.C. MULLIGHAN: My advice is I think it is particularly conceived of projects in relation to state development areas, for example, where the CGO has already done an enormous amount of the up-front legwork determining what the precinct is or what the area is and what the area will require in terms of enabling infrastructure, facilitating infrastructure and so on. It may be that it is applicable to a discrete state development, but it would only be in that case, of course, where either the minister thinks it would be of benefit for the CGO to do it, whether it is referred to it by the Governor on recommendation of the government of the day, or if for example the CGO takes over a particular planning function that would otherwise be done by something like the State Planning Commission. There is no particular development in mind that we have, but it is able to be applied both within the state development area as well as in discrete developments.

Mr TELFER: Just further on from that, we have spoken already about there being limited resources that the CGO will have. They will be leaning on the expertise for this sort of thing from other departments. What resources will the CGO have at their disposal if they are in the scenario of taking over a state project? A state project in its own identity is obviously one which is a priority of the government and one which, at least a portion of it, has been completed already by a state department or agency. What resources will the CGO have and under what circumstances will that transition occur?

The Hon. S.C. MULLIGHAN: I think I responded in reference to an earlier question towards the beginning of the bill that we will be making a budget allocation for the CGO in the state budget on the basis that, of course, the bill passes. So it will have its own resources, but again, it would have the capacity to draw on the resources of particular agencies that have their own functions relevant to a planning assessment of a development.

For example, if it is a state development it would probably call on some particular resources of the infrastructure department—potentially SA Water, the EPA, the environment department, as well as potentially staff within the State Planning Commission—in order to bolster its resources and make sure that in one area it has all the resources it needs to be able to consider all the facets of that development, (a) to make sure it has those resources, and (b) to expedite the consideration of the process and give it either a yes or a no to proceed.

Mr TELFER: Minister, can you perhaps summarise what you see as the difference between a project that has received major project status from the government, which as a concept is about doing just this, streamlining processes and making a priority area for the state under that major project status, versus a project where it has been decided the CGO will take control of it? Are these two concurrent processes? Obviously, you have given many additional powers to the CGO through this process. How does that compare and contrast with the major project status versus what the CGO will be enabled to do?

The Hon. S.C. MULLIGHAN: It is a really good question because on the face of it you would think: is there not already the capacity to be considering developments through that mechanism rather than through what we are proposing here? The major development declaration and process is quite different from this. It is very thorough, of course. I will stand corrected, but my recollection is that a project which has a major development declaration has to have an environmental impact statement, for example, which is an incredibly detailed environmental assessment that has to be produced and published and made available, which usually takes many months to put together.

The other difference is that the major development status project is considered through largely the existing regimes of a central planning agency with appropriate references to and discrete decisions from agencies around government. So there would be the going out and sourcing that information and a particular decision from the transport department, or from either the energy and mining department of that electricity infrastructure or perhaps the infrastructure department of that other enabling infrastructure, the environmental considerations from those agencies, water from SA Water, and so on. It is still that kind of central but satellite process that is not too dissimilar to the regular planning process as we know it today.

Indeed, certainly planning ministers in the past have said that the irony is that proponents used to race to get a major development declaration without realising that it could often procedurally be a veritable tar pit to wade through—it was incredibly onerous and cumbersome. Contrast that with this process, where it is not a satellite arrangement but a centralised arrangement, and all the powers are brought to within the function of one entity, which is the CGO, enabling all those existing legislative provisions still to be exercised and those processes to be followed. But they are all exercised and followed by the one central unit, which means that it is done in a more coordinated, timely manner and is vastly more likely to give a quicker decision—yes or no—to the application.

Mr TELFER: Minister, you talked about the major project status and how proponents are sometimes scrambling to get this declaration because they may see that there is an advantage to their project. With that satellite process—which you were talking about in regard to a major project status as opposed to a centralised one—do you think now with the CGO process there is going to be (and it probably reflects the debate we had probably a month ago) a scrambling from proponents advocating to not just the CGO but to the minister in charge, whoever that may be, to have the designation or declaration within one of those three aspects of the CGO process to be made?

If you see there is going to be a particular advantage for projects within this process, do you think there is going to be a potential scrambling? This is where we talk about trying to understand the resourcing component of the CGO. If this process is so much more streamlined than a major project status, do you believe that effort is going to be reflected in the amount that is trying to get this determination from the CGO?

The Hon. S.C. MULLIGHAN: Conceivably. I think industry generally has welcomed this reform, particularly because of what it promises in terms of more expedient decision-making. They might scramble for it and make requests for it, but that is quite different from actually getting it. Again, it is the CGO who effectively calls it in and it is the minister or the Governor who designates it to them, and it has to fulfill those criteria at the beginning of the bill. So there are some procedural and also some legislative hurdles that a proposition has to jump over. That is not going to stop a developer from saying, 'I want to carve that 900 square metre block in Seaton into three and build some townhouses.' It is not going to stop them from making the calls—

Mr Telfer interjecting:

The Hon. S.C. MULLIGHAN: Yes, that is right. Those requests will still happen, no doubt, but it is not likely that calls like that are going to get much consideration at all, because it does not meet the criteria of the bill. It is only likely that a CGO is going to be calling it in in practice, I think.

We have not discussed this during the committee stage more recently but we did earlier. Take the example I gave before about my electorate, or I should say the council area that my electorate falls into, the City of Charles Sturt. They have the WEST development—and I know that happened a couple of years earlier—which is the Port Adelaide Wastewater Treatment Plant redevelopment, the Metcash redevelopment at Kidman Park, and what the government is now doing at Seaton in redeveloping the public housing. Those are four really big, quite complex planning propositions forward.

After the planning minister usually gives their code amendment insofar as it is necessary, then the council will sit down and kind of nut that out with the proponent: where are the streets going in the middle of it, what is the density, where is the open space, and so on. But if you have all of those balls in the air, then the council might proactively request that it gets called in by the CGO so that their dance card is not quite so full and they can deal with the regular business that a council of that size would normally have in terms of planning applications.

So it may be that, for good procedural reasons, there are other bodies that ask the CGO to take those roles on. But in terms of an individual proponent going to the CGO saying, 'Can you please shove mine through your process rather than through the regular one?', they have some reasonably high hurdles to jump over in terms of the characteristics of the project in order for that to be considered.

Of course, it may be that, by the time this is implemented, if it passes the parliament and is established and staff recruited and that sort of thing, this government or a subsequent government might say, 'These are the things that we think are the most important'—there might be one or two state development areas and a couple of other projects that are of state significance—'get cracking with those.'

Even when a council quite legitimately says, 'Do you know what? We haven't got the bandwidth to deal with this. Can you take it on?' the CGO might say, 'I am sorry. If you want it dealt with quickly, you are going to have to do that because we don't have the capacity. We have a full dance card.' Unfortunately, the proof will be in the pudding. We will not know until we see this up and running, if indeed it passes the parliament.

Clause passed.

Clauses 41 and 42 passed.

Clause 43.

Mr TELFER: This clause, minister, talks about disallowable notices, consultation and publication. Clause 43(2) states:

(2) Before a disallowable notice is published, the person authorised to make the notice must, in accordance with any requirements of the regulations, consult on the notice for a period (of at least 10 business days) determined by the person with any entity (including, for example, a council) the person considers would be affected by the proposed disallowable notice such that the entity should be consulted.

I am curious, minister, why this period of consultation is set at half of the length of the majority of the other consultation periods within this bill, being 10 business days rather than 20, which has been what most of them have been throughout the rest of the bill.

The Hon. S.C. MULLIGHAN: That is a good question. Those other consultation processes of at least 20 days are for a normal type of consultation that would occur in the course of a planning assessment process. This is something quite specific, though. This relates to disallowable notices. They are Gazette notices made under the act that propose either a modification to, or an exemption from, an existing legislative requirement in relation to a declared project to be done on a once-off basis. This would be a notice that basically says that in order to consider this the CGO must follow all of the existing legislative processes that would otherwise be in existence under that act, whether it is the Mining Act or some other act that facilitates the approvals of particular developments.

But a disallowable notice can ask for a provision of that act or part of that process not to be adhered to, stepping away from that process. The existence of this clause is to try to provide some transparency and accountability so that that is not used as some wholesale mechanism to walk away from what those existing processes are and subvert the existing planning process. So it is making sure that it is gazetted in real time—again, that sort of transparency—and making sure that there is a period of time for those entities that would be interested in that gazettal notice or interested in that development, giving them at least two weeks or 10 business days to consider whether they are okay with ignoring that particular provision or whether they think it is a problem for them. I think that is really important.

It does not need the same amount of time as every other period we have spoken about to date in the bill—like you made reference to—but it does need a reasonable period of time, if the council says, 'Well, hang on a minute; you can't issue one of these disallowable notices for that part of the process; that's really important to us for X, Y and Z reasons and we need to be able to formally submit that to the CGO for their consideration before they move forward with that.' Similarly, I am advised that the minister has to concur with those disallowable notices as well. So there is kind of an external and internal check on that use of the disallowable notice by the CGO.

Clause passed.

Clause 44.

Mr TELFER: This clause relates to parliamentary scrutiny of the disallowable notices. Clause 44(2) provides:

The minister must cause a copy of a disallowable notice and the related report to be laid before both houses of parliament within six sitting days after publication of the disallowable notice.

I am curious as to why the period of time stipulated is six sitting days rather than three, given that a six-sitting-day timeframe can permit a minister to avoid tabling the notice for anything up to a month during sitting periods and three weeks on the back of a seasonal adjournment.

The Hon. S.C. MULLIGHAN: This clause was actually inserted into the bill post consultation. There was a request from one of the consultants: I do not have in front of me exactly who sought this change, but there was a request that not only would there be the gazetting of the notice and the consultation period but there needed to be a higher level, public level of scrutiny, so tabling something before parliament would be desired.

We have picked up the timeframe which, I am advised, is consistent with most other regulatory notices over which parliament has scrutiny. I would say the existence of this clause shows, firstly, how effective the consultation around this bill has been and, secondly, that we have just tried to pick up a regular way that parliament has scrutiny over these sorts of things.

Mr TELFER: Clause 44(4) provides:

A resolution of a House of Parliament is not effective for the purposes of subsection (3) unless the resolution is passed within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the disallowable notice was laid before the House under subsection (2).

On this basis, why can the parliament delay a disallowable notice for potentially up to six months if the notice is tabled at the right time—or wrong time, as it were?

The Hon. S.C. MULLIGHAN: That is a good question. Again, we are advised that these are the same times that apply to the disallowance of regulations, and we were advised that this bill should not derogate any of the parliament's powers in respect of being able to disallow these sorts of actions. Remember, the disallowable notice is notifying the public—and in this case the parliament—that a legislative provision is not going to be adhered to.

Conceptually, if the parliament has required that there are provisions in order to consider a particular application and the CGO is saying, 'No, I'm going to publish a notice saying that I don't have to follow the law,' then the parliament, the lawmakers, should have the capacity to be advised that that is the case and have the capacity to disallow it. We have been convinced that that is an appropriate check and balance on the use of these notices.

Mr TELFER: Just on from that, obviously the regulations put forward are considered by the Legislative Review Committee. That process has been pretty fulsome in the surety that there are parliamentarians specifically tasked with looking at this as well. Do you think that would be something which would be replicated for a resolution such as this? What sorts of enhancements to the process do you envision?

The Hon. S.C. MULLIGHAN: My understanding is that, in the same way the Legislative Review Committee reviews all regulations tabled or at least has the opportunity to review them all, it will be the case for this as well.

Clause passed.

Clause 45 passed.

Clause 46.

Mr TELFER: Minister, clause 46(1) states that a regulated applicant must:

…provide any report, information or material of a kind prescribed by the regulations in accordance with the requirements prescribed by the regulations.

Neither the clause nor the section stipulate a timeframe for the provision of a report to the CGO. Why is the timeframe left to regulation rather than legislation?

The Hon. S.C. MULLIGHAN: This is information which is being provided to the CGO by the applicant, so inherently they are motivated to do it as quickly as possible if they want the CGO to consider their application in a timely manner. We have not thought that, in that respect, it is necessary to prescribe a period of time. The applicant would be creating a rod for their own backs, figuratively speaking, if they were to delay providing the CGO with information that had been required of them.

Clause passed.

Clauses 47 to 50 passed.

Clause 51.

Mr TELFER: Clause 51 obviously is the aspect around the annual report. This will be a pretty important couple of lines in this piece of legislation because, as you said, there will be a lot of eyes watching this at the parliamentary level but also part of the interest in this will be with industry and other decision-making bodies as well. Clause 51(2) states:

(2) The Minister must, within 12 sitting days after receiving a report under this section, cause a copy of the report to be laid before both Houses of Parliament.

Why is the period of 12 sitting days considered necessary? To take this year as an example, an annual report is prescribed in clause 51(1) on 30 September, which is the last day permitted for an annual report to be submitted. The minister can choose to only table the annual report on the final sitting day of the year, for instance.

The Hon. S.C. MULLIGHAN: This is a standard provision that exists across many pieces of legislation about the requirements for an annual report and the tabling of the annual report. It has been the custom, I think in all the time that I have been a member of parliament, that the parliament has usually sat for a minimum of 12 days, and often 15 days, across October and November. That ensures that it gets tabled each year.

I would also add that there are standard contents for every annual report published by government agencies or published pursuant to legislation that require certain information to be provided—so not just a statement of what the organisation is, but what they do, what they have been doing for the past 12 months, what they plan to do for the coming 12-month period, as well as standard financial information, human resources information, expenditure on consultants and contractors, advertising services and so on.

All of that is going to be of particular interest to the CGO, given that in previous clauses we have spoken about the need for not just other agencies to provide some staff and resources to support the CGO, but the CGO might engage their own consultants, for example, to undertake works to better inform them as they are going through the decision-making process. So that will be important for the parliament to understand what is being done by the CGO in order to consider these applications.

Mr TELFER: Obviously, this is creating an entity that has a lot of interest, as I have said, but also a lot of responsibility. Within the annual report itself, do you envision that there will be a thorough setting out of all the decisions that have been called in by the CGO and an explanation around the reasons for these decisions?

The Hon. S.C. MULLIGHAN: My advice is yes, also bearing in mind that at each stage of the process the CGO will be gazetting these notices as well. So hopefully the existence of the annual report further reinforces that transparency.

Mr TELFER: Does the minister expect that the annual reports for the CGO will also set out a summary of all declared coordinated projects or declared designated projects or declared state development areas or facilitated projects at summarisation?

The Hon. S.C. MULLIGHAN: I think so. It will just be a question of, as I said, the minimum requirements for an annual report that are provided to the parliament. On my understanding, that includes the activities of the year that has been completed and a forecast or an estimation of the activities that are to be completed in the coming financial year. So at the very least, for those matters that you referred to for those two years, we would anticipate that being the case and that should hopefully be sufficient to capture the entirety of the CGO's activities. Whether that extends further into the past or is able to project further into the future I guess we will have to wait and see.

Mr TELFER: Or a combination of both, potentially. The only other aspect that is important to get clarification on, and whether it be included in the annual report, is the schemes that are created pursuant to schedule 3, which we have not got to get. In relation to those schemes and the associated scheme coordinators, do you think that this is something that will be included, and is there an expectation that this is included within the annual report as well?

The Hon. S.C. MULLIGHAN: That largely refers to schemes, such as an infrastructure scheme, and we would anticipate that if it is not captured in the CGO's annual report it may be because it has actually been determined by, for example, the planning agency. If that is the case, it is most likely to find its voice in their annual report rather than here. But it would be a component of the overall application that had been considered by the CGO, and the existence of that application and the work that has been done on it would be referred to in the annual report.

Clause passed.

Clause 52.

Mr TELFER: Clause 52 talks about regulations and fee notices. Treasurer, what new government fees are contemplated under the proposed subclause 52(4)?

The Hon. S.C. MULLIGHAN: The concept of fees has been considered by government. This just provides the capacity to charge a fee. The government will have to make a determination about what that fee structure looks like. That determination has not been undertaken yet or completed.

I think there are two things, if I could foreshadow how the government is going to approach the setting of fees. One is we would probably want to charge a fee so that the CGO does not get clogged up with frivolous or noncomplying applications, but to balance that we do not want to be charging a fee regime that adds yet another layer of cost to the process. So we will be trying to strike the right balance that can tick those two criteria in setting whatever fees.

It is conceivable, for example, that if the CGO needs to undertake a particular investigation for the purposes of considering an application that might otherwise have been undertaken by the proponent themselves, that might mean that the CGO has the capacity to charge for that cost that is incurred. But we have to work that out; we have not settled any of that.

Mr TELFER: Obviously, the process that we have gone through over the last many sitting weeks has set out a number of different scenarios—ones where the CGO proactively takes control of projects, where local government submits that that process be considered, or a private proponent or a consortium of private proponents, really. Do you envision there will be a range in the fee structure? With the aspect here—which is very open: 'The Minister may prescribe fees for the purposes of this Act'—can I get an indication whether you see it as an administration fee, an application fee or a fee reflecting the amount of work burden that the CGO has taken on board to consider an application?

I think there needs to be a little bit of clarity because this is going to be something that eyes will be on and there will be local government areas, for instance, that will be keen to partner with the state government to put forward projects. I am not asking for a level, but can you categorise what type of fees you envision—application, etc., as I have said?

The Hon. S.C. MULLIGHAN: In terms of charging some form of application fee, I think that is what is being considered at the moment, because we need to send a price signal of some form that we do not want frivolous or utterly out-of-scope applications being made and clogging up or bogging down the CGO, so we have to have that mechanism. To go to the other extreme, I do not feel that we are looking at a full cost recovery, pay-as-you-go-type service.

Mr Telfer interjecting:

The Hon. S.C. MULLIGHAN: That is right. Bearing in mind that we are trying to provide something which facilitates more expedient decision-making, we do not want to be introducing a new layer of cost burden on proponents when they are trying to get developments considered. However, in the middle of that is we will have to have a reasonable regime where if the CGO has a huge burden of work to undertake for a proponent who has perhaps met the criteria of state significance and so on but there are a lot of investigations that need to be done and so on, there would have to be some regime that the CGO can enter into with the proponent about who is going to bear those costs which would otherwise be borne by the proponent.

I guess with the Treasurer's hat on, we have to protect taxpayers from having to subsidise the costs that would otherwise be incurred by a regular proponent in pursuing an application as well. But we do not have any of that detail sorted out. I guess the only two principles that I can affirm to the house are setting an application fee as a deterrent from frivolous applications, and not loading up the applicant with a whole new cost base which makes this process burdensome or financially onerous for them.

Clause passed.

Schedules 1 and 2 passed.

Schedule 3.

Mr TELFER: Minister, can you outline all the circumstances in which, as a result of the operation of this bill, the usual requirements of state or local government to consult communities on decision-making will be removed or restricted?

The Hon. S.C. MULLIGHAN: Can you repeat that question?

Mr TELFER: Yes, and I will give an example if you like. Can you outline all the circumstances in which, as a result of the operation of this bill, the usual requirements of state or local government to consult communities on decision-making would be removed or restricted? For example, in clauses 9 and 10 of schedule 3, a scheme coordinator can be appointed to develop a scheme, which details what infrastructure might be required, and then to deliver the scheme. Infrastructure is defined in schedule 3 to include parks, playgrounds, nature reserves, cycling parks, sporting and recreational areas, libraries, community buildings and multiuse local community facilities. My question is whether the usual requirements for consultation with councils and local communities when this sort of infrastructure is created are effectively removed by this bill.

The Hon. S.C. MULLIGHAN: My advice is that the external consultation processes that exist at the moment are not interfered with, so they will remain in place. There are impositions on the internal processes of considering applications within government. For example, if the CGO takes on that role, there are greater strictures around how long agencies have to respond to the CGO or that they have to make their own discrete determinations in order to allow for the consideration of an application. However, that is not the case with the external consultation processes.

When we are talking about community-type infrastructure like you have articulated, whether it is playgrounds, libraries, open space or whatever, all of that has to be located within the context of an overall development or declaration of state significance. In that context, it is likely to be part of a broadscale master planned housing development, for example, and those discrete considerations about where is the library going to go, is there enough open space, what about playgrounds—all of those external consultation processes—remain intact. They have a minimum of 20 days. What gets contracted is, I guess, the internal timelines and processes of government consideration.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. S.C. MULLIGHAN (Lee—Treasurer, Minister for Defence and Space Industries, Minister for Police) (16:41): I move:

That this bill be now read a third time.

Bill read a third time and passed.