Bills

Waite Trust (Activities on and Use of Certain Trust Land) Bill

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: Yesterday, in the course of my second reading, I flagged that a short committee stage would afford the minister an opportunity to reassure the committee and inform South Australians about what the practical limited scope of the minister's discretion here will involve. I raise that at clause 1 because what we see in the preamble, combined with the operative provisions of the bill, actually on its face grants the minister a really very wide discretion. In circumstances where this is a variation of the trust established by Peter Waite and his wife in the interests of promoting agriculture, this is clearly a development in the interests of the Sturt Football Club for the enhancement of their sporting capacity that will have flow-on educational benefits for Urrbrae Agricultural High School. It is a word of reassurance about what will be the practical purpose for which the minister will exercise discretion, pursuant to these changes.

The Hon. B.I. BOYER: Thank you member for Heysen. That is a very fair question. I think I understand your question and would characterise it as the bill providing not insignificant discretionary powers for the minister and where might that discretionary power be used outside of what is actually prescribed in the bill.

My answer is that on the works which are prescribed in clause 4, if they are done and then there is a fault or remediation works, I am told the discretion would be available to me to provide for people to go on and remediate or fix the faults in the original build. That is envisaged as the breadth of the discretion insofar as it would be used by me or any future minister.

Mr TEAGUE: I appreciate that. That is of benefit to the committee and I think informs the debate. Just to be clear, we are at clause 1 but I will indicate that when we get to clause 3, the key defined term is 'designated land', which is actually the entirety of the Waite Trust land as I read it. Then we use that defined term in clause 4, where the bulk of the relevant activities to be undertaken on the designated land relate to the installation of various fixtures, which are quite well specified in subparagraphs (i) and (ii) but, on the face of it, other than the limiting factor that they are to be activities 'by or on behalf of the Sturt Football Club Incorporated', it is very clear that they relate to the entirety of the trust land and include:

(iii) any other activity approved by the Minister or prescribed by the regulations;

That is where I am coming from.

The Hon. B.I. BOYER: I can tell you that the area of land will be defined by the plan deposited in the General Registry Office that is identified by the minister as the Waite Trust Designated Land Plan, by notice in the Gazette.

Mr TEAGUE: Just to be clear then, we have to anticipate what that designated land will be exactly, do we? Because as I read it, on the face of it, that looks like it is the whole trust land, and the prescribed land is the definition that I have not referred to, which is the more particular land to which the works are going to relate.

The Hon. B.I. BOYER: Thank you for clarifying, member for Heysen; I think I better understand your question. The specific site upon which the works will be done will be determined by planning work still to be done by the football club. They are holding off on that, waiting for this to pass, because they do not want to, I assume, go down that path and potentially incur that cost if approval is not given.

In answer to your broader question around the piece of land encompassed by the explanation I gave prior to this one, that is not the whole Waite Trust. The plan that will be deposited in the General Registry Office will more precisely designate the land in question. It will be used for construction, storage of building materials and whatever extra portion might be needed for the workforce to get on and off those premises in terms of entrance and egress.

Clause passed.

Clause 2 passed.

Clause 3.

Mr TEAGUE: We have two definitions, both of which are still to be determined. The first is 'designated land'. We are told that designated land is going to be a specified subset of the land, as yet not quite fully determined, but it will be where the relevant works are conducted. Then we have 'prescribed land'. We see prescribed land dealt with at clause 4(2), but I wonder if the minister might indicate what the purpose of the two definitions is. What is the designated land on the one hand and what is the prescribed land on the other?

The Hon. B.I. BOYER: The designated land referred to in the bill refers to the school land that we use during the construction phase of the project, where certain facilities and amenities will be installed and constructed to upgrade the oval. The construction phase of the project will occur in two stages. The exact area of land required for the construction phase will be determined once the builder is engaged.

The prescribed land referred to in the bill is an area of school land that will be used by the football club when it is not in use by the school, in accordance with the long-term licence granted by the minister. This exact area of land will be confirmed when the construction phase of stages 1 and 2 is completed.

Mr TEAGUE: Just to be clear in an ordinary sense, because these areas are yet to be determined on the face of the bill, and it will be uncertain about the scope of the designated land in the first place—my first proposition was that that might contemplate the entirety—is it, therefore, that the designated land is going to include the land that is temporarily required in order to facilitate the construction works and then, once the construction works are all done and the builders all go away and presumably rehabilitate whatever they were working on, what you are left with is lights and sound, scoreboard, playing field, and so on? That is the prescribed land and that is going to be the subject of licence to Urrbrae?

The Hon. B.I. BOYER: Yes, that is right. I will try to describe it in a different way. It is essentially the oval, plus a little bit of land essentially at the fringes that might be needed for the storage of building materials and for workers to come on and off, or maybe toilets for those workers, and then once the project is done those bits that are outside the oval specifically will no longer be part of what is prescribed. It will be limited to, essentially, the way that you characterised it: scoreboard, oval, lights.

Mr TEAGUE: The bookend question then is—and here we are, I appreciate we are close to the end of a parliament and so on—why do we not have an annexure: here is the designated land, here is the prescribed land? If the answer to that is: this is where we are up to, we are legislating, we are not quite ready to designate and we take it on trust a bit, okay, you could live with that if that is actually where we are at, but is there any substantive reason why the designated land and the prescribed land could not or should not be identified now?

The Hon. B.I. BOYER: It is essentially because a builder has not been engaged yet, and that work has been held off pending parliament's consideration of these changes to the trust. What I can say is that in terms of the document that I will be required to lodge there will be, I understand, more specificity in that around what the area will be. It is certainly not the whole land, and I tried to characterise what it is just before. We are in a position where, if we went down that path and started incurring costs, that would come out of the bucket of money that has been set aside to do the project. There is then, of course, a valid risk that parliament does not approve this and all we are left with are some expensive plans that cannot be enacted.

Clause passed.

Clause 4.

Mr TEAGUE: I would perhaps just say this for the record: we have to contemplate the possibility that the builder that is chosen says, 'I could do it really much more efficiently if I could just access that driveway coming from this side of the block rather than'—as the minister has described—'these sorts of incremental parcels that might be immediately surrounding.' There is, I presume on the face of the way in which we are proceeding here, the possibility that the government is reserving to itself the possibility that a builder comes along and says, 'I really need to have access in a way that nobody has predicted and therefore it might involve setting aside an unexpected parcel or a circuitous route from one part of the property to another,' or something of that nature. Is it fair to say that the government is just not anticipating anything like that at this stage, and can the minister provide any further reassurance?

The Hon. B.I. BOYER: I can offer reassurance there. I am told a fair bit of work has been done around, as you framed it, the fact that other roads could potentially need to be used. I am told that it is only a couple of roads coming off Cross Road to the east and west that we believe will be needed. We have not looked at whether or not there is a scenario where other roads might be needed. We do not believe that will be the case, I have a pretty high level of certainty around that, and I am happy to offer that reassurance here.

Clause passed.

Clause 5.

The Hon. B.I. BOYER: I move:

Amendment No 1 [EduTrainSkills–1]—

Page 4, lines 7 and 8—Delete 'or a licence granted under this Act'

The government is proposing an amendment to clause 5 regarding immunity from liability. I am told it is a technical amendment. The amendment narrows the scope of the immunity from the liability provision so that it does not extend to the person who is granted a licence under the act.

We received advice that such an extension would be inappropriate and that the licence is a separate contractual arrangement. The immunity from liability provision should only apply to persons who are responsible for the proper operation of the trust. So what we are proposing under this amendment is to delete 'or a licence granted under this Act' from clause 5, page 4, lines 7 and 8.

The CHAIR: So you are moving the committee adopt the amendment; any further debate on that?

Mr TEAGUE: I anticipate supporting this amendment and I read it as applying to both parties to the anticipated licence agreement.

The Hon. B.I. BOYER: I might just get you to clarify that question if you could, member for Heysen, my apologies.

Mr TEAGUE: There is going to be a licence granted to Urrbrae Agricultural High School and that is under clause 4(2) as I read it. That is so they can use the prescribed land when the Sturt Football Club is not using it. That licence is going to have to be granted by the licensor—and there is a question as to exactly who the licensor is—but by carving out the licence, as the minister says, it is a separate agreement on terms. I was not meaning to be raising anything unusual, just to say that there is no immunity from liability that applies to one party to the licence.

The Hon. B.I. BOYER: The licence would be granted to the football club, not the school. So the arrangement is that the football club is allowed to use the oval when the school is not using the oval, so it would be the club seeking that licence in this case.

Mr TEAGUE: We have got the high school licensing to the football club, is that right? It is to be used by the football club when it is not in use by the high school—it was the other way, you got it in reverse. So they are the parties to the licence agreement and they are both not immune from liability for anything arising from that agreement, I presume, is the effect of the proposed amendment.

The Hon. B.I. BOYER: The advice I have is that upon the drafting of the bill we never intended to have licensees liable for breach of the trust, but the advice that has led to this amendment is that it could give rise in the current wording for that, so we are seeking to clarify that so that a licence and such individuals who are granted a licence would never be liable for breach of the trust.

Mr TEAGUE: But they could, so there could be, as a result of the amendment. All I am trying to get at is that the licence will be issued, I guess, by the minister for and on behalf of the school to Sturt Football Club, a private incorporated body, and that will be on terms that will be valuable for both parties.

I can see there are obvious ways in which the licensee might be in breach of the licence but the minister, on behalf of the school, might similarly breach the terms of the licence if access was restricted contrary to the terms of the licence and so on. All I am really getting at is to be clear that that removal of the immunity as a result of the amendment will apply both ways. I think it is there on the face of it but if the minister can address that it might be helpful.

The Hon. B.I. BOYER: Yes, the scenario that you painted where perhaps the school does not provide access to the football club under the arrangement we have here when they should or the club accesses it outside of those times will be dealt with in a separate licence outside of the act. The advice we received was that this process and the amendment of the act here was not designed to do that bit; that will be done outside of that and this is just to amend it so that use can be permitted in the first place. But there will be something in place to, I guess, licence that arrangement so if one of those parties is not doing the thing that they have committed to doing, there is some process.

Amendment carried; clause as amended passed.

Remaining clause (6), preamble and title passed.

Bill reported with amendment.

Third Reading

The Hon. B.I. BOYER (Wright—Minister for Education, Training and Skills, Minister for Police) (16:21): I move:

That this bill be now read a third time.

I thank the member for Heysen for his very good questions and the opposition for their support. I thank the member for Kaurna for having carriage of this last night. It is good to see we have found a way through this and I am looking forward to having those new facilities there for Sturt Football Club pretty soon.

Bill read a third time and passed.