Bills

Planning, Development and Infrastructure Bill

Committee Stage

In committee (resumed on motion).

The Hon. M.C. PARNELL: In relation to this amendment, I guess we were probably getting a little bit tired as we were getting towards the luncheon break, and I think the minister made the point first (and I made the point subsequently) that this was consequential on earlier amendments. In fact, none of it is consequential technically, but one aspect of it related to an issue that has been tested and defeated. My thought then was that I could move the amendment in an amended form and removed paragraph (g), which relates to the assessment of applications for planning consent. That has now gone from the charter, so any reference to that is probably redundant. That leaves paragraphs (h) and (i).

Before I formally move that, I had a brief conversation with the minister's staff, and the impression I got (and it can be corrected if I got the wrong impression) was that the government was sympathetic to both these elements, that is, the concept of routine publication and also the concept of, where reasonable, information being free, as a general principle. It was put to me that those might be more appropriate in other parts of this bill, such as in the section dealing with the planning portal.

Having heard the Hon. David Ridgway say that the Liberals were inclined to support my amendment, I am inclined to take the bird in the hand, but on the understanding that if it does become appropriate to pull it from this part and put it somewhere else, then we could do that. But as I have hunted through my amendments, I have not actually replicated these in the other sections. I am certainly trying to be as reasonable as I can. I would like the committee to approve the insertion of these two paragraphs here, but my commitment would be that if it turns out that there is a more appropriate place to put it in the bill later on then I am happy for it to be shifted later.

Given that the Liberals, very sensibly I think, did agree that at least (h) and (i) were appropriate, then if I seek the leave of the council to move my amendment in an amended form, namely, that only paragraphs (h) and (i) be included in the amendment. By leave, I move:

To delete all paragraphs except (h) and (i).

The Hon. D.W. RIDGWAY: I would like to ask the mover a couple of questions and then, if he is unable to clarify, the government may be able to provide some clarity. I spoke earlier about the wonders of modern technology where people are listening to this in their offices and sending me messages. As we left for lunch, I received a message about this clause. They were concerned that information that would be published could possibly be commercial-in-confidence (about particular developments or subdivisions) and so they were concerned that that information should not be published.

That is why I sort of, not officially, but indicated to the Hon. Parnell a minute ago that I am uncertain about this amendment. The government is saying it is probably inclined to support it, or other parts of the bill. Given that there is some concern with some stakeholders, at this point in time I indicate that we will probably not be supporting it. Nonetheless, we are happy to work with the mover and the government when we come back to this in February. Again, this is an example of how rushing the bill this week has not been a good thing. We can actually have a look at things in a more measured time frame.

The Hon. M.C. PARNELL: In direct response to the Hon. David Ridgway's question, I absolutely understand his concern. His concern relates to the paragraph that I just deleted. I can see why people would have thought that was a problem. The paragraph that I am no longer moving be inserted talked about members of the community having access to the same information available to the relevant authorities that are making the decision. If the relevant authority has confidential information available to it, then I can understand why people might think, 'Well, maybe we don't want the community to have access to that same information.' Having removed that paragraph, that issue has now disappeared. Paragraph (i) just refers to information in its generic sense being routinely published.

I know for a fact this is the government's intention. They do want to put more stuff up on the portal so that people can take responsibility for pulling it towards themselves. I am hoping the government will create a notification service. We will come to that later on. So, there is nothing in (h) or (i) that raises the issue of confidential information because there is nothing in those paragraphs that enables or requires the publication of any information that would not have otherwise been published anyway. I think the honourable member's constituents were right, that was a concern, but having now pulled that paragraph I think it is safe for the honourable member to go back to his original position, which was that these are excellent amendments deserving of the support of the committee.

The Hon. G.E. GAGO: There are also protections in relation to clause 53 that prevent confidential information from going on the portal. We have a further amendment that reinforces commercially sensitive information not being divulged, or published, I should say.

The Hon. D.G.E. HOOD: Could I just clarify with the minister that the government is still opposing the amendment in the amended form?

The Hon. G.E. GAGO: Yes, is the advice.

The Hon. D.W. RIDGWAY: Minister, you are offering me some advice, that removal of paragraph (g) has removed the risk, shall we say, from this clause. Clearly, it will not matter whether I vote for it or against it: we are going to recommit this probably in February. Minister, you are giving me some advice, I think.

The Hon. G.E. GAGO: I am just answering your concerns about confidential information being published. I was reassuring you that, irrespective of the Hon. Mark Parnell's amendments, there are other provisions that prevent confidential information being published. I was trying to provide reassurance; I will not in future. The position in relation to the Hon. Mark Parnell's amendments is unchanged; that is, we are sympathetic to the issue but do not believe that it should be addressed here, and we are happy to look at it at recommittal or whenever.

The Hon. D.W. RIDGWAY: That is the first time I have heard the word 'recommit' come from the minister's lips, so I am pleased to hear that because, clearly, that is where we will be. I think from a safety point of view, from the opposition's perspective we will not be supporting the Hon. Mark Parnell's amendments today. Clearly, when he reads Hansard he will know that there is a fair level of sympathy for what he is trying to do, and if a better solution can be worked out between now and when we sit again in February, we will be happy to look at it.

The Hon. G.E. GAGO: Again, I will set the record straight. The Hon. David Ridgway is misleading the house. In part of my opening statement at the committee stage, I indicated that the government would be prepared to recommit. I made that quite clear from the outset.

The Hon. D.W. Ridgway: My apologies. I obviously did not hear that one.

The Hon. M.C. PARNELL: I do not need to delay the committee on this. I appreciate the minister's undertaking that the government is sympathetic and will look at this issue again. Whilst I have moved the amendment in an amended form, and I will vote on it, I will not be dividing on it.

The Hon. K.L. VINCENT: For the record, since the government is willing to look at this issue elsewhere anyhow, and the Hon. Mr Parnell has given some reassurances that this will not result in the revealing of confidential information, I think we may as well put it in this particular piece of legislation if the government is willing to look at the issue anyway. I appreciate that is not where the numbers lie, but I thought I would put it on the record that if we are going to do it we may as well do it now.

Amendment as amended negatived.

The Hon. G.E. GAGO: I move:

Amendment No 15 [EmpHESkills–1]—

Page 45, after line 23—Insert:

(5a) The charter must, in relation to any proposal to prepare or amend a designated instrument under Part 5 Division 2 Subdivision 5 that is relevant to 1 or more councils, provide for consultation with—

(a) if the proposal is specifically relevant to a particular council or councils—that council or those councils (unless the proposal has been initiated by the council, or those councils); or

(b) if the proposal is generally relevant to councils—the LGA.

This amendment addresses matters raised by the LGA and the opposition in another place. The effect of the amendment is to ensure that local councils, and the Local Government Association more generally, will be consulted in relation to the preparation of key instruments under the bill, including state planning policy, regional plans and the planning design code, design standards and infrastructure delivery schemes. These amendments reflect the local government sector's key role as a partner with the minister and the state government in the proposed new planning system.

The Hon. M.C. PARNELL: I support the amendment.

The Hon. D.W. RIDGWAY: The opposition will be supporting the amendment.

Amendment carried.

The Hon. M.C. PARNELL: I think this one probably does fall into the consequential category. I was keen for this citizens' charter to deal with development assessment rights as well as policy development rights, so I will not be moving this amendment.

The CHAIR: We are now on [Parnell-1] 21.

The Hon. M.C. PARNELL: This deals with the consequences of failure to comply. To a certain extent it might be consequential, and I will decide in a moment or two whether to formally move it or not. Part of the dilemma is that when it comes to public consultation—even though the minister has railed against prescriptive requirements in terms of numbers of days that notice must be given and the format of notice, and the minister has stated that it is overly technical—I think that those often numeric requirements, like number of days, are often very important.

The minister did say, when asked I think by the Hon. Dennis Hood, whether the charter was binding, the response was, yes, it was, and normally that would give people some comfort. If the charter says 'citizens must be given at least 10 days' notice of'—and then insert what it is they have to be given notice of—and the Hon. Dennis Hood asked, 'Is that binding?' and the minister said, 'Yes, it is.' But when we delved down a bit deeper the minister referred, if not by number by implication, to subclause (11) which basically says that if an entity fails to comply with the charter then there are certain things that the commission can do. The commission could do that thing itself and then recover the costs.

However, the big glaring hole through which a semitrailer can be driven is that if the failure is on the part of the commission itself—in other words if the commission fails to comply with some part of the charter—there is nothing anybody can do about it. The commission can be the cop and wave the stick over local councils if they are not undertaking consultation properly but if it is the commission itself that is at fault there is nothing anyone can do.

Having got that off my chest, my amendment No. 21 referred to 'consultation in relation to a particular matter'. There are two interpretations of that: one is that it referred to a development application, which we have now decided is not going to be part of the charter, but it is not actually confined to that: it is confined to any particular matter. What I had in mind were things like strict time limits. If there is a time limit put in the charter—for example, giving citizens a certain number of days to respond to a policy process that has been put out there—I think the government should stick to it. If we look at where that is to be inserted after clause 39, it is part of subclause (10) which basically says:

The charter does not give rise to substantive rights or liabilities and a failure to comply with the charter does not give rise to a right of action or invalidate any decision or process under this act.

It is actually the flipside of the coin to the Hon. Dennis Hood's question 'Is it binding?' If you look at subclause (10) it says, yes, but there are no rights that attach to it. In other words, if you do not follow it then you cannot do anything about it. When subclause (10) is read in conjunction with subclause (11) you realise that the commission is actually off on its own; it does not have to comply with the charter; nothing anybody can do can make it comply with the charter. What I have tried to do in amendment No. 21 is to claw back a little bit and to add the words to the end of subclause (10) which says:

Unless the failure is under a provision that requires compliance with the charter for the purposes of consultation in relation to a particular matter.

Maybe it is not phrased as well as it could have been, and I will take responsibility for that, but what I had in mind was that if there is a strict time limit, then that bit needs to be compulsory. Because of where it is included in subclause (10), what it means is that, if the commission, for example, was told under charter to give people 10 days' notice and it only gave them two days' notice, then this amendment would actually enable a citizen to go to the environment court, for example, and say, 'Come on, make them do it properly. They're supposed to give 10 days' notice and they've only given two days' notice. Make them go back and do it properly.' That is the scenario I am envisaging. It is basically putting a bit more grunt into this charter. It is not making every single component enforceable, but it is certainly making some of the mandatory requirements at least enforceable. Accordingly, I move:

Amendment No 21 [Parnell–1]—

Page 45, line 39—After 'this Act' insert:

unless the failure is under a provision that requires compliance with the charter for the purposes of consultation in relation to a particular matter

The Hon. G.E. GAGO: I oppose this amendment. It is fundamental to the intent of the charter that it does not become a lawyer's picnic and that is why, as we have indicated here, the charter is technically not enforceable—certainly not before a court of law—but, instead, compliance is subject to the oversight of and potential intervention from the state planning commission, and we have given examples of that previously, and the commission itself is subject to the minister's direction.

The Hon. D.W. RIDGWAY: A question to the minister: in the example that the Hon. Mark Parnell used where they were to be given, let's say, 10 days' notice and they did not comply with that, then what is the community's pathway to say, 'Hang on, this wasn't done properly'?

The Hon. G.E. GAGO: I have been advised that, for instance, if the complaint came to the commission in relation to a council the commission could then direct the council to go back and repeat the process again. If it didn't, it could conduct itself on behalf of the council and then charge the council for its efforts.

The Hon. M.C. PARNELL: To follow on from the Hon. David Ridgway's question, if it was the commission that was responsible for giving 10 days' notice and it only gave two, what could the community then do?

The Hon. G.E. GAGO: That would then be a matter for the minister, and the minister could make directions or use their powers in whatever way to overcome that problem or enforce a particular outcome.

The Hon. M.C. PARNELL: I thank the minister for her answer. I think we are struggling a bit here, because the minister does not have those powers that I can see. I do not think the minister has an overall power to—what: sack the planning commission; order them to do it? They are under the general direction and control but if they do not do it—well.

The point I am trying to make: I guess another way of looking at this amendment is that I have in mind that the charter will have optional and mandatory components to it. The optional components might be a description of best-practice consultation methods; it will offer a range of different ways that communities are best engaged in planning. In my view, I think the charter should include some things that are non-negotiable, and that might be something as basic as giving people a minimum amount of time, for example, because this committee has just agreed that the word 'timely' needs to be incorporated into the charter.

I would have expected that there will be some parts of the charter that are mandatory. Most of it, I think, will be best practice, advisory; some parts might be mandatory. The words in my amendment talk about a provision that requires compliance, and that is just another term for 'mandatory'. So, I think this amendment does some valuable work by ensuring that if something goes seriously wrong on an important matter, at least there is some comeback.

The Hon. D.W. RIDGWAY: I indicate that at this point in the debate, the opposition will be supporting the Hon. Mark Parnell's amendment. I am sure we will have some further discussions around it, but I do think it is important if the community has an expectation that things will happen in a time frame, or a particular activity will happen in a certain manner. As the minister said, of course the minister can direct or force the commission to do it, but how does the actual community get all the way to the minister to make the minister aware that they have had a brief? At this point in the debate, we will be happy to support that amendment.

The Hon. D.G.E. HOOD: We are now getting to the point in the debate where I must confess—I do lay some blame at the feet of the government for this, because we have done this in such a rush—that my preparation essentially ends at this point. We are now debating amendments in clauses that certainly I have not looked at closely—I cannot speak for others—because of the very limited time we have had to do so. As a result of that, I must say I do not have great deal of confidence about some of the underlying issues that are being presented here.

Certainly, I think at face value the Hon. Mr Parnell makes a compelling case; it does not seem unreasonable what he is asking. I have just got his hopes up and I am about to dash them. Unfortunately, we are not going to support the amendment, because—and this is where it comes back to preparation and time to prepare adequately—I do have concerns about supporting something where there are unintended consequences of it being supported and it not being in line with what we would generally support. I am not going to support this amendment, but I feel a bit uneasy about it, to be frank, because at face value it sounds okay. I only wish we had more time. We are coming back in February; we will have more time then. It sounds like we will be looking at this issue again.

The Hon. J.A. DARLEY: I indicate that I will be supporting the Hon. Mark Parnell's amendment.

The Hon. K.L. VINCENT: Dignity for Disability will also support the amendment.

Amendment carried.

The Hon. D.W. RIDGWAY: Just in relation to the subclause above the one we have just amended, (9). It says:

The Commission, or an entity acting with the approval of the Commission, may adopt an alternative way to achieving compliance with a requirement of the charter (including a mandatory requirement or a requirement prescribed by the regulations) if the Commission is satisfied that the alternative way is at least effective in achieving public consultation as the requirement under the charter.

I am just wondering what the intent of that is. Is that to perhaps accommodate changing technology? You used to use a carrier pigeon to get messages out, then you used mail; now we use email or text messages. To me, it is a clause that actually allows for an easy way out: rough enough is near enough. Can the minister explain what the intent of that clause is?

The Hon. G.E. GAGO: I am advised that yes, you are right. It is a way of providing authority for the charter to deal with matters that may not have been considered yet.

The Hon. D.W. RIDGWAY: As long as 'the Commission is satisfied that the alternative way is at least effective in achieving'. It is like a lowest possible denominator. It is just near enough, rather than a complete consultation. I am concerned that it is diminishing the level or the requirement for consultation.

The Hon. G.E. GAGO: No, it is not diminishing. It has to be equal to or better than.

The Hon. D.W. RIDGWAY: A further point: subparagraph (6), says, 'The charter must comply with any requirements prescribed by the regulations.' If they must comply with the requirements for regulations, then in relation to a consultation with an alternative method I am just concerned that there is a problem brewing there where you will adopt another way of consultation that does not comply with the requirements prescribed by the regulations.

The Hon. G.E. GAGO: Again, this simply provides a capacity for the government to provide further boundaries over and above those that are already there, and, as I said, particularly in relation to those issue that may not have been contemplated.

The Hon. D.G.E. HOOD: I have a question on subclause 44(11). This is quite an interesting subclause. It says:

(11) If, in the opinion of the Commission, an entity fails to comply with the charter—

(a) the Commission may direct the entity to comply with the charter…

That part sounds reasonable, but it is the next part that I have questions on, specifically. It says:

(b) if the direction is not complied with within a period prescribed by the regulations—the Commission may take any action required by its direction and recover the reasonable costs and expenses of so doing as a debt from the entity that failed to comply with the direction.

Can I ask of the minister what sort of circumstances are envisaged there? Specifically, my concern is that it sounds almost like an open cheque—'costs and expenses of so doing as a debt from the entity that failed to comply with the direction'. Under what circumstances might that be used, and what restrictions—what checks and balances—are on that not being abused?

The Hon. G.E. GAGO: They have to be 'reasonable costs', and although there is not a definition of 'reasonable', it is well established in statutes. It would be for the court to decide on a case-by-case basis what would constitute reasonable.

Clause as amended passed.

The Hon. G.E. GAGO: Can I just make some general comments in relation to comments that were made earlier on today. Earlier today the planning minister's office received a joint statement from the Property Council, the Urban Development Institute, and the Master Builders Association. I understand that the joint statement will be or has already been sent to all members of parliament.

We have heard a number of times the Hon. David Ridgway imply that there are many outstanding issues for the industry in relation to this bill, but this correspondence makes it pretty clear that this is in fact not the case. In the joint statement, industry states its view unequivocally and in one voice. As members would know, the opposition has filed amendments, as reported in yesterday's Advertiser, that will see elected members of councils restored to development assessment panels. This is in direct contradiction to the recommendations of the expert panel.

The government wonders who the opposition has consulted with in moving these amendments to restore elected members to councils. I wonder if they have asked industry groups if they would like to see elected members stay on assessment panels. I would love to know what the response was to the opposition from industry. I guess they will not need to keep guessing. The document puts the position very clearly:

It is our shared view that one of the most important reforms in this Bill is the removal of elected officials from panels. We oppose any amendments to water down this principle, as it is key to professional decision making—

The Hon. D.W. Ridgway: Which page are you reading? I have got it here.

The Hon. G.E. GAGO: Well, others might not have it in front of them—

streamlining approvals and promoting economic growth and jobs creation. Our collective members have countless examples of delayed or rejected projects that would otherwise promote economic growth, business expansion and job creation. This is a key reform for the State's economic prosperity.

The Hon. D.W. Ridgway: Where is this?

The Hon. G.E. GAGO: It is in the bottom paragraph of page 1. Yet, here we have the opposition trying not only to restore elected members to panels, but going further than even the Hon. Mark Parnell's amendment. Indeed, if we have to choose between the two amendments—and we will vote against both—the Hon. Mark Parnell's amendment at least is only a status quo.

The Liberals' amendment, however, I am advised, would wind the clock back even further by allowing councils to stack panels with a majority of elected members. The joint statement also criticises the opposition's position in relation to the Hon. Mark Parnell's earlier amendment concerning significant trees. They state:

…if these provisions become law, it will foreseeably result in households and businesses needing to obtain costly reports from arborists to secure Council approval to prune or remove diseased trees on their own property…

These types of expensive and unnecessary local government planning hurdles are exactly the kinds of reform the review into planning was aimed at addressing.

Can I say, in relation to these industry groups, they have really stepped up to the plate. Their views are clear and unequivocal. This joint communiqué makes it very clear that there are so few outstanding issues there should be no reason for this bill not to proceed with what they call 'prompt but due consideration'. If only the opposition would be willing to sit a day or so longer, we could easily address these remaining issues to everyone's satisfaction.

If not, I guess it will be the opposition who have ensured that the economic imperative industry has identified in this bill is delayed yet again. As I said, I hope that this sets the record straight. I think what the opposition have been trying to do is have a foot in both camps and be something to everybody. They have had a foot each side of the fence. My father used to proffer wonderful advice on the risks of—

The Hon. D.W. Ridgway: Your good National Party member father.

The Hon. G.E. GAGO: He was in the National Party. He was a very active and proud National Party member, as my mother has been in the past as well. I often used to help wipe the dishes on a National Party fundraising tea towel that frequented our place. Going back to my wonderful father's advice on straddling picket fences, he used to use more colourful language than I am able to in this place, but he would describe what one was at risk of, and it was about the placement of a picket in one's anatomy. I just remind honourable members that that is exactly what the Liberals are threatened with at this particular point in time.

The Hon. D.W. RIDGWAY: I just want to add to the comments. It is interesting that the minister decided to omit the little bit here about the urban growth boundary:

…our collective position is that we do not support the inclusion of a statutory urban growth boundary in the Bill due to the inflexibility of such a mechanism to respond to future demographic and economic changes. We commend the amendments passed in the Upper House on 8 December 2015 to remove these provisions.

It is interesting. The minister is happy to quote selectively from that correspondence. We have had some discussions with the industry, and I think I said from the outset that we wanted to talk further to industry. It has been pointed out to me, of course, that the local government amendments are at clause 78. Given we have about an hour and a half left and we are only at clause 44, I will be very surprised if we get to clause 78, and that was the point we made to the minister last week and why, when two weeks ago we were told there would be no optional sitting week, we actually had much more time to consider these amendments and, if you proposed an amendment, to consult over a longer period of time.

The government chose not to do that, and that is why I am delighted that we will be back here in February so we can have a closer look at it and, if there are some unintended drafting consequences, the opposition is never too proud to say that we will not look at what we have been talking about, and if we can come up with a better solution certainly we will do that.

The Hon. M.C. PARNELL: I have just received this letter in the last couple of minutes, and like the Hon. David Ridgway I was surprised that there were a number of elements of this letter the minister chose not to put onto the Hansard, in particular a paragraph which recommends that the bill be substantially reformed in relation to at least a dozen sections, some of which we have already passed. Under the heading 'Empowering the State Planning Commission', the letter reads:

As stressed in previous correspondence to Members of Parliament, it is our view that the State Planning Commission (SPC) should be empowered to have a greater role in decision making and shaping planning policy in South Australia than is currently envisaged in the Bill. We welcome a State Planning Commission that is truly independent and depoliticised. We further note that the Bill as presently drafted vests much power in the minister of the day, which runs contrary to the theme of professionalism and independence strongly proposed by the Expert Panel review. Accordingly, we recommend that clauses 17, 62-63, 77, 89, 102, 105, 106-107, 124-125, be amended.

I am thinking that maybe it is an invitation—the minister did not use the word 'invitation'—maybe she is inviting us, on the strength of this submission from these three bodies, to report progress, because clearly we have more work to do. We might get to some of these clauses and deal with them inadequately without the full wisdom of these submissions in front of us that we have only had for a short period of time.

The Hon. R.I. Lucas: Didn't the minister read that section out?

The Hon. D.W. Ridgway: No, the minister obviously forgot that section.

The Hon. M.C. PARNELL: Well, it's a long letter and maybe, to give her credit, it was probably an oversight. I don't know how many times we need to say this, but I am keen—

The Hon. D.W. Ridgway: I think that maybe the next paragraph recommends amendment as well, at clause 212.

The Hon. M.C. PARNELL: The Hon. David Ridgeway interjects that the next paragraph puts further amendments as well. So, the minister has come here suggesting that the Hon. David Ridgway has misjudged the pulse of certain stakeholders by suggesting that they are not happy. She has found a couple of provisions where they are happy, but then in the very same letter they give us this great litany of things that they are still not happy with.

Whilst we are only talking about three organisations, they are just some of the stakeholders. There is the Local Government Association and the Community Alliance. I do acknowledge Tom Matthews, who has sat through this entire debate—and all power to him—representing community groups so that he can report back to them on what has gone on. Was the minister inviting us to move a motion to report progress? If that is the minister's invitation, I would be happy to do so.

The Hon. G.E. GAGO: The government, as the Hon. Mr Parnell knows, is very keen to proceed to complete planning, and we will do everything in our power to do that. We know that the honourable members opposite and on the crossbenches do not support that, but we need to get on and make the most efficient use of the time we have left today.

The Hon. D.W. RIDGWAY: I will reiterate some of the comments I made this morning. If the minister wants to make the most efficient use of the time available, then certainly to deal with other government matters of business today, like Government House, youth justice and another couple that escape me at the moment, that would be a more useful use of the time this afternoon, given that we will probably only do another two, three or four clauses of this bill and have to come back in February to complete that business. I put on the record that I would not want the Hon. Martin Hamilton-Smith to be operating illegally as the Minister for Veterans, pushing down part of Government House and the wall—

The Hon. G.E. Gago: Concerned for his welfare, are you?

The Hon. D.W. RIDGWAY: Well, in fact it might be a good thing. What is the penalty for a minister acting illegally? Maybe we could get some recompense against him. Nonetheless, it does seem crazy that we will push through for another hour and a half or so when clearly there is some government business that some of the minister's colleagues will be disappointed does not pass this calendar year.

The Hon. G.E. GAGO: We will not be distracted from our mission. We will not be distracted from our number one priority. We will continue to try to deliver our objective, which is to complete the bill this year.

Clause 45.

The Hon. D.W. RIDGWAY: Clause 45(1) states:

Preparation and amendment of charter

(1) A proposal to prepare or amend the charter may be initiated by—

(a) the Minister; or

(b) the Commission acting on behalf of the Minister (at the direction or with the approval of the Minister).

I am just wondering—again, with the publication of directions—will that direction or the initiation, the reason for initiating an amendment, be published?

The Hon. G.E. GAGO: It would be unusual for letters of that nature to be published.

The Hon. D.W. RIDGWAY: A reason for amending, preparation and amendment of the charter, if there was a reason to amend it would that reason be made public? If it is about community engagement, the community engagement charter, then if you are going to amend the way you engage I would assume you would actually have to advise people that you are doing that.

The Hon. G.E. GAGO: The bill makes it quite clear what the process is. If the minister, under 45(1), 'a proposal to prepare or amend the charter', and it is listed there in (a), (b) and (2), the commission, after a proposal is initiated, must prepare a draft of the proposal, must consult, etc. So, the process for consultation for any amendment to the charter is clearly outlined.

The Hon. M.C. PARNELL: I do have some amendments to clause 45 and I will proceed to move and explain the amendments. I think there are two of them. I move:

Amendment No 22 [Parnell–1]—

Page 46, after line 15—Insert:

(ia) the ERD Committee; and

My amendment is quite simple. This clause deals with the preparation and amendment of the charter. In subclause (2) it mentions who the commission must consult with and consultation is to:

(i) any entity specified by the Minister; and

(ii) any other entity prescribed by or under the regulations.

I am just adding to that list the Environment, Resources and Development Committee of parliament, just putting them in there as a body. I appreciate that the government envisages that the ERD Committee will be consulted. The reason I know they envisage it is because of clause 46—Parliamentary scrutiny. Basically, it is the standard parliamentary scrutiny clause where, after a document has come into existence and come into operation (so within 28 days of adopting the charter it then goes to the ERD Committee), the ERD Committee then has the ability to object, not object or recommend changes. In other words, exactly the same mechanism that is currently used for planning schemes (DPAs).

When you look at clause 46(11) it basically says that if the minister has already consulted with the ERD Committee before it has been finalised then the committee does not have to deal with it twice. In other words, they can just accept that they have had that initial consultation and not go any further. I know that it was the government's intention to consult, but I think an important point is: when do they consult? Clause 46(11) simply talks about if the minister has consulted with the committee before the charter has been finalised—in other words, quite late in the process, not when the charter is first initiated but just before it has been finalised.

If we include a reference to the ERD Committee up-front in clause 45(2), that requires the consultation to occur after a proposal is initiated, in other words, at the very start of the process. Whilst the government intends that this committee of parliament will be involved at some level or other in the charter, either early or late, the default position is late.

The default position is that parliament gets involved a month after it has come into operation—that is the default position—but the government leaves the door open for earlier consultation. I want to make sure that the parliament is in at the ground floor, that the parliament has a chance to get involved right at the very start, and that is the purpose of my amendment No. 22.

The Hon. G.E. GAGO: The government considers this amendment to be a test clause for Parnell amendments 23 and 26, and later amendments 42 and 45, all relating to parliamentary scrutiny. We will treat it as a test, but we may need to come back to some parts of it. The proposition the government puts in this bill is to adapt the scrutiny procedures already applying to the Development Act and apply them to the charter and to each of the new statutory instruments that will replace the state's 72 development plans and planning strategy volumes.

In doing so, I note that this will see a significant expansion of what instruments parliament gets to see and, importantly, when it gets to see them. Parliament will in the new system be able to scrutinise through the ERD Committee the following matters: the community engagement charter, state planning polices, regional plans, the planning and design code, design standards and infrastructure and delivery schemes, and, of course, the environment and food production areas, which the government will be insisting on in the other place.

This is a significant expansion of the role of parliament in the system, but equally an expansion which is focused very much on the up-front end of the policy setting and planning processes. At the same time, we have also acted to ensure that the minister of the day has a distinct incentive to talk early to the ERD Committee before making instruments. All this is entirely consistent with the expert panel's recommendation and also with the submissions that the ERD Committee itself made to the panel.

The Hon. Mark Parnell wants to take this further and bypass the committee entirely. His amendments here to the parliamentary scrutiny provisions applicable to the charter and also later in relation to the statutory instruments would see the committee rendered to an afterthought and the real action devolved to the parliamentary floor. Inevitably, this will mean that decisions will be politicised, rather than the dialogue worked through between the committee and the minister. While we are willing to talk about the alternative models for scrutiny to work effectively, this is not a solution that will work in building multiparty consensus, which was one of the primary reasons the expert panel considered greater involvement in the parliament in the up-front policy setting process must in the new planning system.

I appeal to members opposite to think carefully of the consequences of supporting this amendment and further amendments (as I said, we will be using this as a test), and vote with the government to defeat this amendment.

The Hon. M.C. PARNELL: I thank the honourable minister for putting the government's position on the table. She said that this is a test clause. I do not accept that my amendment No. 22 is a test clause, but I do accept and I will go along with my amendments Nos 23, 24, 25 and 26 effectively being dealt with as a group.

The reason I say that is that my amendment No. 22 does nothing more than say, 'When starting the process of commencing a charter that's the time to let parliament know.' It does no more than that; it just simply says, 'Consult parliament; at least get it on the agenda of the environment committee of parliament at the implementation stage.'

The government, of course, could do that if it chose to because the list of people who are to be consulted are 'any entity specified by the minister and any other entity prescribed by or under the regulations,' so it would be possible for the government to pass a regulation and say, 'Make sure the environment committee of parliament is one of those to be consulted up-front.' However, we do not have the regulations and we do not have any indication of which entities the minister is going to specify; therefore, from an abundance of caution, we put it in the bill.

Most of what the minister had to say related to the remainder of my amendments, and she used words like, 'Mr Parnell wants to bypass the committee.' I will accept that language, and I have in fact used it myself. That is not to make the committee irrelevant because the committee is the vehicle for the community to come into parliament and have their say before a group of MPs as to what they think about what the government is proposing. But where this notion of bypassing comes in is that I want to treat this important document and other important planning documents in exactly the same way that we treat delegated legislation under the Subordinate Legislation Act.

What I mean by that is that, as all members here know, if we are not happy because constituents have said they do not like a particular regulation, for example, they can urge us to move disallowance. If we agree, we stand up in this place and we move a motion of disallowance. The way the legislation works is that if this chamber agrees that the regulations are out of order and ought be disallowed, then that is what happens—it is a simple process.

What I am saying in these amendments—which we will get to shortly, Nos 23 to 26—is that that is the mechanism that should apply for the planning charter. In other words: yes, send it to the environment committee; yes, let the environment committee call in witnesses to deal with it but also give the parliament proper scrutiny by enabling any member to get up in this place and move a motion of disallowance and, if they have the numbers, then that is an effective disallowance.

I am not going to repeat what I have said in the past about the limitations on the Environment, Resources and Development Committee but, as members know, it is a government-controlled committee that has never, in its history, recommended to the parliament to disallow something that the minister wants to happen—it is that simple.

In lieu of amending the ERD Committee, which is very difficult to do in this bill because in looking at the acts that are amended by this one we see that it does not include the Parliamentary Committees Act. We do not have the ability to go straight to the Parliamentary Committees Act and fix that up, so the best that we can do for the people of this state is to make sure that we regain the ability to do what people elected us to do, and that is to scrutinise delegated legislation and planning policy and documents such as this Citizen's Charter—to give them scrutiny and, if they do not stand up to that scrutiny, then we ought be able to disallow them.

That is what the minister was talking about. It is not amendment No. 22; that is a really simple one and I think we should just be able to agree to that one. However, amendments Nos 23 to 26 are, as the minister described, a way of direct democracy influencing the outcome of these important policies.

The Hon. D.W. RIDGWAY: I indicate that the opposition party room has considered this amendment and we will be supporting amendment No. 22. However, I think the Hon. Mark Parnell is right, that amendments Nos 23, 24, 25 and 26 are a different group of amendments and we will have a different look at those when we get to them.

The Hon. J.A. DARLEY: I will be supporting the Hon. Mark Parnell's amendment No. 22.

Amendment carried.

The Hon. G.E. GAGO: I move:

Amendment No 16 [EmpHESkills–1]—

Page 46, after line 15—Insert:

(ia) the LGA; and

As flagged earlier, it is part of 44. The amendment to clause 45 inserts a statutory requirement that the LGA is consulted on any draft of a proposal to prepare or amend the charter. This follows negotiations that the government has had with the LGA.

The Hon. D.W. RIDGWAY: The opposition is happy to support the government amendment to include the LGA, so that they must be consulted.

The Hon. M.C. PARNELL: I am conscious that I am disagreeing a lot with the government, so I do want to take the opportunity to say that this is a good amendment. I am very pleased that the government has seen fit to include the LGA, and we wholeheartedly support it.

The Hon. K.L. VINCENT: I put on the record that Dignity for Disability also supports the amendment.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 23 [Parnell–1]—

Page 46, lines 31 to 34—Delete subclause (5) and substitute:

(5) A decision by the Minister to adopt the charter or an amendment cannot effect unless or until—

(a) the charter or amendment has been laid before both Houses of parliament under section 46; and

(b) every motion for disallowance has been defeated or withdrawn, or has lapsed, in accordance with the scheme set out in that section.

I gave my explanation earlier as to why I think this is important. What I would just remind members of—and the minister alluded to this—is that this model that I am putting forward, of the parliament being able to directly disallow certain documents, appears in a couple of different spots in this bill, in my amendments.

This set of provisions, 23 to 26, only relates to the charter, so all people would be voting on is this model of the parliament being able to directly disallow. In fact, the other component that I think is also in here—and I do not think the minister mentioned this—is that the charter does not come into operation until all of this scrutiny has been finished. In other words, there is none of this 'bring it into operation' and then some months afterwards ask the parliament what we think about it when it is too late because it is already in operation. That is another component of this package of measures.

The point I am making is we will revisit this question when we come to other planning policies; for example, the Planning and Design Code, where I am proposing exactly the same mechanism. But it may well be that members support this mechanism in relation to some types of documents, but not all. So, I am just making the point that this set of amendments just relates to the citizens engagement charter, but I would urge members to support it.

The Hon. D.W. RIDGWAY: I indicate the opposition will not be supporting the Hon. Mark Parnell on amendments Nos 23, 24, 25 and 26. From my quick reading of them, and from the comments that he and the minister have made, they may not be consequential—they probably sort of are because they all relate to the same functions—so, I indicate we will not be supporting them.

The Hon. G.E. GAGO: We will be opposing this one.

Amendment negatived.

The Hon. D.W. RIDGWAY: I want to ask a question about amendment No. 25 in regard to subclause (3) and subclause (4). Subclause (3) states:

(3) The Commission must, after complying with subsection (2), prepare a report on the matters raised during consultation (including information about any change to the original proposal that the Commission considers should be made) and furnish a copy of the report to the Minister.

Subclause (4)(b) states that the minister may then:

(b) make alterations to what is recommended in the report and then proceed to adopt the charter or the amendment, as altered.

I am intrigued that the minister seeks all this information and then the minister can just alter it, if they choose. I do not understand how that makes any sense.

The Hon. G.E. GAGO: The answer to that is that if recommendations are made and the minister chooses not to adhere to those recommendations, the minister is obviously leaving themselves wide open to criticism.

The Hon. D.W. RIDGWAY: That is assuming the recommendations are made public, that the report that is furnished by the commission to the minister is made public. The minister might well be leaving themselves wide open for criticism, but it just seems strange that some of the previous clauses we have dealt with are around making sure that the community engagement charter is robust and that the charter must comply with any requirements prescribed by regulations; effective consultation.

It is, if you like, a reasonably robust process, and then we have a subclause to say that the minister can make alterations to what has been recommended in the report and then proceed to adopt the charter amendment as altered. It just seems a bit strange to have all of that framework around a really robust process and then the minister gets a report and says, 'I actually don't like that; I will just change it.'

The Hon. G.E. GAGO: It is certainly our intention that those reports would be public. I accept that there is no statutory provision for that, but that is our intention and we are happy to work towards that.

The Hon. D.G.E. HOOD: I just ask the minister, along the same lines as the Hon. Mr Ridgway, if the minister can amend the charter at his or her discretion, then is there a limit on how much can be changed? Can it be only a certain percentage? What restrictions, if any, are on the minister in those circumstances?

The Hon. G.E. GAGO: I am advised that I have just outlined that they would be subject to public criticism.

The Hon. D.W. RIDGWAY: But only if that initial report was made public. My understanding is that you say it is likely to be, but there is no requirement that it must be made public or it must be published.

The Hon. G.E. GAGO: I have indicated that that is an issue. I have acknowledged that that is an issue. I have indicated what our intention is. We have work to do between the houses. We have the second bill and we have the implementation process regulations, so we intend to make sure that we go back and pick up a range of these issues that we have not resolved as yet.

Clause as amended passed.

Clause 46.

The Hon. M.C. PARNELL: Amendments Nos 24, 25 and 26, I think are all to this clause. We have tested that issue, so I will not be moving those amendments.

The Hon. D.W. RIDGWAY: I take the opportunity to read a letter that has been provided to me from the president of the Local Government Association.

The Hon. M.C. Parnell: High level.

The Hon. D.W. RIDGWAY: Very high level. It has been written to the Leader of the Opposition:

Dear Mr Marshall

As you would be aware, the Local Government Association of South Australia has been a positive contributor to planning reform discussions for several years and has provided a comprehensive submission on the Bill currently before Parliament.

Our objective has always been to work constructively with the Government to achieve a better planning system. Recent discussions with the Minister have been productive and we have been pleased with the response to a number of key issues we have raised on behalf of the sector and communities that we represent.

However, there are a number of outstanding issues, particularly in relation to proposed infrastructure schemes, that would greatly benefit from more time and further discussion. We note that there [have] been almost 200 amendments moved in the Upper House—

I think, Mr Chair, it is even more than that now—

for debate, on top of in excess of 80 amendments the government has already made to the Bill.

Given the importance of South Australia transitioning to a world class planning system, we believe it is prudent to take the time to get the legislation right, and the consequences of poorly constructed legislation are significant.

For these reasons the LGA supports the Bill being finalised early in the 2016 parliamentary sitting schedule as this will enable all stakeholders the time for constructive input into the final Bill.

I appreciate your consideration of this matter.

Yours sincerely

Mayor Dave Burgess

President

I just put that on the record. While the minister likes to read letters that say that people want it and while the government's priority is to finish it this year, clearly the majority of stakeholders are saying that this has been rushed and it is time for us to actually take a deep breath and look towards 2016 to come back and do this job properly.

The Hon. G.E. GAGO: I move:

Amendment No 17 [EmpHESkills–1]—

Page 47, lines 20 to 24—Delete paragraphs (a) and (b) and substitute:

(a) resolve that it does not object to the charter or amendment; or

(b) resolve to suggest amendments; or

(c) resolve to object to the charter or amendment.

This is quite a minor drafting technical matter.

Amendment carried; clause as amended passed.

New clause 46A.

The Hon. M.C. PARNELL: I have an amendment that seeks to insert new clause 46A. There are two components to this amendment. The first component is consequential and it relates to the regime of parliamentary scrutiny and the charter not coming into operation until all the process was finished.

The second part of it is a different issue and it is very simple. It just says that the minister must ensure that an up-to-date copy of the charter is published on the SA planning portal and is available for inspection and downloading without charge.

I would be amazed if the government did not do that. I would have thought that it was exactly one of the things that the planning portal was designed to do. I move my amendment No.27 in an amended form, such that only the second proposed new subclause be inserted, not the original 46A(1):

Amendment No 27 [Parnell–1]—

New clause, page 48, after line 28—Insert:

46A—Publication

(1) The Minister must ensure that an up-to-date copy of the charter is published on the SA planning portal and available for inspection and downloading without charge.

The Hon. G.E. GAGO: The government is able to support this new clause in its amended fashion.

The Hon. D.G.E. HOOD: Certainly, Family First will support this as well. The most significant part about it, perhaps—correct me if I am wrong, the Hon. Mr Parnell—is the issue of keeping things up-to-date. The government does refer in the bill to including this on their portal, but I think the key aspect is keeping it up-to-date, which I think is common sense and we support it.

The Hon. D.W. RIDGWAY: I indicate that the opposition is also happy to support this amendment. I think it makes a lot of sense to keep that information up-to-date and available to the community.

Amendment carried, new clause as amended inserted.

Clause 47.

The Hon. D.G.E. HOOD: There are some interesting points in this particular clause, but I think the one that caught my attention most was subclause (3) where it talks about historical as well as current versions of documents being on the new SA planning website, and I just wonder to what extent. It really could be a terrific historical resource if the government was so inclined to invest in a substantial way.

There is no reason at all why it could not have all of the historical data, potentially back to 1836, on there, if possible. I suggest that is probably not going to be that easy, but I would just like to hear what the government's intentions are with respect to that. Was there a particular reason for including the word 'historic' in there, or is that really just to cover whatever may eventuate?

The Hon. G.E. GAGO: I thank the Hon. Mr Hood for his question about historical records. I am advised that it is because of the need to have that in response to court cases. If there is a dispute, for instance, that ends up in court, we have to apply the law as it was at that time. Therefore, it is important that we have those records. An example might be existing use rights. So, unless we have access to those historical records, we might lose the information about what exactly applied at the time.

The Hon. D.G.E. HOOD: Can I just say I think that is an excellent initiative, and I look forward to that unfolding. My next and final question on this clause is in respect of subclause (4)—I think I am asking this in the right part of this bill—which talks about all of the opportunity for feedback, etc., for members of the public by electronic means. I just want to seek some reassurance from the government that, although we are very much in an electronic age these days—and I think members in this chamber, except for the Hon. Ian Hunter, of course, are very comfortable with using the internet to express ourselves in one way or another—there will still be the opportunity for people who are not internet savvy to have those opportunities as well.

The Hon. G.E. GAGO: This is just a general provision. I refer people back to division 2, clause15 which outlines the general principles that agencies are required to work in a cooperative way with their customers. For instance, in clause 15(2) it says that a person or body performing, exercising or discharging a function has to exercise due diligence, act honestly and be accountable, etc. It is basically saying that it has to 'act in a cooperative and constructive way' in relation to its customers.

It is basically saying that, if a customer comes in and says, 'Well, I don't understand this form and I can't fill it out,' then we expect you to help them. If they are not computer literate and cannot do something online, then you are either expected to help them out online or provide an alternative. It is just that spirit of general cooperation and assistance to customers.

The Hon. D.W. RIDGWAY: I am interested in the cost of setting up and operating the South Australia planning portal. Is it just a modern website that needs to be maintained? Websites and portals are only as good as the information that is fed into them, and if they are maintained and kept up to date, so I wonder what the minister expects to be the ongoing cost of maintenance and the cost of setting it up?

The Hon. G.E. GAGO: We have made some mention of the anticipated costs, I think, in another clause.

The Hon. D.W. Ridgway interjecting:

The Hon. G.E. GAGO: Yes, it is. We have indicated that our preference is to buy an off-the-shelf package that we can then customise to meet our own needs. In relation to the set-up costs, we do not have detailed costings at this point; we will do that in future. I have indicated that it is likely that that will be the subject of a budget bid. We do not anticipate, however, that that will be hugely costly because, as I said, we hope to get it off the shelf.

In terms of maintenance costs, again we have not done any detailed costings; that will be done into the future. However, we do not believe that will be exorbitant, and we hope that will be able to be done within current budget parameters. I also bring to your attention that there is a cost recovery component, which we will deal with later in this bill. If there are large unforeseen costs, there is also the ability to make that subject of a further budget bid.

The Hon. M.C. PARNELL: I move:

Amendment No 28 [Parnell–1]—

Page 48, line 34—After 'information' insert 'and community participation in the planning system'

I have two amendments to clause 47. This first amendment adds a couple of words into subclause (2), which describes the purpose of the planning portal, and I want to include that, as well as the purpose of the portal being to facilitate the online delivery of services and information, the portal is to facilitate community participation in the planning scheme. I thought it was a fairly non-contentious additional set of words that say no more than the government says it intends to do with the portal anyway.

The Hon. D.W. RIDGWAY: The opposition will be happy to support the Hon. Mark Parnell's amendment No. 28 to this clause. I hope the minister is getting some instructions about adjourning shortly.

The Hon. G.E. GAGO: We support the amendment.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 29 [Parnell–1]—

Page 49, after line 10—Insert:

(5) The SA planning portal must also include a facility that allows members of the public to be notified directly about specified classes of matters or issues that are of interest to them (subject to any rules, requirements, restrictions or exclusions determined by the Chief Executive for the purposes of this subsection and subject to any determination of the Chief Executive as to the cost, practicality and viability of providing such a service).

I said before that it is the intention of the government, which I applaud, in the planning portal to include a facility to allow members of the public to make submissions and to provide feedback in relation to matters that are subject to consultation. That is what subclause (4) seeks to do. My subclause (5) is very similar, but different enough to warrant a separate subclause.

I guess the simplest way of describing the issue raised in my proposed subclause (5) would be that the planning portal should maintain a mailing list. That is at its most simple level. What I mean by that is that at present you go on to a website, you can find information, you can download documents, and there is often a 'make a submission' button, which you click on and you can put in your submission. That is covered by subclause (4), making a submission through the website. Often it is just a hyperlink to an email address—it is pretty simple.

But subclause (5) is a little bit different. I am asking for a facility that allows members of the public to be notified directly about specified classes of matters or issues in which they are interested. The shorthand way of that is a mailing list. A good example would be the government's own YourSAy website, where you can sign up to get an email notification that says, 'Attention: we've just added a new discussion paper onto our website.' It is really, really simple.

The current nuclear royal commission has a spot on its website where you click the button and say, 'Yes, send me email updates,' and they do. It is one of the most common methods of communication. The way I would see the portal working is that it could be something as basic as that, a single mailing list. Ideally, it would be a bit more nuanced and you could say, 'I live in the city of Unley, If there's anything that affects the city of Unley, please send it to me.' Basically, it saves people having to routinely and regularly visit websites in order to find stuff that interests them.

I do not want it to be so prescriptive that it is going to give rise to people making complaints, saying, 'Well, I subscribed to the Unley list, this came up and no-one told me.' I am not interested in making something justiciable like that, but I do think as a service for the community it would be an excellent initiative. The reason I say I am not being overly prescriptive is that this requirement for the facility is subject to any rules, requirements, restrictions or exclusions determined by the chief executive. In other words, the chief executive will determine the boundaries around which this facility will be used.

In my view, the portal is an excellent initiative, and I think it will be even more worthwhile in its objective of engaging people in the planning system if it enables people to have information pushed towards them on subjects we know they are interested in. I mentioned a geographic area; it could be to do with people interested in farming or agriculture and whether there are any changes that might affect them. I just think it is a logical extension of what the government is proposing to do, and I would urge members to support it.

The Hon. G.E. GAGO: The government agrees with this amendment. It is certainly our intent that the portal will feature a subscription alert-style service, and we think this amendment is important, as it ensures that this will be an ongoing service expected from the portal. I thank the Hon. Mark Parnell and acknowledge that this is a positive suggestion. We see it as a win for openness and accessibility.

The Hon. D.W. RIDGWAY: This is one of the amendments we had a close look at in the party room. We thought it had a lot of merit, but we were not 100 per cent certain. The minister has indicated she is supporting it; is that correct?

The Hon. M.C. Parnell: Yes.

The Hon. D.W. RIDGWAY: As I think I said earlier in the committee stage of the bill, a whole range of amendments have been put forward where we have not had the chance to have the discussion with the minister's planning staff. This was one we looked at and said, 'We think it makes a bit of sense. We're not certain.' Now that the government is prepared to support it, we will certainly be happy to support it as well.

Amendment carried; clause as amended passed.

Clause 48.

The Hon. D.W. RIDGWAY: Clause 48 relates to the planning database. It states, 'The Chief Executive is to establish and maintain an electronic database (the SA planning database).' For clarity, will that be part of the same portal we have just been talking about, a subset of it, or will it be a separate database?

The Hon. G.E. GAGO: The advice is that it will be accessible through the portal, but we cannot be completely prescriptive about exactly what elements might be available or not. It is a technical issue. There are technical requirements, so there might be some materials that do not lend themselves but, generally speaking, are accessible through the portal.

The Hon. D.W. RIDGWAY: The clause provides:

(1) The Chief Executive is to establish and maintain an electronic database (the SA planning database) that produces, by gaining access to—

(a) the state planning policies; and

(b) the Planning Rules; and

(c) any relevant land management agreements; and

(d) other instruments and documents as the Chief Executive thinks fit,

textual and spatial information that identifies the planning policies, rules and information that apply to specific places within the State under this Act.

So, I am just wondering, and it may be a bit difficult this late in the day, what do you mean that there is some technical stuff or technical limitations to what can be accessed?

The Hon. G.E. GAGO: It comes up in clause 50, so can we deal with it all then?

The Hon. D.W. RIDGWAY: Yes.

Clause passed.

Clause 49.

The Hon. D.W. RIDGWAY: They sort of all flow on, but this is around having an online atlas and search facility, again, I guess, as part of the SA planning portal. When is it envisaged that these will be operational? The portal, the database, the online atlas and search facility, will they be set there, ready to go and as soon as the planning commission and all the regulations are drafted in two, three, four years time, whatever it is, you flick the button and it is there, or will this be sort of an evolutionary thing, that that information is available over time and ultimately, when we have the planning commission and all of the regulations and rules drafted, it will already be in existence?

The Hon. G.E. GAGO: I am advised it will be staged and it will be staged parallel with the other implementation tasks.

Clause passed.

Clause 50.

The Hon. D.W. RIDGWAY: This is the clause, obviously, that I asked some questions about the technical issues around the state planning policies. Under 'Standards and specifications' it states:

(1) The Commission may prepare and publish standards and specifications that are to apply to or in relation to—

(a) the SA planning portal; and

(b) the SA planning database; and

(c) the online atlas and search facility.

What do they mean by 'standards and specifications that are to apply'? I would have thought they would be universal standards and specifications, they would not have to be peculiar to this.

The Hon. G.E. GAGO: Subsection (2) outlines the types of things that a standard or specification can cover, and it is true that we will not have to reinvent the wheel: rather, we will select the appropriate technical standard so that there are common operating protocols for everyone who wants to access the portal. The government already has an open data policy and, therefore, we are likely to be using the policies already developed for the portal.

The Hon. D.G.E. HOOD: I have a question on section 50(4) and relating to subsection (5) as well. I will start at subsection (5). It reads:

A person must not breach, or fail to comply with, a condition under subsection (4)(a).

Subsection (4)(a) talks about the chief executive having the authority to grant authorisation to a person to, essentially, amend documents. There is a very substantial penalty of up to $20,000 associated with a breach. Can the government outline the thinking behind that? It seems to be an extraordinarily harsh provision.

The Hon. G.E. GAGO: I am advised that the clause outlines the offence for false and misleading information, which is currently set at $20,000. This amount comes from the existing Development Act, so it is consistent with that. This section simply reflects a similar standard, in terms of the quantum, for a similar sort of offence—and that is altering documents that could result in misleading the public. It is an attempt at consistency across legislation and within this particular bill.

Clause passed.

Clause 51 passed.

Clause 52.

The Hon. D.W. RIDGWAY: I have a couple of questions relating partially perhaps to clause 51 but more importantly to clause 52. In relation to the delivery of online planning services, a couple of the questions that industry, the ones that the minister has selectively quoted from their letter—

The Hon. G.E. Gago interjecting:

The Hon. D.W. RIDGWAY: No. They have said that they are not clear who is responsible for that service and they understand that, unlike the planning portal—this is the delivery of online planning services—they understand that it is likely to be managed by local councils. Is that the case for the delivery of online planning services?

The Hon. G.E. GAGO: All that this particular clause does is allow the government to make regulations on how these work. The chief executive is responsible for the online planning service and councils then have to comply with the regulations re the use of the portal.

The Hon. D.W. RIDGWAY: Industry has raised some concerns that it needs to be, if you like, obviously centrally coordinated, but it has raised concerns that many councils do not meet the current requirements for the provision of online services. The question posed is that industry thinks that it would be much better if there was consistency across councils. Again, it is not so much about red tape but the use of a system where all councils are operating under the same system. If you are lodging an application and documents in one council then the exact same system is used in another council.

The Hon. G.E. GAGO: That is exactly what this clause seeks to do: to bring consistency across councils. So there will be one single portal and it will send out data and information to each council. There is one portal and one central, consistent body of data and information.

The Hon. D.W. RIDGWAY: For example, if I live in Mitcham and my builder is lodging an application in Mitcham and, if somebody who lives in another council area has the same builder and they want to lodge an application for a development in another council, will it be consistent from the practitioner's point of view? Will it be simple for them to do that, because that seems to be one of the problems at the moment?

The Hon. G.E. GAGO: I am advised that you will go to one website irrespective of which council.

The Hon. D.G.E. HOOD: I think the minister may have answered this in that answer but, to be clear about what she said, does the government envisage that people will no longer go to their local council website for this sort of information but, rather, they will go to this website? Is that the intention?

The Hon. G.E. GAGO: That is correct.

The Hon. D.W. RIDGWAY: So it will not be a link through your local council website?

The Hon. G.E. GAGO: I am advised that local councils can choose to do that. They can set up links if they want, but they will not need to do that. There will be one consistent portal that individuals can access from their home. I move:

Amendment No 18 [EmpHESkills–1]—

Page 50, line 36—After 'planning' insert 'and assessment'

This is a technical amendment that clarifies the intended operation of the portal in delivering online planning services.

Amendment carried; clause as amended passed.

Clause 53.

The Hon. G.E. GAGO: I move:

Amendment No 19 [EmpHESkills–1]—

Page 51, line 3—After 'Gazette' insert 'and on the SA planning portal'

Amendment No 1 [EmpHESkills–3]—

Page 51, after line 6—Insert:

(ab) commercial value or sensitivity; or

As the SA planning portal will be the primary mechanism for disseminating information relating to planning matters, it is appropriate that this clause be amended to ensure any directions related to protection of particularly sensitive or commercial-in-confidence information are published on it. I thank the LGA for that particular suggestion. As a consequence of discussions with both the LGA and industry groups, the government has moved in a number of locations to provide for the publication of reports provided by the state planning commission to the minister on the planning portal.

This is an important transparency measure and applies to any instance where the portal is furnished to the minister ahead of parliamentary scrutiny of the minister's decision. Of course, any such reports should be published, subject to the kind of appropriate redactions necessary to meet confidentiality standards usually expected. To do this, we propose this amendment to clause 53, which already governs protected information that is not to be published on the portal. This form of protection will perform the same task as the protections under the Freedom of Information Act.

Amendments carried; clause as amended passed.

Clause 54.

The Hon. M.C. PARNELL: I move:

Amendment No 30 [Parnell–1]—

Clause 54—This clause will be opposed.

This amendment is to delete clause 54, and this is one of those issues that could become very technical and complex, but I will explain my thinking. I think I am right, but the government may not. This clause has only two lines and states:

The Freedom of Information Act 1991 does not apply to or in relation to a document (within the meaning of that Act) that is received, created or held under this Division.

When you look at the debate in another place, as I have done, the original reaction of Vickie Chapman, the member for Bragg, was exactly the same as my original reaction. That is, those of us who have had a bit of dealing with the Freedom of Information Act know it reasonably well, and we know that there is a special exemption in the act which says, in colloquial terms, that if you can get the document somewhere else you do not go through FOI. That makes sense; it is a logical provision. Section 20 of the Freedom of Information Act states:

(1) An agency may refuse access to a document—

(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge;

That is a complex form of wording, but what it means is that if you can get the document somewhere else, such as online and you can just download it, then the agency can refuse to deal with your FOI request. Members may have received responses from agencies where the agency says, 'What are you asking for this for? Just download it off the website.' So, there is already a protection within the FOI Act.

There was then some discussion in the lower house to the effect that if stuff that is on the portal is effectively exempt from the FOI Act, what is the need for this clause? That is when it starts to become a little bit tricky to understand, but I have narrowed it down to a basic principle: that the standard that should apply is the Freedom of Information Act standard, and the standard for nondisclosure in this bill may well be a different standard.

We have just been considering a clause called 'Protected information', which says that the minister can direct that certain information relating to confidentiality, for example, must not be put on the portal. I know that many of us here have had the experience of lodging FOI applications and the determination has come back saying, 'Well, that's confidential.' If you read the Ombudsman's findings and the Ombudsman's reports, one of the things the Ombudsman has been saying for years is, 'You can't hide behind claims of confidentiality or business interests, or any of the others, unless they really are confidential.' The Ombudsman is very often overturning decisions to refuse access and forcing agencies to allow access.

Whilst clause 54 purports to be limited to documents that are received, created or held under this division, that does not give me enough comfort that, if the agency unreasonably withheld a document from the portal, I could not go chasing it under FOI if I thought it were appropriate. My gut feeling would be that the agency would point to clause 54 and say, 'No, FOI doesn't apply.' I would then say, 'But the document is not on the portal,' and they would say, 'No, no, we determined not to put it on the portal,' and I would say, 'But I think I've got a right to access it under the Freedom of Information Act,' and we get this circular argument happening.

So the safest course of action is to say that the Freedom of Information Act does continue to apply to those circumstances where the document is not otherwise available. I agree; if it is on the portal then get it off the portal. We should not be lazy about accessing documents; if you want an annual report or something and a few clicks of the mouse would take you to it on their website, then of course you should not go through FOI. However, as I said in my second reading speech, there are a number of quite important documents that the government may or may not decide to put on the portal.

I am thinking, for example, of responses that government agencies make to rezoning applications, or even individual development applications. The ones I mentioned in my second reading contribution were SafeWork SA, which made some comments about whether it was a good idea to build houses next to a fertiliser plant; similarly, the health department about Dock One; and the EPA, for example, putting in a submission saying that building houses too close to the Adelaide Brighton Cement factory was not such a good idea. I do not have confidence at all that these documents would find their way to the portal, and I do not have confidence that agencies would not try to hide behind clause 54 by saying, 'Well, actually this document was received for the purposes of the portal but we decided not to put it on, and therefore you can't have it.'

I am trying to avoid an argument down the track. The safest thing to do is to remove clause 54 and let section 20 of the Freedom of Information Act do its work. I hope it does not arise, but in the rare situation where important information that should be on the portal is not, you have at least got the FOI regime and external review. It means going to the Ombudsman, but it gives us the chance to at least argue the toss. With this clause in here we might not even get to that point; the Ombudsman might not feel that he or she has jurisdiction. So I think removing clause 54 is the best option.

The Hon. G.E. GAGO: The government opposes this amendment. The concerns I have with the Hon. Mark Parnell's opposition to this clause are well documented in my second reading summation and in detailed committee deliberations in the other place on this particular clause. Basically, this clause ensures that information that is gathered in the planning system is subject to its own disclosure and access regime in lieu of the usual rules that apply under the Freedom of Information Act.

This is because information provided as part of a development application is often far more sensitive and deserves stronger protections. Moreover, such information is often held for longer periods of time than apply under the State Records Act. In fact, as the Hon. Mark Parnell knows, this clause merely restates what is already existing in law under the Development Act, whereby because of stronger statutory protections for certain types information the regime of FOI is already effectively displaced from the planning system.

In reality this is a no-change clause. It is basically continuing with the existing provisions. I confirm, as I did in my second reading summation, that this exclusion applies only to matters required to be published on the portal and not to any other advice or information that may from time to time inform the choices of decision-makers such as the minister and the state planning commissioner, amongst others, in terms of the decisions they might make.

The Hon. R.I. LUCAS: This is probably a good time to be nearing the end of the parliamentary debate in relation to this particular clause. I think this is a difficult clause. I must admit that my natural inclination is to support the position that the Hon. Mr Parnell has put, and the fact that we are not going to conclude the debate on the bill now, and hopefully have time between now and February 2 to reconsider our position, it may well be the safest position for the committee to adopt.

I have to say I am unconvinced by the minister's response thus far in the debate, in both her earlier contribution and that one, as to why this particular provision is needed. That does not mean that between now and February minister Rau and the government might not be able come up with persuasive arguments as to why we should agree with the government's position. Personally, I would leave myself open to being convinced. I guess all of us who have had experience with the freedom of information legislation have learnt, perhaps to our cost, that if a government wants to fight and fight hard to stop information getting out, they have plenty of flexibility within the freedom of information legislation to do that.

There are limited examples where after long battles of a year, two years or three years, opposition or non-government members have been successful in getting beyond that first boundary of how this is commercial-in-confidence or it is confidential or we do not want to release it for whatever reason it might happen to be. I am unconvinced that the freedom of information legislation does not have enough teeth to assist governments to stop information getting out, if that is their predisposition.

I guess the minister's argument is that it is not strong enough and we need an even stronger regime in relation to this new planning regime to protect information. As I said, I think the onus is really on the minister and the government to convince us of that case. I am open to being convinced but at this stage I have heard nothing that convinces me that what is already an extraordinarily tough regime to get through in terms of getting documents and getting information is not strong enough and tough enough for a government to manage its processes in terms of commercial confidentiality or privacy reasons or whatever else it might happen to be.

Personally I am predisposed, at this stage anyway, to supporting the Hon. Mr Parnell's position. I conclude by saying, if minister Rau and the government can provide the opposition and non-government members with persuasive examples as to why the already tough FOI regime is not sufficiently strong enough to protect the confidentiality of documents, then let's get that advice in detail rather than the abstract, give us some examples and then we will all be in a position to further consider it. My view would be that it would be sensible to allow this debate to continue and put the onus back on the government to convince us as to why they need this particular clause.

The Hon. D.G.E. HOOD: I concur with the comments of the Hon. Mr Lucas. If this amendment was to come to a vote now, we would be inclined to support it. I have heard nothing that convinces me not to support it, but if we were to adjourn at this point then obviously the government would have an opportunity to convince us otherwise over the break. That is a matter for the government, of course. If you are good at your maths, you can work out there are eight Liberal votes, two Greens and two Family First which where I come from is probably enough to get it through.

The Hon. G.E. Gago: Alright. I'll report progress.

The Hon. D.G.E. HOOD: There you go.

The Hon. S.G. WADE: In the context of the minister's earlier comments that clause 54 maintains the status quo, would she be able to advise us whether that exemption exists in the Freedom of Information Act or in planning legislation or where it has its force?

The Hon. G.E. GAGO: I have been advised that it is a complex set of interactions between regulations in the Development Act and various schedules in terms of freedom of information.

The Hon. A.L. McLACHLAN: I would like to add to those comments from the Hon. Mr Lucas and the Hon. Mr Hood. In my mind when the government is considering its response in the New Year, we have a new regime protecting information which is in the preceding clause 53, so I would be interested in the structure of appealing or challenging where information can be released. It may appear elsewhere in the bill or it may be appearing in the regulations, so that when information is being declared protected, what is the process subsequently to challenge that decision? On the face of this page, once it is protected here under clause 53, it is protected without challenge and then at clause 54 with its interplay, it means there is no mechanism for its release. I do not seek an answer today, but I put that in the mix for the government to consider over the coming months before we resume our labours in this chamber.

Progress reported; committee to sit again.