Planning, Development and Infrastructure Bill

Committee Stage

In committee.

(Continued from 9 December 2015.)

Clause 33.

The Hon. D.W. RIDGWAY: This is a precursor to this final day of parliamentary sitting. I want some clarification on the record from the minister in relation to other government business that the government may choose to do. The minister has just adjourned items 1 to 9 until the next day of sitting which includes Surveillance Devices Bill about which I think the shadow attorney and Attorney-General are meeting at 1pm today.

I put on the record that the opposition and I am pretty certain the crossbenches were expecting to process that particular bit of government business today, as well as the Port Pirie Racecourse Site Amendment Bill, Youth Justice Administration Bill and the Government House Precinct Land Dedication Bill. I think from the opposition's point of view, and I cannot speak 100 per cent on behalf of the crossbenches, but I think it was the understanding that at some point this week we would deal with those bills.

I know that the chief of staff of the Minister for Veterans, Hon. Martin Hamilton-Smith, has been hassling our shadow minister about when we are going to process this bit of legislation. I really would like some clarification from the minister on what the intention is, because if the government has no intention of debating those today, that is the government's call, but I do not want the opposition or the crossbenches to be the target over the summer that we were not prepared to debate them.

The Hon. G.E. GAGO: I have provided ample clarification, starting with the priority letter that went out before we commenced sitting, and I made it very clear in that letter that our number one priority was planning. I have indicated every day since and sometimes on more than one occasion that we are here to do planning. We are here to complete planning. That is our government priority, and that is what we expect the opposition and the crossbenches to assist us with.

The Hon. D.W. RIDGWAY: I just want some clarification that the government has no intention of processing Orders of the Day Government Business Nos 6, 11, 12 and 14 today. Minister, you do not have to be Einstein or a rocket scientist: we are at clause 33, functions of the chief executive, in a bill that has 232 clauses. You do not have to be that smart to work out that it is highly unlikely that we are going finish it today; in fact, I am certain we will not finish it today. Your government is still negotiating with industry around some of the proposed amendments to do with the infrastructure levy, and we are yet to get a final position from industry.

Given that they are the circumstances we are faced with, I do not want my team, the crossbenchers—the rest of us, the other 21 members of this chamber—being accused of not wanting to debate government business that the government wishes to get through before Christmas, particularly given that, under the Government House Precinct Land Dedication Bill, the bulldozers have moved in and the trees have been cut down, yet the legislation has not been through parliament.

Can the minister finally clarify that she has no intention of doing it? Given that the planning bill will not pass, it seems logical to us on this side of the chamber that you should allot some time to process bills that will take only a few minutes each to process so that at least they are completed before the end of the year.

The Hon. G.E. GAGO: I am not too sure which part of 'planning is our number one priority' that the Hon. David Ridgway does not get. I cannot be clearer. Our number one priority, the government's number one priority, is to complete planning. We are here to complete planning. The opposition has completely frustrated and blocked the government's reforms, completely frustrated our efforts to progress major reform; they have blocked and filibustered. Yesterday evening, in terms of private members' business, was an absolute classic example of spending hours on incredibly minor matters—most of them incredibly minor and insignificant matters—that will not make any difference to anybody anywhere—

The Hon. M.C. Parnell interjecting:

The Hon. G.E. GAGO: Most of them—I said most of them—and they will not make one bit of difference, not one skerrick of change. Before us we have major reforms to this state that will affect not only residential housing but the way business is planned, it will affect local government and affect almost every South Australian in some way throughout their life. It will have profound ongoing influence on South Australia and on South Australians lives. We consider that to be the number one priority.

Right from the outset, we said back in March that we wanted this bill completed before the break, and that has been our intention. So, right back in March we put them on notice that we wanted this bill completed by the break. I have indicated, in every piece of correspondence and every priority letter since, that planning is our number one priority: we are here to do that and, once that is completed, we can go on and do other business.

I have just been reminded that the reforms we are dealing with will result in $2.3 billion in economic benefits to this state, yet we had to be mistreated yesterday evening, to have most of the evening, up until 10pm, filibustered with most of it minor and insignificant matters, most of which will have no significance on anyone's life. I have been advised we have a $2.3 billion reform in terms of it is economic benefit to the state. Shame on you David Ridgway, shame on the opposition and shame on the crossbenches.

The Hon. D.W. RIDGWAY: One final question: if it is the number one priority, why were the police here yesterday morning for the Firearms Bill and a firearms message and again this morning if it is your number one priority?

The Hon. G.E. GAGO: We indicated we would take messages from the other house. We did take a message.

The Hon. R.I. LUCAS: Last night, as we closed debate on this, I highlighted concerns I had about potential areas for conflict for the CEO of the planning commission who is holding the dual role of the CEO of DPTI. I will not repeat or outline again those conflicts, but one being with the minister and the Premier and the other being with the independent planning commission.

The minister's response, on advice, was that this is not unusual. People like the CEO hold other positions like the Rail Commissioner or Commissioner of Highways. My point in response to that is that I think even the minister, in her quiet, reflective moments, would have to concede that the potential for conflict between a government wanting to get a contract or a project up and an independent planning commission is much higher than the potential issues in relation to a person holding the dual roles of CEO of DPTI and being the Rail Commissioner, for example, or the Commissioner of Highways.

As I said, I suspect even the minister, in her quiet, reflective moments, would have to concede that, but certainly, I think, and more importantly, most reasonable observers of the debate would accept that the potential for conflicting pressures on an individual in the circumstances we are talking about here are much more significant. Given that I think the Hon. Mr Ridgway has outlined the quite different structure of the Western Australian Planning Commission in terms of its staffing, was the primary reason why the government chose to, in essence, have the one person fill both roles, a financial and a cost one—that is, it obviously saves money when you do not have to employ a separate chief executive—or is there a separate policy reason why the government actually believes this is a good structure?

The Hon. G.E. GAGO: I have been advised that indeed there are cost benefits of having the role of the DPTI CE include responsibilities for the planning commission. Also, we wanted to make a clear policy link between infrastructure and planning, and having the CE of DPTI structured in that way makes that structural link between the two.

The Hon. R.I. LUCAS: I am sure, given the minister's response, that the minister is not going to concede the point I am making; that is, that there is an inevitable conflict of interest in the way this has been structured. This is the government's decision, and she is, based on advice, going to defend that.

My question relates to what I might refer to as the Darley amendments, or the Darley clauses, in other bills. Is there anything in this bill which actually has an inbuilt mechanism to review this governance structure? The reason why I refer to them as the Darley amendments is that the Hon. Mr Darley is well known for introducing amendments to pieces of legislation which require, after a period of time, there to be a review to see how things have gone.

Given that some of us have a view that there is an inevitable conflict which is a recipe for potential major problems with this structure, and given the government is obviously rejecting that or is not prepared to agree to it, is there anything within the bill which requires, after a period of time, the government of the day to review at least this aspect to see whether or not the concerns we are raising and the government is rejecting were accurate, and to either confirm the adequacy of the government's arrangements, should they be successful here, or whether or not it has not worked and there have been these conflicts that some of us have raised, and whether it is maybe time to look at an alternative structure?

The Hon. G.E. GAGO: I am confident that the minister would be comfortable with considering the possibility of a review of that part of the structure or a review to assess the potential for the structure to result in conflict.

The Hon. R.I. LUCAS: Let me conclude my contribution on this clause at that stage and say that I acknowledge the minister's undertaking on behalf of minister Rau and the government on that. Given that we are going to come back in February, the minister and other members may well reflect on whether or not, when we resume debate in February, there might be a way of bringing that about.

The Hon. A.L. McLACHLAN: Building on some of the comments of the Hon. Rob Lucas, clause 33(1)(a) includes the words 'to work with', which you would normally expect to be 'to work for', the commission. Has the phrase 'to work with' been drafted in that way to allow the chief executive to have different lines of accountability? Is that the purpose of those words?

The Hon. G.E. GAGO: Probably a more accurate way of describing it is that it reflects reality.

The Hon. A.L. McLACHLAN: So, if we take on what the Hon. R. Lucas has said, that the chief executive will have a number of functions, why is appointment under this bill, if enacted, not an office of profit under the Crown?

The Hon. G.E. GAGO: Could you just repeat that question?

The Hon. A.L. McLACHLAN: If the chief executive has a number of appointments under various acts, normally there would be a provision specifically excluding it from being an office of profit under the Crown, that is, holding more than one appointment for profit. I am wondering why there is not a specific exclusion or if it may be somewhere else in the act. As the bill is drafted, it is to work with the commission, so there is more than one appointment. I am just wondering why there is not a specific exclusion clarifying that they are not holding a number of offices of profit.

The Hon. G.E. GAGO: I have received advice, and the view is that we believe that this issue does not arise. The CE is defined as the CE of DPTI, and that person is also deemed to be the commissioner for highways or whatever. The view is that the issue does not arise, but we will double-check that and, if there is a problem or the answer is something other than that, we will make sure that we bring that back and bring it to your attention.

The Hon. A.L. McLACHLAN: I am just pausing for a moment to see if further advice is forthcoming.

The Hon. G.E. GAGO: No, there is nothing further on it.

The Hon. A.L. McLACHLAN: There is just one final matter. As the chief executive has a number of functions, as the Hon. R. Lucas has articulated, I take it that the chief executive has, under this provision, to take instruction from the commission in relation to those things for which the commission has responsibility; is that correct?

The Hon. G.E. GAGO: I am advised yes.

The Hon. R.I. LUCAS: The question I have now is in relation to performance management. The chief executive—the one person—is serving two streams of masters or mistresses, as I have referred to them. The chair of the planning commission or the planning commission, in essence, may be dissatisfied with the performance of the chief executive of the planning commission. Under subclause (2), they have assigned such other functions as they saw fit and they make a judgement that this person is incompetent, is hopeless, is not doing the job.

They may say, 'We no longer have any confidence in you. We're going to get rid of you.' However, this person holds the dual roles, and the Premier with whom he has signed the contract may say, 'Hey, you're doing a fabulous job. You're meeting all the KPIs, you're jamming through these projects before the March 2018 election. I'm delighted with what you're doing.'

On the one stream of governance, the Premier and the minister are delighted because he or she is jamming through the projects, but the planning commission says, 'We've given you functions. You're meant to be responsible to us for the planning commission work as an independent planning commission. We think you are hopeless at your job in terms of what we want. We no longer have confidence in you, even to the extent of passing a motion saying we no longer have confidence in the chief executive. We don't want you anymore.' Can the minister indicate how that issue is resolved when the person holds both positions?

The Hon. G.E. GAGO: I have been advised that what is likely to take place is that there will be a performance agreement between the chief executive and, if you like, the Premier, that will include a provision that will outline the services that the chief executive is required to provide to the planning commission. It is highly likely that there will be a set of KPIs associated with that, so that the expectations of that person's performance are clearly outlined in that agreement.

It is also possible that the Premier would discuss with the chair of the planning commission aspects that they might consider to be important to include in that performance statement and even key performance indicators, so that is likely to happen. If the chair believed that there were aspects of the chief executive's performance that were inconsistent with the performance agreement or below standard, it would be expected that the chair would take those matters to the Premier and the performance management would be dealt with that way.

The Hon. R.I. LUCAS: The minister seems to be suggesting that, in essence, the CEO of DPTI's performance agreement with the Premier would include in it a clause with words to the effect that, 'You need to operate to the satisfaction of the planning commission.' If the planning commission says, 'You're hopeless, we're not prepared to work with you,' is the minister indicating that those would be sufficient grounds for the Premier to terminate the contract of the chief executive of DPTI?

The Hon. G.E. GAGO: Fundamentally, yes. As I outlined, it is highly likely that that would be the case. It could also include, for instance, a service level agreement between the chief executive and the chair of the commission that might provide more detail to those service or performance expectations outlined in the performance agreement.

The Hon. R.I. LUCAS: I will not belabour the point, other than to say that in terms of both the questions and the answers we have had from the minister—and I make no criticism of the minister; she is giving her answers on the basis of advice provided—there is immense potential for conflict and immense potential for irreconcilable differences in terms of how this would actually be resolved.

As I said, it may well be that the Premier of the state and the minister are just delighted with the performance of the chief executive of DPTI because the particular project is being driven to a political time frame to be ready for February 2018 and they might not be too much concerned about the independence of the commission, and the planning processes, and the concern that the planning commission might have. There is the potential (and one hopes we never get to this situation) for this not to be able to be resolved, given the governance structure that has been developed by the government.

I will not belabour the point because I do not think I will get any more information out of the minister on it. Ultimately, one hopes that this situation does not eventuate, but I think at least the government has been warned, through the debate we have had here, of the considerable potential for conflict, the considerable potential for a major difference of opinion between the planning commission and the government about the performance of the one person, where one is very happy—that is, the government—and the other, the independent commission, is very unhappy. Ultimately, how that is to be resolved I do not think it is clear, even after the minister's responses to these questions.

The Hon. G.E. GAGO: I think the honourable member is unnecessarily overly concerned. We manage these sorts of tensions—or that sort of dynamic rather than tension—every single day. As I said, most of our chief executives have a range of statutory responsibilities and, as well as that, we have many chief executives who are responsible to more than one minister. In fact, I think Mr Don Russell is responsible to about five ministers. Not only does he have to manage the expectation of each of those different ministers and their particular part of the agency, and each minister obviously considers themselves to be the most important—

The Hon. R.I. Lucas: But his contract is with the Premier, though, Gail.

The Hon. G.E. GAGO: Yes, but his performance and the expectations of his performance are spread across, as I said, a number of role functions, plus he also has to manage his statutory responsibilities, such as the Economic Development Board on which he also sits. We are very used to managing this sort of dynamic every single day without undue conflict or upset. I have heard what the honourable member has had to say, and I have indicated that the minister could possibly look at that in terms of some sort of review around conflict in the regulation, but I think the honourable member is unnecessarily overly concerned.

The Hon. M.C. PARNELL: I have not weighed into this clause yet, but I want to rise briefly to say that I think that the Hon. Rob Lucas is onto something. Whilst the government has made some attempt to separate some of the different functions of the commission, in terms of policy setting and in terms of development assessment consideration, it is far more difficult to separate functions in the person of a single officer, such as the chief executive.

There are three potentially inconsistent competing masters, if you like: the government's political imperative, the government's policy development imperative and the development assessment imperative, and they could be three very different outcomes.

Again, without labouring the point, I mentioned earlier in debate that in South Australia, and I think the first time that I entered the Environment, Resources and Development Court as an advocate, it was precisely this type of issue where the government had got it terribly wrong; where it had people whose job it was to promote an industry being the same people whose job it was to assess an industry.

I can still remember that the Crown Solicitor in that court case at the pre-trial conference said to the judge, 'We have managed this so badly, we have got this so wrong, that we're not even prepared to contest the case.' I thought that I was a pretty crash hot lawyer because I actually won four cases without having to go to trial because the Crown Law, on behalf of the government, realised that the process was just so corrupt—with a small 'c'—that it would not stand scrutiny.

I think the Hon. Rob Lucas is on to something and, again, this is an issue that deserves more detailed consideration and I expect that is exactly what we will do over the summer break.

The Hon. D.G.E. HOOD: My question on this clause is a slightly obscure one and follows from some of my questioning last night but I will put it in the simplest way I can. It follows on from the Hon. Mr McLachlan's questions, as well. It does not specifically rule out the possibility of the chief executive—because the wording is unusual, as the Hon. Mr McLachlan pointed out—being a member of the commission. I know that is not the normal practice. Has the government not included those words because there might be an exception where that would be the case or is it an oversight or is there another reason?

The Hon. G.E. GAGO: The chief executive is an ex officio member of the planning commission—clause 18(1).

The Hon. J.A. DARLEY: As a former chief executive, I think this is organisationally unsound and a complete nonsense.

Clause passed.

Clause 34.

The Hon. R.I. LUCAS: I want to clarify: a delegation from the chief executive can be made to a particular person or body. Is it the government's intention that it is not restricted to public servants or public officers—that is, it could be a private sector person, a consultant?

The Hon. G.E. GAGO: I am advised that it is a standard delegation clause.

The Hon. R.I. LUCAS: It might be a standard delegation clause but my question is: does this 'standard delegation clause', as that is the government's response, enable the chief executive to delegate a particular power to a consultant or non-public sector employee?

The Hon. G.E. GAGO: I am advised yes.

The Hon. R.I. LUCAS: Is there a particular set of circumstances that the minister would be aware of where that would either be possible or essential? I guess the normal delegations would go to the next most senior public servant working in the office, but are there particular circumstances in this area (and I am not an expert in the planning area) where the chief executive of the planning commission would delegate to a consultant a particular power that the chief executive had?

The Hon. G.E. GAGO: An example of where delegation might be made to a consultant is, for instance, where the chief executive is responsible for setting up the portal and associated database. It would be reasonable to delegate this to a consultant, obviously within very clear and limited parameters.

The Hon. M.C. PARNELL: The prospect of delegating to private consultants might seem innocuous in the type of example that the minister has given, something that is highly technical, developing the website. However, what fills me with some dread is to, well, pose the rhetorical question about whether the government has learnt anything from the Mount Barker debacle and the outsourcing of all the work that went into the government's 30-year plan. If members cast their minds back, the issue went to the Ombudsman, it went to the Independent Commissioner against Corruption, and it was to do with the propriety of having private planning consultants effectively doing strategic planning work on behalf of the government.

I recall that in all of the documents that, after a two-year legal battle, I managed to extract from the planning department in relation to Mount Barker, there was an email from a planning officer in the department. I am paraphrasing because I do not have it in front of me, but it went along the following lines. He said, 'Is anyone else surprised that these private planning consultants have presented the government with exactly the same proposal that they prepared when acting as lobbyists for the private development industry?' That was what Connor Holmes presented to the government, having been contracted to prepare this work investigating future options for the growth of Adelaide.

The planning officer was quite surprised, saying, 'On the public purse, these people have prepared a proposal for government which is identical to the proposal they prepared when acting as paid lobbyists for the developers, who owned or had interests in the land around Mount Barker.' To me that was at the heart of what went wrong with that situation.

The government will often say, 'Well, we didn't actually delegate; what we did was we contracted the work, but the final decision was made by other people, the final decision was made by the minister.' That does not give me a whole lot of comfort, because ministers act on advice, and it is my understanding that it would be quite rare, in a planning context, for the minister, having outsourced to a major consultancy, to then completely disregard the recommendations that were made.

When I produced a document some time ago—I think it was called 'Parnell's Dirty Dozen: 12 things wrong with the planning system and how to fix them'—one of the problems on the list was this problem of the government outsourcing strategic planning work that should have been done in-house by publicly employed and publicly accountable planners. My response to that problem was not necessarily a legislative one; the response was, 'Just don't do it.'

Minister Holloway was saying, 'Adelaide is such a small town, we don't have enough publicly employed planners, we have to outsource this work.' I do not accept that. Even if one did accept it, outsourcing public interest planning work to people who have a direct conflict of interest—because they are also beholden to the people who stand to gain financially from the outcome of that work—is just wrong at every level.

It does not give me a great deal of comfort that the minister has now acknowledged that the chief executive can delegate to a particular person or body, being a private sector body whose main allegiance or loyalty is to other than the people of South Australia, so I am very concerned with this clause. I do not have a particular fixup mechanism in mind, and I guess that is one of the advantages we will now have over the summer break, to work out whether this clause does need more work to make sure that we actually honour what John Rau said when he first became minister for planning, that there would be no more Mount Barkers on his watch.

The Hon. G.E. GAGO: The Hon. Mark Parnell is running down the wrong burrow. I think he has confused the role or functions of the chief executive in the planning commission, so I just remind honourable members that the chief executive of DPTI does not have the sorts of role, functions and responsibilities that the Hon. Mark Parnell is referring to in relation to planning; he just doesn't. He has very limited planning functions around things like the planning portal and infrastructure—very, very limited. The chief executive, in relation to planning, will only have minor administrative functions, not overarching policy functions.

The Hon. R.I. LUCAS: Just responding to that last point quickly, but I want to go back to the central issue, the minister cannot actually with accuracy say that because under clause 33(2), the functions of the chief executive can be added to, in any way, by the commission:

The Chief Executive has such other functions assigned to the Chief Executive by the Commission…

So, there is the potential, which we do not know, as to the planning commission assigning other functions. Can I come back to this delegation issue: the minister responded to my question about the reasons why you would delegate and the example she gave was, in essence, the technical issue of someone being required to prepare the planning commission's website. With the greatest respect, I think the minister's advice is confusing delegations with contracting out services. If you are in a government department or an agency, you might not have the expertise to develop a website; you do not actually delegate your power in a particular way, you just contract an adviser to develop your website. You engage an outside consultant, they produce it ultimately, and you, as the departmental chief executive or manager, would make the decision.

What we are talking about in terms of a delegation is a power that the chief executive has got which, for whatever reason, he or she decides to give or delegate to another person to exercise. What the minister is saying is that the circumstances are that the chief executive has a power to do something and can delegate that to a consultant to make the decision—not to provide advice, with the greatest respect to the Hon. Mr Parnell's example. I think you are talking there about, ultimately, as I think he conceded, the final decision rested back with the agency, or the chief executive—whoever it happened to be. If Connor Holmes were providing advice it might have happened to be the same advice they provided, as he outlined.

The point I am making in regard to a delegation is that the chief executive has a power and, for whatever reason, they can decide to say, 'Okay, I'm not going to exercise; I delegate that power to a private consultant to make the decision—not to provide me with advice, not to do technical stuff—but you go off and make that particular decision because I've delegated the power.'

So, with the greatest respect to this notion that you need to delegate the power to someone to construct a website, ultimately you can contract for that and say, 'Okay, develop a website for us,' and ultimately you approve it or you do not approve. The whole notion that you would actually let someone out there have the final decision on how you are portrayed as an agency would be most unusual. You would have the final look at it, or one of your officers would, and you would say, 'Okay, that's suitable for a government agency in terms of a website.'

Again, I will not belabour this point other than to say that I do not believe the minister's response actually answers the question. Between now and February it would be useful to get a better indication as to why the government believes this power is required in the planning area. There might be a reason and, as I said, I am not the planning expert. The closest we have got to it is the Hon. Mr Parnell, but I am not a planning expert.

Between now and February, the government might be able to say, 'Hey, we do require this, because in certain circumstances we do delegate a decision to a private consultant to make, and we are quite happy to live or die by whatever decision the private consultant makes on a particular issue.' I cannot envisage what those circumstances are, but it has obviously been drafted for that reason; the minister has obviously approved it for that reason, so he must have something in mind as to why he wants this particular power to, in essence, delegate a decision-making power to a private consultant in this particular area.

The Hon. G.E. GAGO: I think the creative minds are racing. This is a standard clause. It is a standard delegation clause that is currently in the existing act. It applies in section 20, for instance. The same delegation provisions apply currently to DAC, DPAC, council and a whole range of other authorities, and the minister. There is nothing new or unusual about this. This sort of standard clause has been around for many years and currently applies to a whole range of authorities without concern. It is a standard delegation clause, and I remind honourable members that the chief executive is also subject to a range of other controls, such as ICAC and the Treasurer's Instructions. There is a range of other controls, and they also apply to his delegates, I have been reminded.

The role and function of the chief executive is largely administrative and project responsibilities, not policy responsibilities. We have no intention of any change to that. As I said, this is a standard delegation clause that already applies; it is already existing without any problems or concerns from members, or for that matter, I do not believe anyone else.

The Hon. D.G.E. HOOD: Mine is a pretty simple question, a very quick one, I think, for the minister to answer. I thank her for her clarification earlier, but I just want to further clarify: as the chief executive is an ex-officio member, I understand they cannot vote, but does that also mean that they would not therefore be counted as a member of a quorum, for example, for the commission?

The Hon. G.E. GAGO: I am advised that they can vote and they can be considered part of a quorum.

Clause passed.

Clause 35.

The Hon. D.W. RIDGWAY: I refer to clause 35, subdivision 1—Planning agreements. I will just quickly read point (1):

Subject to this section, the Minister may, after seeking or receiving the advice of the Commission, enter into an agreement (a planning agreement), relating to a specified area of the State, with any of the following entities:

(a) any council that has its area, or part of its area, within the specified area of the State;

(b) any other Minister who has requested to be a party to the agreement;

(c) if the Minister thinks fit, any other entity (whether or not an agency or instrumentality of the Crown) that has requested or agreed to be a party to the agreement.

The first question is: would the advice that the minister has received be published at all, or would that be kept confidential? Can the minister explain: is it a private landowner when it talks about in point (c) 'any other entity (whether or not an agency or instrumentality of the Crown)'?

The Hon. G.E. GAGO: In answer to the question about the advice being made public, the advice I have received is that there is no requirement, but there is no reason not to; it is highly likely that it would.

The Hon. D.W. RIDGWAY: The second part of the question was, at subclause (c) it states:

If the Minister thinks fit, any other entity—

That is, enter into a planning agreement—

(whether or not an agency or instrumentality of the Crown) that has requested or agreed to be a party to the agreement.

I am just wondering, who are the other entities that envisaged? I assume it is private landowners.

The Hon. G.E. GAGO: The example I have been given is in unincorporated parts of South Australia. It might be, for instance, outback communities or an Aboriginal community.

The Hon. D.W. RIDGWAY: So, it is not privately owned land, it is outside the council area then?

The Hon. G.E. GAGO: It was designed particularly having those sorts of communities in mind.

The Hon. M.C. PARNELL: I guess on the same vein, I am looking at the Local Government Association's concerns about who the parties to a planning agreement might be. They say there is strong concern that, as drafted, the bill would allow the minister and any other entity to enter a planning agreement but does not include a council. It is understood that this was not the government's intention and this point needs to be clarified. The minister has just clarified that there are some areas that are out of council areas, for example, where it might not be appropriate for a council to be a party, but the LGA wanted clause 35(1) to be amended to clarify that a planning agreement must be between the minister and at least one council. They say that it is appropriate for other parties to be added but only on the agreement of the minister and the councils.

I know we are about to deal with the minister's amendment to insert a new subclause (1a), which basically says that if the proposed planning agreement is in an area that is covered by a council and if the agreement does not already include the council as a party, then the council has to be invited to join the agreement, but the Local Government Association, I think, having seen that amendment, is still uncertain about it and poses the following question: if the proposed planning agreement has not been initiated by the council and the council is not a party to the proposed agreement, who is the proposed agreement with?

The LGA understood that an agreement between the minister and the council could include another party, but an agreement would not be directly initiated between the minister and a third party. I guess to cut to the chase: are the only circumstances where a council would not be a party, the situations the minister describes, such as outback communities or an out-of-council area situation?

The Hon. K.J. MAHER: I am advised that the short answer is yes, but there may be other cases, and we will come to that. I think it is government amendment No. 14 that will specifically address that, yes.

The Hon. D.W. RIDGWAY: I have a question in relation to planning boards, or joint planning boards. Subclause (2) talks about setting up joint planning boards, and subclause (2)(d) states:

(d) the staffing and other support issues associated with the operations of the joint planning board; and

(e) financial resource issues associated with the operations of the joint planning board, including—

(i) the formulation and implementation of budgets;

And it goes on over the page. Does the government at this point have any idea of how many joint planning boards there are likely to be? What are the likely levels of support that are required? I assume again that we will get an answer that it will be done out of existing resources; but what is the sort of thinking around the number of joint planning boards?

The Hon. K.J. MAHER: In relation to the question about the joint planning boards, given that they are voluntary arrangements to form joint boards, we do not have an estimate of how many might be formed. We know that places in the South-East, with SELGA, are very interested in doing that; that would be seven councils with a joint planning board. In terms of resourcing, that would come from those joint planning boards; they would be doing it themselves. I hope it answers the question.

The Hon. D.W. RIDGWAY: The government is envisaging that regions will come together to form these joint planning boards.

The Hon. K.J. MAHER: If it might help, yes, you are right: it is regionally based, with the very good example of SELGA, which would be one of the first likely to want to do this. If regionally based joint planning boards were established, we could delegate certain powers that we would otherwise have to those joint planning boards, which creates a good reason for areas to do that.

The Hon. D.W. RIDGWAY: Subclause (2) provides:

A planning agreement must include provisions that outline the purpose of the agreement and the outcomes that the agreement is intended to achieve and may provide for…

In terms of staffing and other support issues and financial resources, subclause (2)(e)(ii) provides:

the proportions in which the parties to the agreement will be responsible for the cost and other liabilities associated with the activities of that board…

I am assuming—and I will use SELGA as an example; you have got all of your local government regional councils there (seven of them)—that they would apportion the costs of running that joint planning board on the size of their council or their rate base rather than the activity generated from each council.

The Hon. K.J. MAHER: Yes, you are exactly right; it would be those. Using the SELGA example, councils that came together for a joint planning board would resource it themselves. With the economies of scale there may well be savings to individual councils that are part of that which would be putting their resources into that joint planning board.

The Hon. M.C. PARNELL: On the same subject of joint planning boards, the Local Government Association has raised the concern, or the fear, I think, that elected members of council will be precluded from sitting on joint planning boards. Is that the case?

The Hon. K.J. MAHER: I am advised, no, that is not the case. It would be a matter for how they structure their joint planning board.

The Hon. M.C. PARNELL: So, just to be clear, there is no ineligibility for elected councillors to be on the board? Just to clarify a bit further, the Local Government Association in their advice to me suggested that subclause (3) should be deleted, and subclause (3) says:

The criteria for membership of a joint planning board must be consistent with any requirement of the Minister that is intended to ensure that the members of the joint planning board collectively have qualifications, knowledge, expertise and experience necessary to enable the board to carry out its functions effectively.

So whilst it does not say 'and must not include elected members', the Local Government Association I think fears that that might be a result of the application of subclause (3). Is their fear unfounded?

The Hon. K.J. MAHER: It is an unfounded fear, and as you correctly point out, it does not necessarily preclude elected councils becoming a member of those boards. It is certainly something that the minister is happy to discuss further, however those fears have arisen from local government. But no, it certainly does not preclude necessarily members, but it does require a mix of experience on those joint planning boards.

The Hon. D.W. RIDGWAY: Just quickly on that point, minister, if it does not preclude it, but it says on appointment to the board membership 'must be consistent with any requirement of the minister.' So, if the minister has a requirement that there not be an elected local government member, then under this clause I assume they will be ineligible to be appointed. I am just wondering whether the requirements of the minister should be published—that this is the expertise and we do not want local government people or yes, they can be local government people—on the website or that criteria is made clear so that people are aware what the minister's intention is.

The Hon. K.J. MAHER: It is a matter that the minister will certainly discuss with the LGA. There is no intention to preclude elected members as a consequence of the operation of this clause.

The Hon. D.W. RIDGWAY: Is it possible, and obviously you cannot speak on behalf of the Minister for Planning, to actually prescribe or publish a list of criteria for these joint planning board members so that there is some clear guidance as to who is eligible and who is not?

The Hon. K.J. MAHER: Yes, that will be an implementation task to do that.

The Hon. D.G.E. HOOD: I have only one question perhaps to follow on from the Hon. Mr Ridgway's. I see these joint planning arrangements and the boards that come out of them as a potential area for difficulty. We would like to think that everyone will get along on these things and that the councils will all have the same view, but very often councils can have different views depending on the impact on their particular patch. There is probably nothing wrong with that; that is entirely reasonable. My question is: has the government given any thought as to what happens in the event of one of these boards dividing along council lines?

The Hon. K.J. MAHER: In the event that people do not get along or there is a divergence of views or priorities from a joint planning board, certainly those parties that have made the agreement to form a joint planning board can make an agreement to no longer be a joint planning board. It also has provision for the minister to consider if there has been a failure of that joint planning board to also act in that respect.

The Hon. D.G.E. HOOD: Following up from one of the points made by one of my colleagues earlier, in terms of the composition of the board, is it likely that it will be local government employees with their various expertise comprising the board members?

The Hon. K.J. MAHER: It is possible, but it is deliberately left flexible so you can have different arrangements to suit different joint planning boards.

The Hon. M.C. PARNELL: In relation to the composition of joint planning boards, I accept the minister's answer and I note, reading ahead a little way, that in clause 37, which is about disclosure of financial interests, it refers to the requirement to disclose for members of joint planning boards who are not members of councils. I think the assumption in there is some of them may well be, so I accept the minister's point.

The Local Government Association also raised the issue of the level of protection that will be afforded to members of joint planning boards in the event that something goes wrong. The standard provision that applies for people who are serving on decision-making bodies is that, if something goes wrong and they have applied themselves diligently to the task, they are not personally liable. The Local Government Association refers to section 56A(10) of the existing Development Act, which is one of those standard clauses relating to council development assessment panels. It says:

A member of a council development assessment panel incurs no liability for an honest act done in the exercise or performance, or purported exercise or performance, of powers or functions under this Part.

The Local Government Association makes the point that that sort of standard protection measure in the case I have just cited (that is, for members of panels under the existing act) ought also apply to the new bodies that are created under this new act. They pose the question whether a liability exemption clause ought be inserted into division 3, joint planning arrangements, because I think it is quite reasonable that we would expect that people who are doing their job to the best of their ability, and honestly, ought not be personally liable to be sued if something goes wrong. The Local Government Association goes on to say:

The liability of the joint planning board can arguably default to the state government. However, it is likely that liability provisions will be drafted into planning agreements. There is potential for the minister to require that all liability will be the responsibility of the members of the joint planning board, which may or may not include the minister who will be a party to the agreement.

They also note schedule 2 clause 17, which provides that liabilities incurred by a subsidiary of a joint planning board are guaranteed by the joint planning board. There is quite a mix of issues in there but the bottom line is that the Local Government Association wants to know that people who serve on these joint planning boards will get the level of protection that is currently afforded to people who do this type of work under the current act.

The Hon. G.E. GAGO: I have been advised that, in relation to existing 56A, assessment panels are not body corporates and, therefore, an individual assessment panel member could be subject to personal liability. The joint planning boards are body corporates and, therefore, normal rules around liability apply. In their corporate governance arrangements, they would set up their indemnity insurance arrangements just like any other body corporate would, so we do not anticipate there will be any problems but we are happy to look at it further.

The Hon. R.I. LUCAS: Just to clarify the earlier point that has been raised so that I can understand it, my understanding is that the government's position is that a member of a council can sit on the joint planning board but when the joint planning board under 78 comes to establish an assessment panel, it is the assessment panel upon which the government says the local government member cannot sit.

The Hon. G.E. GAGO: I am advised that is correct.

The Hon. R.I. LUCAS: The other point I make is that the minister indicated on behalf of the minister and the government the willingness to look at subclause (3) which was raised earlier to allay what the government believes are unfounded concerns of the LGA. One of the options, I guess, would be either legislative amendment to subclause (3) to allay the concerns but the other option—and both involve legislative amendment—would be if the minister is going to stipulate requirements, as the Hon. Mr Ridgway outlined, it could end up being done by regulation and be a disallowable instrument. That is, in that way, if the minister was to go down the path to say, 'My requirements are that you cannot be a member of a council,' that could be disallowable. I guess there are a couple of options if the minister wanted to allay the concerns of the LGA in relation to subclause (3) that he might be willing to explore between now and February.

The Hon. G.E. GAGO: The advice is that there is not much point us looking further at this because the agreement covers who gets on the board, so even if you took out subclause (3), the minister would still be able to simply not agree and not sign the agreement. This just expands on that position. I move:

Amendment No 14 [EmpHESkills–1]—

Page 39, after line 12—Insert:

(1a) If a proposed planning agreement will include any part of the area of a council, the Minister must (unless the proposal has been initiated by the council) ensure that the council is specifically invited to be a party to the agreement (on reasonable terms and conditions) under subsection (1)(a).

This amendment addresses matters raised by the LGA and opposition members in the other place. The concern raised by the local government was that the clause as drafted has the potential to allow for a planning agreement to be entered into over a council's area without the council being party to the agreement.

This was not the government's intent; rather, we envisaged the flexibility to allow for additional parties to be joined to such agreements in council areas and also to deal with the out of council areas. The proposed new subclause will address any concerns by making it clear that, where a planning agreement is proposed to cover any part of a council area, the council must be invited to become party to the agreement.

The Hon. D.W. RIDGWAY: I indicate that the opposition is very happy to support the government amendment. It does fix up this anomaly, error or omission, so we are very happy to support the government.

Amendment carried; clause as amended passed.

Clause 36.

The Hon. M.C. PARNELL: On clause 36, the Local Government Association poses the question as to whether a joint planning board could be empowered to use the rating powers under the Local Government Act. That is a specific question, and they ask a more general question: what is the process by which a joint planning board would have additional statutory powers conferred on it? Clause 36(2)(d) states:

2. A joint planning board—

(d) has the functions and powers assigned to it under this or any other Act or conferred under the terms of the relevant planning agreement;

That is the general point, but the specific point the council is interested in is whether, for example, the rating power under the Local Government Act could be given to a joint planning board.

The Hon. G.E. GAGO: I am advised no in relation to rating powers. I am advised that, in relation to powers under any other act, those powers would have to be able to be conferred by the express provision in another act. An example of that might be delegation powers.

Clause passed.

Clause 37.

The Hon. D.W. RIDGWAY: This clause relates to the disclosure of financial interests and states:

A member of a joint planning board who is not a member of a council must disclose his or her financial interests…

I assume that that is because under the LGA Act council members have to disclose?

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

The Hon. M.C. PARNELL: Just quickly further on that, is the degree or extent of disclosure under the Local Government Act the same or substantially the same as under this bill?

The Hon. G.E. GAGO: I am advised that we believe it is actually more involved.

Clause passed.

Clauses 38 to 40 passed.

Clause 41.

The Hon. M.C. PARNELL: Clause 41 refers to the situation where things go pear-shaped and the minister appoints an administrator of a joint planning board. It is one of those provisions that we hope does not get used. The Local Government Association I think had some nervousness around subclause (4), which provides:

The remuneration of the administrator will be fixed by the Minister and is payable from the joint planning board's funds.

I think their nervousness is because there is no obligation to consult with the councils involved before setting that level of remuneration. The minister in another place, I think, agreed to have a look at that. My question is: has the minister had a look at it, and what guarantee could the minister give that before remuneration was set the local councils involved would be consulted?

The Hon. G.E. GAGO: Firstly, subclause (2) makes it very clear that councils must be consulted in relation to the appointment of an administrator. Secondly, it would indeed be most unusual, given the dire straits that the council would obviously be in, given that they are about to have an administrator appointed, to be consulting about the remuneration rate. Thirdly, this provision has been based upon the NRM Act, for their board, so again this is not unusual practice.

The Hon. D.W. RIDGWAY: I have a couple of questions on clause 41 around how the minister becomes aware that the board is not operating effectively. Does the minister take advice from the planning commission, the local member of parliament or read the newspaper? It talks about all the steps:

(a) the Minister considers that the board is not operating effectively…

(b) the Minister has determined that the relevant planning agreement should be terminated…

(c) the Minister considers that taking action under this section is appropriate on any other reasonable ground.

The Hon. Mark Parnell talks about things going pear-shaped, but under whose interpretation of the shape of the pear? What is the trigger point for the minister to actually take this action? This spells out 'the Minister considers that the board is not operating effectively', but how does the minister get to that point?

The Hon. G.E. GAGO: There are numerous ways, I am advised. He could be informed, for instance, by the commission, local council or media. There is a range of ways by which he could get information.

The Hon. D.W. RIDGWAY: Subclause (5) provides:

The members of the joint planning board are suspended from office while an administrator holds office under this section.

Minister, while you were out of the chamber, minister Maher used the example of SELGA (South-East Local Government Association), where seven councils come together to put together a joint planning board. They have a joint planning board and share the cost.

I assume that with those joint planning boards there would be some administrative cost and some sitting fees or out-of-pocket expenses, etc. for the members. Would those members, even if they were suspended from office, still be paid any sort of retainer or, if there were a fee for being a member of a joint planning board, would they still be paid while the administrator is in place, effectively having a double cost?

The Hon. G.E. GAGO: I am advised that it would depend on the employment conditions, but probably not, and obviously we will be looking to make sure that any potential for double dipping is addressed and—

The Hon. D.W. RIDGWAY: It is also a double cost to the members.

The Hon. G.E. GAGO: —a double cost is avoided.

Clause passed.

Clause 42.

The Hon. M.C. PARNELL: There is a concern I have had for some time, and I have discussed or debated it at some length in this chamber, including a disallowance motion some six or seven years ago. Under this new regime, I am not sure whether my concern is in relation to a practice direction under clause 42 or a practice guideline under clause 43, but the minister will know the answer.

The concern I have had, and which I fear may be replicated in this existing bill, is a document that came out called 'Code of conduct for members of development assessment panels'. Minister Holloway was then in charge, and I think the code of conduct was drafted for very good reasons and it was well intentioned, but my concerns were that it went too far.

My expectation might be that a similar document, a code of conduct for the members of development assessment panels, will be either incorporated as a practice direction under clause 42 or a practice guideline under clause 43. Very briefly, the reason I objected to it was that it sought to prevent members of development assessment panels from informing themselves independently in relation to any aspect of a decision. In fact, they were told that if they dared to inform themselves privately about an issue they would be removed from the panel. It was quite a draconian provision.

The sort of example I used was one of the local ward councillors where I live who was a member of a development assessment panel. Her practice was, having received the agenda for the next meeting, that she would actually drive around the municipality and look at all the developments that were on their agenda. She would have a look at them. She would have a look at the house where the swimming pool was going or where the new garage was going or the second-storey addition was going. She actually tried to inform herself by visiting and, on occasion, would talk to the applicant for development approval or perhaps the neighbour. If, on this trip, the neighbour was in the front yard, my local councillor could say, 'What do you think about the two-storey addition going up next door?'

Under the current guidelines, the local councillor sitting on the development assessment panel could be removed for having had an unauthorised communication. You can see why there is actually merit in a provision like that because, whilst I have posed a fairly innocent scenario, an alternative scenario might be the developer taking the panel member to lunch or to the golf; inviting the panel member to the corporate box at the football; putting them up in a hotel for the Australian Open; a box at the Grand Prix.

It was a measure that was designed to prevent undue influence, where parties to developments could not effectively bribe the decision-makers. So I absolutely get why a code of conduct was necessary but, the reason I say it was overreach is as I stated in the submission that I put to this place, which was ultimately rejected, but I will put it again now, namely, that, whilst we can have some rules against bribery and offering of inducements—as we should because that is corrupt and we can put rules against that—rather than having a rule against communication with other parties, the rule should be disclosure.

In other words, if a person was on a decision-making body that was deciding whether or not a development should be approved and they had had a conversation with the proponent or the objector—whether it was someone they met in the supermarket or whether they had knocked on the door of the house next door—it seems to me that a reasonable regime would be one of disclosure.

Before that item on the agenda was considered, the chair of the meeting would say, 'Has anyone had any contact with any of the people involved? Has anyone been given any documents that we might not all have.' That would be the time when someone would say, 'Yes, I did actually have a quick chat to the proponent,' and you get that out in the open. You disclose it.

It struck me that if you have a blanket ban on being able to talk to people involved, then the decision-makers are limited to only what is presented to them in the meeting and they may well not have everything presented to them in the meeting. They especially will not have everything presented to them if it is a form of development that has not gone out for any public consultation and no-one has been invited to make a decision: the decision-maker will only have one side of the story before them. I think that can lead to bad outcomes.

I know it is a long-winded way around saying it, but my direct question for the minister is: will a document such as the current code of conduct be incorporated into this new regime as either a practice direction under clause 42 or a practice guideline under clause 43?

The Hon. G.E. GAGO: I am advised no, that the codes of conduct are dealt with in schedule 3. We are happy to look at some of the issues that you have raised during the implementation phase, and we might look at regs or whatever might be appropriate.

The Hon. M.C. PARNELL: I thank the minister for that—

The Hon. G.E. Gago: I hope you don't want to repeat it all at schedule 3.

The Hon. M.C. PARNELL: No.

The Hon. G.E. Gago: Excellent.

The Hon. M.C. PARNELL: No, I will not. I have had my say. Although, of course, by the time we get to February and schedule 3, the minister will have forgotten my words and I may—

The Hon. G.E. Gago: Never! I hang on every word.

The Hon. M.C. PARNELL: I thank the minister for her consideration with that. I have another issue in relation to clause 42 raised by the Local Government Association. They wanted confirmation of whether councils would be bound by practice directions. I think the source of their question is clause 42(5)(a) which provides that: 'A practice direction does not give rise to any liability of, or other claim against, the commission...' They were suggesting that the words 'or another relevant authority' might be added to it. They wanted to bring themselves within the protection of that paragraph, so that no liability would arise. Could the minister just address that concern of the Local Government Association?

The Hon. G.E. GAGO: The short answer is yes, they are bound. We do not believe, however, there is a need to make any further changes because they cannot be liable for something that they are bound by. The provision ensures that no-one can sue the commission for exercising its regulatory function by making a practice direction—so they are, in fact, protected.

The Hon. D.W. RIDGWAY: I am interested in how the practice directions are promulgated. Who does the commission consult with to put these practice directions together; because some stakeholders have been concerned that the planning commission is not required to consult, so I want some clarity around exactly how they are formed.

The Hon. G.E. GAGO: Generally a practice direction deals with quite minor administrative issues, for instance, the type of form that you might fill out under a particular set of circumstances. It does not require prescriptive consultation. There are certain provisions of the bill that require consultation and approval by the minister. I am advised that currently, for instance, if a fairly standard form needs to be changed, we have to change regulations, so it is cumbersome and silly and it slows down the business of government and its statutory bodies. This would help streamline things and allow those administrative changes to be made in a timely way.

The Hon. D.W. RIDGWAY: Just for clarification: so there will not be any consultation on the practice directions.

The Hon. G.E. GAGO: There could be. That is a matter for the commission to decide; however, as I have outlined, it is something that we would not anticipate would necessarily be regularly required given the nature of the matters that practice directives go to.

Clause passed.

Clause 43 passed.

Clause 44.

The Hon. M.C. PARNELL: This is one of the key issues for the Greens in this bill—the Community Engagement Charter. It is probably the issue on which I have had most correspondence, especially from local community groups. It is up there with the urban growth boundary and the infrastructure arrangements when it comes to top issues in this bill.

I want to address in general terms, before I move my amendment, some observations on this community engagement charter and, in particular, on the philosophical underpinning of the charter, especially in relation to the so-called up-front consultation with the community at the expense of the so-called downstream consultation. The minister said in her second reading conclusion:

It has been suggested by the Hon. Mark Parnell that an approach that favours up-front engagement sounds nice in principle, but in practice is unrealistic and unachievable and because of this, so the argument goes, rights of consultation which apply downstream in the system should be maintained alongside the charter. With respect, this is a criticism founded in outdated thinking and not supported by the expert panel's recommendation. If we accept this argument the promise of this reform will be negated.

In response, the first thing I would say is that I have never said that you should not consult up-front—of course you should. What I say is that you should not use up-front consultation as an excuse to deny community participation rights later in the process at the pointy end.

In terms of whether my thinking is outdated, I refer the minister to what the experts in this area say. One of the groups that the government has been very keen to partner with is the International Association for Public Participation which has an Australasian chapter. If we look at that organisation's core values number one states that:

Public participation is based on the belief that those who are affected by a decision have a right to be involved in the decision-making process.

Its core value No. 4 states:

Public participation seeks out and facilitates the involvement of those potentially affected by or interested in a decision.

You just have to look at those words—they are quite broad and they do not say public participation should only be confined to the setting of policy and that citizens should be disempowered when it comes to making decisions about actual projects. The minister went on to say:

Indeed, the most important function for the new charter will be giving the community the opportunity to literally shape the new planning rulebook and, in doing so, help create something that is clear, simple, easy to understand yet sophisticated and innovative. It is precisely because of this that there is less need for bureaucracy in prescriptive consultation on individual development proposals. When the rules are clear about what is allowed people are far less likely to need to get a second bite at the cherry...

Of course, the judgement about whether people need a so-called second bite of the cherry is the government's view of the world but it is not the community sector's view. I have been working in the space of community engagement and planning and environmental decision-making for the last 25 years and I think the government has got this quite wrong.

I also think that at one level it is also dishonest because it is pitching this bill and this provision as an improvement on what I agree are inadequate mechanisms for community engagement. However, the bill provides less rights for citizens in relation to the decisions that affect them most, and no amount of spin will get around that fact. The community has long said that it wants to participate at all levels of decision-making; from writing the rules, that is up front, to the application of those rules and to individual development applications, which is the downstream end.

I think the minister really gave the game away when she said, 'and then there are those who are unlikely to ever accept the umpire's decision.' I think that goes to the hub of this. Mr Rau has got it into his head that community consultation is all pain and no gain. He thinks that people need to be led by the nose, kicking and screaming, to a bright and shiny future because, if left to their own devices, they will just oppose everything. I think that is a cynical view of the world, and it is not my experience.

Most of the groups I have worked with are open to change, provided it is good change. They want liveable communities with a diversity of opportunities. I think most people also realise that change is inevitable and that much of that change can also be desirable, but they hate the way that, in a democracy, they have no say over the things that matter to them most. It does not play well communities to tell them to shut up because they had their chance, perhaps five years ago when the policies were being written, and if they did not take their chance to debate policy then, they forfeited their chance to engage in debate when the bulldozers were ready to start rolling.

Of course, when faced with change most people do start by querying what is proposed, and they need convincing that the change will improve their life. Most people's starting position is that the devil you know might be better than the devil you do not know, but that is the job of government, to work with communities and to get good outcomes. The supposed legion of people who oppose everything haunts the imagination of minister Rau, but it does not haunt the streets of Adelaide or of South Australia.

What has to be remembered is that often the reason people oppose developments is because they are bad developments and they deserve to be opposed. In those rare situations where neighbours or other so-called third parties do manage to get a hearing in front of the umpire—and the umpire, in my use of the word, is the Environment, Resources and Development Court—their success rate is higher, in fact, than those for development applicants who appeal. That is especially the case for matters that go to trial. Usually the third parties have a much higher success rate because they are right, because the developments are inappropriate.

I do not pretend that I was the greatest of courtroom advocates, but at one stage my record in challenging the decisions of the Development Assessment Commission was 10-zip. Mind you, Mr Brian Hayes QC told me to enjoy the moment while it lasted because, as an experienced advocate, he knew it would not. However, at one point it was 10-nil against the Development Assessment Commission. The importance of those cases is that they were the catalyst for change. They changed administrative structures; for goodness' sake, they lead to a whole new act of parliament being introduced, the Aquaculture Act.

That act would not have been introduced if the Conservation Council had not had the right to challenge developments in court. They challenged aquaculture developments on two occasions—four developments on one and six on the other—and they were successful on both occasions, and it resulted in law reform. It resulted in a far more rigorous assessment process. That is why downstream opportunities to engage are important. Under the government's Brave New World such cases would not be allowed. They would not happen, and bad decisions and bad processes would be locked in. That would be to the detriment of communities and our environment. In her second reading summing up the minister also said:

The key point here is that we should not, as the Hon. Mark Parnell suggests, simply write legislation that describes human nature as it is. If we did that, after all, we would not have laws against discrimination, violence or theft. We should instead seek to design a system that will bring out the best in people. Our system cannot afford to simply default to old habits that we know push up the costs for everyone.

The minister's speechwriter, in that case, makes an interesting but ultimately irrelevant point, but at least does us the courtesy of cutting to the chase, especially in the final sentence. First of all, I do not think I am devaluing the contribution that citizens can make to the planning process the way the government is. I think that the words the minister has used are similar to those of a benevolent dictator. The government says it wants to design a system that brings out the best in people, well so do I.

The government and I differ in that their path to enlightenment is to cut communities out of the process, limit their rights to participate and protect them against themselves. According to the government, we would all be out there discriminating, beating each other up and stealing if we dared to acknowledge the reality of the way people actually engage in society. The money shot is in the final sentence of the paragraph that I quoted. The minister said:

Our system cannot afford to simply default to old habits that we know push up the costs for everyone.

So, that is it: citizens have to get out of the habit of expecting to have rights, or to have their say, or to be involved in matters that directly concern them, because this dirty little habit of democracy is costing someone money. That is what this is all about, it is about money, and it is not hard to understand why.

If you are a property developer, the thing that you value most of all, aside from getting your final development approved, is that you want to keep costs down and you want certainty, and we hear that word all the time. What it means from a developer's perspective, understandably, is that they do not want any surprises; they want to deal with as few agencies as possible; they want the rules to be clear and flexible in their own interests; and they particularly do not want to have to run the gamut of public consultation or, heaven forbid, third-party appeal rights against their projects. Of course, developers demand the right to go to the umpire—the court—whenever they think the decision-maker has got it wrong, but they do not want anyone else to have that same right.

We are, of course, ahead of ourselves, and I will address the issue of third-party rights when we get to those clauses. But I just make the point now: that a developer unhappy with a decision almost always has the right to go to an umpire. Neighbours, community groups and others who have problems with development approvals rarely have the right to go to the umpire.

I will finish with this point about whether public participation in development assessment does 'push up the costs' for everyone, as the minister said. Well, it does push up costs, but not just in the way the minister has described, because when bad decisions are made, with no right of comment or no right of appeal, the costs may well be borne by the poor neighbours who have to live with the consequences.

When inappropriate developments might put in peril the fate of an endangered species, or where a subdivision application threatens a precious ecosystem, then yes, the cost is borne by the environment. But what the minister is getting at here is that the public participation does not necessarily come cheap and of course, done properly, it can cost money and it can take time, because all thorough processes do. What is really driving this push is that the developer's natural desire for certainty means that they are not willing to accept the possibility of opposition or delay to their projects, but I put it to the committee that an alternative view of the world is that part of the cost of doing business is that citizens also have the right to have their say. It need not make the process longer, but it is part of the cost of doing business. It is the so-called social licence to operate. Community engagement is not red tape, it is our right in a democracy.

Having had that spray, the charter could be a very useful tool or it could be a load of rubbish. We will not know the answer to that because we have not seen it. The government has not seen fit to share a draft with us; to be honest, I do not think there is even a draft in existence, so we do not know what they are thinking about. The best we can do—and this is to foreshadow a series of amendments I have to clause 44—is to get the drafting instructions right. This clause contains the drafting instructions for the charter. If we get the drafting instructions right, we have a much better chance of getting the final product right. I am happy to move straight on to the amendment unless other people need to respond to what I have said.

The Hon. G.E. GAGO: There are several amendments which have been raised both in relation to the character, but also further on in the bill in relation to the e-planning system, the rights of notification, consultation and appeal association with different categories of development. It is important to reinforce the government's general approach here, noting that they inform our position in relation to amendments moved by the Hon. Mark Parnell here and further on in the bill. In particular, the government considers the Hon. Mr Parnell's amendment No. 18 to be the test clause on the proposition that consultation should, as far as possible, be weighted towards up-front discussions on policies and plans and commensurately limited during the assessment of individual development applications that lie within the envelope of expected development contemplated by the planning rule. We believe that amendment No. 18 is a good place for a test clause.

The Hon. M.C. Parnell: For everything?

The Hon. G.E. GAGO: No, in relation to the consultation, that consultation should, as far as possible, be weighted towards the up-front discussions on policies and plans and commensurately limited during the assessment of individual development applications that lie within the envelope of expected development contemplated by planning rules.

The Hon. M.C. Parnell: Sorry, 18, you said?

The Hon. G.E. GAGO: Eighteen; alright. I am talking to No. 18. The government opposes this amendment and regards it as a test, as I have said, because I think the subsequent amendments seek to restore consultation and notification rights for certain types of development, of which there are several. The community engagement charter is designed to be performance and outcome based and seeks to move away from the highly formulaic and prescriptive community engagement regimes which tend, for example, to require that a person is sent a letter and provided with 28 days to respond in writing, etc.

The form approach is one where consultation consists of ticking boxes, and often when people later come to fully understand the implications of a proposal and then express concerns, they are told, 'But you were sent a letter.' We can and must do better than this. We want public consultation that is meaningful and effective. The charter will deliver this and give effect to the comments clearly made by the Expert Panel on Planning Reform, that people want greater, more meaningful and earlier involvement in the planning system.

The charter will deliver this by providing legislative requirements that will set clear benchmarks for meaningful and genuine engagement with communities, particularly in the early stages when planning policies are being formed and tested. It should not be about just ticking boxes. The Hon. Mark Parnell wants to remove this principle. He just does not accept that the principle of weighting engagement forward must be matched with more limited opportunities downstream. Some of his later amendments bear that out.

This was a fundamental recommendation of the expert panel. As I said in my second reading summation, we will not resile from this position. Yes, we accept that it will be hard to make the change in culture and practice; we know that will be challenging. We need to move beyond the one size fits all approach to the engagement up-front and yes, we need to get better at using online tools to improve the reach of engagement and empower citizens to get involved in conversations about the future of their communities.

That is what this charter will deliver, but it can only deliver if the parliament agrees with the fundamental underpinnings on which it is based. Well done, up-front engagement trumps the need for downstream consultation on settled policy rules. The government agrees that this means engagement will need to be well delivered and mindful of the need of each audience. The government agrees engagement should be sustained and delivered, ideally at the local level.

As both the Hon. Mark Parnell and the Hon. David Ridgway suggested in their second reading debate, there are many examples, both interstate and around the world, of good engagement strategies and practices that we can learn from and adapt in developing our charter. We have drafted this provision, and indeed the whole bill, to be weighted towards people and communities being engaged at an early stage and scaled back when dealing with settled or advanced policy. The Hon. Mark Parnell does not agree with this approach. He thinks we should still allow for extensive downstream consultation as well because, as he put it, we should be writing consultation requirements to reflect human nature.

Of course, we agree that our current system fails to inform most people about the basic zoning requirements for the area they live in, which many find out for the first time when someone wants to erect something next door to them that they hate and they say, 'By the way, why didn't someone tell me that could be built there?' That is precisely why we are moving to rewrite the planning rules in simpler, easy to understand language and get them online for everyone to see. That is why we agreed to some of the other amendments the Hon. Mark Parnell proposes with respect to both the charter and the planning portal.

The message we are sending to those who are required by this bill to consult is: get in early, engage early, speak to communities early and do not leave it until the last minute. The message the Hon. Mark Parnell's amendment sends is: if you do not get what you want in round 1 then come back and have another bite at the cherry. With respect, this slants the whole process in favour of busybodies and those who will never accept their neighbour's right to enjoy and develop their own land.

This is not just about developers, it is also about the thousands of mums and dads who have waited for an extraordinarily long time, because of their neighbour's objection, to erect or make some minor change that, quite simply, constitutes a basic home renovation. The bulk of matters that go into the system and that are in the system are matters relating to verandahs, sheds and other simple home renovations. These are the things that clog up our system, clog up the lives and cause enormous anxiety and neighbourhood conflict for, as I said, thousands of ordinary mums and dads.

So, if we get the rules right up front, the need for this type of bureaucracy evaporates. We will, therefore, be opposing the Hon. Mark Parnell's subsequent amendments that seek to reintroduce notification and consultation rates on an expansive basis. I would also like to allay some concerns that have been expressed that the charter will supersede the role of local government in consulting the community around planning matters. The government acknowledges the skills and expertise of local government in engaging with the community and recognises their efforts in developing effective tools and mechanisms to do this. We believe the charter will support and enhance their engagement and consultations with the community and deliver consistent engagement across the state.

The Hon. D.G.E. HOOD: I think, with all respect, the Hon. Mr Parnell's passion on this issue has been consistent, if nothing else, for a long time and he has put forward a point of view. I would like to tell a quick anecdote about my experience with the planning system in recent times, which gives me a very different view of the planning system. Earlier this year, my wife and I were seeking to put an ensuite on the side of our property. This will be a quick two-minute story, if I can beg the indulgence of the chamber. So, it would have been on the boundary of the property, built to come off the side of our house. It was approximately 4.7 metres long by 1.5 metres wide. I will cut to the end of the story and say that the good news is it will be finished this weekend. But—

An honourable member interjecting:

The Hon. D.G.E. HOOD: Piece of cake, that's right. But the fact is that to get approval for this ensuite was tortuous, to say the least. In fact, because of the nature of exactly where our property is situated—we have quite large properties either side. We are also on quite a reasonable size piece of land, about 750 square metres. The property that is next to us on one side, which is quite a large block (1,000 square metres, or thereabouts), was subdivided many years ago and there are, I think, three townhouses at the rear of that property, behind what is a very large house at the front of the property.

Because of the absolute stupidity of our current system and the over-consultation required, everyone of the people in that townhouse had to be sent a letter by the council advising them on what we wanted to do and asking if they had any objections, despite the fact that the furthest townhouse from where we were proposing it and have since built this ensuite would be in the order of 80 to 100 metres away, and they would never see it. It is completely invisible from their property, completely invisible from all of the townhouses.

Furthermore, the property behind us was sent a letter advising that we were doing it as well. Our ensuite would be 200 metres from where they live, or 150 at the very least. There is a tennis court behind us leading onto their property—ridiculous. In fact, we know the people behind us quite well. He came around and knocked on my door and said, 'You're building an ensuite?' I said, 'Yes, we are.' He said, 'Why do I give a stuff?' They were his words. I think he is right: we over-consult. I think that just goes to show why I think the government has got this right. We need to wind that back. It has gone way too far for way too long.

The other comment that I would like to make is that, when we talk in terms of development, we often hear the words 'good development' and 'bad development'. We hear these terms used all the time. The very word 'good' or the very word 'bad' necessitates an element of subjectivity. What I may regard as a so-called good development someone else may see as a bad development, and vice versa. I think some people assume that there is a general agreement on what is a good development. That is just simply not the case. There may be in some limited cases, but I think overwhelmingly it comes down to people's individual personal opinions.

It means that, when you do consult, you get an individual's personal opinion even when they are not directly affected, as I said, as can often be the case. I am sure the Hon. Mr Parnell will be sorry to hear this, but because of the reasons I have just outlined, the example I have given—and I can give many, many more; I do not want to detain the chamber—that is the essence of why we will not be supporting the amendment.

The Hon. D.W. RIDGWAY: I just have a couple of questions. Before I ask them I will certainly indicate that this is one of the reforms that the opposition is very supportive of. In my time as shadow minister, similar complaints have come to me, as the Hon. Mark Parnell and others, and certainly the Hon. Dennis Hood, have spoken about. To bring the community on early is very important, because people are not informed early in the process. It is often only when, as the minister said, something actually happens that they realise that it is part of the development plan.

I think it is really important, and the opposition supports this community engagement charter, and the earlier you engage the better. It is a shame perhaps that the minister did not do that with the bill itself. I know he would say that he engaged early, but he is still delivering amendments. I know the industry have yet to give any formal feedback on their final position around infrastructure levies. We have four or five hours left of the parliamentary year, so I think it would have been better if the minister had practised what he preached.

This part of the bill is, in the opposition's view, way more important than the urban growth boundary. That is why we are happy to remove the urban growth boundary. It is keeping the community informed and engaged about exactly what is going to happen. I know the minister referred to the thing that happened in Western Australia, called Dialogue with the City, where the city was involved in very broad consultation. It was probably quite expensive, but it took the community with them, and in all of these things there is some negotiation and some give-and-take.

In the end, they arrived at the metropolitan planning scheme, I think it is called, in Perth, where the community had some certainty about what was going to go on, a rough time frame, and the government had an idea of what was required for the provision of infrastructure; so everybody was on the same page, and the city could develop into the future. I also make the point that when I was a boy at school Adelaide was a bigger city than Perth, now we see it as something very different.

I have a couple of questions before we move to the Hon. Mark Parnell's amendments. The Dialogue with the City in Perth was quite expensive. It was about $1 million. Who will pay for the community engagement charter? I assume it will be the government. I am just interested in what it will cost. What is the process the government will go through to give effect to this community engagement charter?

The Hon. G.E. GAGO: Before I go on and answer those two questions, I just want to put on the record that the comments of the Hon. David Ridgway are incorrect. He has said a couple of times now that we are still in negotiation and industry has not received a final position from the government, and that is just not so. The negotiations are over. The government has indicated its final position to industry. I believe that was done yesterday. The government will not be considering any further amendments or putting any amendments forward in this place. It may after it leaves this house. There will obviously be work to be done in between houses and when it goes back to the lower house, but our position in relation to the debate in this place has been finalised.

In relation to the matters raised about the charter, the commission will develop the charter and then, as councils and agencies go about their work that may be touched by the charter, they will need to put in place those elements to make sure they comply with the charter. There might be change that happens in a progressive sort of way. It is believed that the savings councils will derive from the proposed changes to the development assessments will and can be reallocated to assist them to cover the costs of the charter engagement.

The Hon. D.W. RIDGWAY: So it is envisaged that local councils will be paying rather than the Planning Commission?

The Hon. G.E. GAGO: The short answer is yes.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Is this finishing your line?

The Hon. D.W. RIDGWAY: I just want to respond to something the minister said, that the statement I made was incorrect that industry had not agreed. It is a wonder of modern technology: we have live streaming and I have received text messages to say that that statement is incorrect. I think what the minister is trying to say is minister Rau has written to industry saying he is finished with his negotiations; they actually have not agreed. So, I think it is a difference between yes, they have agreed, and no, they have not. An agreement has not been reached, and I am aware that a letter has been sent to industry groups. Can the minister also confirm that that letter was sent to maybe not all of media but certain aspects of the media this morning as well?

The Hon. G.E. GAGO: The Hon. David Ridgway is incorrect again, and Hansard will confirm this. I never said that the industry had agreed. What I said was that the Hon. David Ridgway had stated, more than once, that the government was still negotiating with industry, and that is what I refuted. I put on the record that we are not: we are no longer negotiating. He indicated that industry had not seen our final position. They have: our final position has been outlined. There was no letter, I understand, but rather an email that went to key industry groups.

The Hon. D.W. RIDGWAY: Was that email (and I guess that is a modern letter and I am not fortunate enough to have possession of it but I have seen a copy and it looks like a letter to me but in email form) also sent to certain members of the media as well? I make the point that we talk about talking in good faith and early engagement but, clearly, it is now the strategy of the government to say, 'This is our position and, here, media, you have it so that you can help put pressure on industry for us.'

The Hon. G.E. GAGO: Again, let me just clarify what I have put on the record, and that is that the government is not negotiating about further amendments in this place. That is what I have been trying to clarify in terms of the Hon. David Ridgway's comments. In relation to whether the email was sent to media outlets, I do not know. I do not have that information.

The Hon. D.W. RIDGWAY: I have one final comment about the modern technology, and often the minister during question time refers to her mobile phone. I put this on the record from one of the industry groups:

We have been advised that negotiations around infrastructure have been deferred until the new year.

It is not that negotiations are over, as the minister said.

The Hon. G.E. GAGO: I put on the record that 'the government's position is'.

The Hon. J.A. DARLEY: I indicate that I will not be supporting the Hon. Mark Parnell's amendment.

The Hon. D.G.E. HOOD: I neglected to say in my contribution earlier a couple of key things which are quite significant to the overall tale that I told and that is that, despite the fact that the original application for the en suite I mentioned was put in in late January, as I recall—it might have been very early February but, roughly, late January—the actual en suite building itself will only be completed this weekend. Of that entire time, the construction phase has been about 30 to 40 days—35 days, roughly. The rest of it was compliance, forms, planning, planning, planning.

I think the significant thing is that there was actually no objection at all from any of the people despite the fact that I think 12 different groups had to receive letters informing them exactly what we were going to do. There was actually no objection from anyone at all, including the people whose property we share that boundary with, that the border of the en suite was going to be on. In fact, they said to me, 'We would like to fill out the form in a way that says that we agree with it. As the only neighbour really affected in any way, we agree with it and would like to support it.' But the forms they were presented with did not have an option to support it. The only options on the form were, essentially, what do you not like about it? I think there really is big scope for change in this area, and that is our position.

The Hon. G.E. GAGO: I will just help out the Hon. David Ridgway by quoting one of the paragraphs of the email:

Although the minister is prepared to consider and respond to your remaining outstanding issues, any potential amendments to the infrastructure scheme provisions will not be dealt with until the bill is returned to the House of Assembly where the status of the entire bill is clear.

The Hon. M.C. PARNELL: I thank the minister for her response. She is absolutely correct: we disagree, which is no surprise to anyone. I did take some comfort from the words she said, so I have actually proposed a few minor wording changes to the drafting instructions to the citizen's charter, which I feel the government may be in a position to support: I will know very shortly. I now move:

Amendment No 16 [Parnell–1]—

Page 44, line 26—After 'reasonable,' insert 'timely,'

This amendment is to include the word 'timely'. It is a pretty simple and self-evident change and it is actually entirely consistent with what the government has said it wants to achieve, and that is to make sure that people are consulted as early as possible so as to have the greatest opportunity to influence the outcome. The addition of the word 'timely' makes it clear that that is what is to happen. I certainly will not repeat the Mayfield story, the one where the citizen participation was two weeks after the decision had been made; that is not timely. If we put the word 'timely' in, then I think it will make it very clear that the upfront consultation will be right upfront before decisions are made rather than after.

The Hon. G.E. GAGO: The government rises to support this amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition will also support the amendment.

Amendment carried.

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

Amendment No 17 [Parnell–1]—

Page 44, line 27—After 'opportunities' insert:

to gain access to information about proposals to introduce or change planning policies and

Flushed with success, I rise to move the next one. Again, I might be pushing it but we will see. Basically this is a wording change which is designed to write in, if you like, to the drafting instructions for the citizens' charter the notion that it is important for people to access information about proposals to introduce or change planning policies.

The concept of access to information is important. I have mentioned before the European convention on public participation in environmental decision-making which has as its three pillars access to information, public participation and access to justice. So it is the access to information that is important. I accept the government's intention to improve access to information. I think the planning portal, if it fulfils all that we hope, will be an excellent initiative and I am hoping that the government will see fit to support my amendment No. 17 as well.

The Hon. G.E. GAGO: The government is thrilled to rise to support this amendment.

The Hon. D.W. RIDGWAY: I indicate the opposition will be very happy to support this amendment.

Amendment carried.

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

Amendment No 18 [Parnell–1]—

Page 44, lines 28 and 29—Delete paragraph (b)

At this point I rise with a heavier heart because we have agitated this point at some length and I see where the numbers are on this one, that it is not going to be supported. I want to put on the record the fact that I have had a communication from the Hon. Kelly Vincent, who is not here today but I have heard she might be in for the afternoon session, we will see how it goes, and I have it from her that she is supportive of this amendment. Also I put on the record that the Local Government Association is supporting this amendment.

The Hon. R.I. Lucas: The Hon. Tammy Franks?

The Hon. M.C. PARNELL: My colleague the Hon. Tammy Franks is delighted to be supporting this amendment. The other supporters are certainly the Community Alliance, the Environmental Defenders Office, the Conservation Council, National Trust. The community groups that I have been working with on this bill for the last several months are supportive of the amendment but I can see that I do not have the numbers to carry it today and, therefore, I will not be dividing on it because everyone has put their position on the record or I have done it for them, so I do not need to divide on this clause.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the amendment. I think I have outlined before that we see the failings of the system and, if I use Mount Barker as an example, there was a lot of work done early but the community was not brought along with that. Whether it was a good or a bad development, the community did not really know about it until the end of the journey. So, we have certainly supported early engagement at the upfront end of policy development, so we are certainly supportive of the government's position and will not support the Hon. Mark Parnell.

The Hon. G.E. GAGO: The government, for the reasons I have already outlined, will not be supporting this amendment.

Amendment negatived.

The Hon. D.W. RIDGWAY: At the top of page 45, which is where I think the Hon. Mark Parnell's next amendment is, it states in paragraph (f):

insofar as is reasonable, communities should be provided with reasons for decisions associated with the development of planning policy (including how community views have been taken into account).

With the definition of 'reasonable', who actually defines what is reasonable? It is a very open-ended statement.

The Hon. G.E. GAGO: The government cannot support this amendment.

The Hon. D.W. Ridgway: It wasn't an amendment, it was a question.

The Hon. G.E. GAGO: I beg your pardon—you haven't moved it? The word 'reasonable' is really only a principle and we do not think a lot rests on it, but we actually do not believe this is the right place to address it—it should be in the portal provisions.

The Hon. D.W. RIDGWAY: You do not believe it is the right place to address what, and what should be in the portal?

The Hon. G.E. GAGO: The issue of 'reasonable'. I am talking mainly to amendment 19 of Mr Parnell.

The Hon. D.W. RIDGWAY: I am just asking a question about your bill. Paragraph (f) says:

insofar as is reasonable, communities should be provided with reasons for decisions associated with the development of planning policy...

Who defines what is reasonable? I am asking the question before he moves his amendment.

The Hon. G.E. GAGO: It has been described to me as being like drafting instructions. In terms of who, it is basically principles that the commissioner and also the minister put in place when developing the charter, and, of course, the charter is also subject to parliamentary scrutiny.

The Hon. D.G.E. HOOD: I will ask an obvious question for clarification: is the charter binding?

The Hon. G.E. GAGO: I am advised that the short answer is yes.

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

Amendment No 19 [Parnell–1]—

Page 45, after line 3—Insert:

(g) insofar as is reasonable, members of the community should have access to the same information that is available to relevant authorities in relation to the assessment of applications for planning consent;

(h) insofar as is reasonable and relevant, information should be routinely published on the SA planning portal rather than requiring specific applications to be made in order to gain access to information that is relevant to planning or development in the State;

(i) insofar as is reasonable, information should be provided to members of the community free of charge.

I will move this amendment, but the minister said earlier (and I think she is correct) that the previous amendment is somewhat of a test for provisions such as this, which basically assume that the charter will retain the right of people to participate downstream, as it were. It does technically still stand on its own, so I will move it, but I am not going to divide on it.

The Hon. Dennis Hood has asked whether the charter is binding, and the minister answered that, yes, it is, but with no consequences for breach. In other words, if the charter says you must consult the community in a certain way, and for whatever reason it does not happen, no-one can do anything about it. For me, the definition of 'binding' usually means 'enforceable'. So it is not enforceable. Whilst I have moved this amendment, I appreciate that it does not have the support of the committee.

The Hon. G.E. GAGO: I will talk to our position on the amendment in just a minute, but I need to set the record straight: there are consequences. The charter is binding, and there are consequences. The commission can order certain things to occur. For instance, it can order a council to do certain things and, if they do not do it, the commission can go ahead and have those matters addressed, and send the bill to the council, so there are consequences. Sure, they cannot be sent to court, but there are other ways that the commission can enforce its decisions.

It is not for that reason, but we are not going to support the amendment either—not as it is currently drafted. We are happy to engage with the Hon. Mark Parnell to help find a suitable alternative, if that is possible, in terms of words, and we could look at having that addressed in the second bill.

The Hon. D.W. RIDGWAY: I am pleased the government has come to that position because we will probably take a slightly different position. It is one of those that we think has some merit so, in order to keep the amendment or the issue alive, we are sort of inclined to support it, but with the caveat that it is one of those amendments that, given we will be back here in February, we would like to perhaps work with the government and the Hon. Mark Parnell on and perhaps recommit it just to fine-tune the wording. We are a little concerned about any unintended consequences, but I think the intent is sensible. I indicate that we will be supporting this amendment, but with the caveat that we will seek to recommit it next year.

The Hon. D.G.E. HOOD: I am a little bit confused. I had understood this was consequential.

The Hon. M.C. Parnell: Some parts of it are—

The Hon. D.G.E. HOOD: Right.

The Hon. M.C. Parnell: —but it does stand alone.

The Hon. D.G.E. HOOD: Okay. Can I suggest to the minister that maybe it would be a good time to break. I need to have a close look at this, that being the case.

The Hon. G.E. Gago: We can do that.

Progress reported; committee to sit again.

Sitting suspended from 13:02 to 14:15.