Bills

Planning, Development and Infrastructure Bill

Committee Stage

In committee (resumed on motion).

Clause 70.

The Hon. M.C. PARNELL: We were considering [Parnell-1] 40 which is to impose an obligation on the minister to publish on the planning portal a copy of any advice that has been furnished to the minister by the commission. We got to the point where members had expressed two elements of concern. The first one was whether two business days was too short, and I am happy to adjust that figure so that it reads 'within five business days' rather than two. The second concern was put in a question by the minister that maybe multiple drafts might be caught rather than any final advice, so I think that is simply dealt with, and I think we can do that on the run by incorporating the word 'final' so that it reads 'a copy of any final advice furnished to the minister by the commission'.

Over the luncheon break a further suggestion was made by one of minister Rau's advisers, and the intent of that was that perhaps the freedom of information test, which is a test that goes to confidentiality, might be included in here as well just to make sure that the minister was not putting something up on the portal which may have infringed privacy or whatever. I have fed back to the minister's staff that, in principle, I think that we can put such a protection in place; however, I think it is at our peril if we try to draft a complex provision like that on the run.

I am in the hands of the chamber, of course, but what I would propose is that if we can agree—and I think, aside from the government, everyone else seemed to be quite agreed on a longer time—we will make it five business days, that is a week to seven days, and that we incorporate the word 'final'. I think we could let that go through. I have certainly given an assurance to the minister that if there is an extra level of protection that needs to be included in these words to protect confidential information, then we can consider that between the houses. This clause will not be Robinson Crusoe in terms of recommittals so, if members are happy to proceed on that basis, I move my amendment in an amended form:

Amendment No 40 [Parnell–1]—

Page 60, after line 30—Insert:

(9a) The Minister must, within 5 business days after taking action under subsection (9), cause to be published on the SA planning portal a copy of any final advice furnished to the Minister by the Commission for the purposes of this section.

The Hon. D.W. RIDGWAY: I indicate the opposition is very comfortable at this stage with those amendments and, like the Hon. Mark Parnell, I think if the government for whatever reason can find something wrong with it, I am sure that we could come to some other arrangement if we have to.

The Hon. K.J. MAHER: I thank the Hon. Mark Parnell for the work he has done on this. The government still opposes the amendment, but it is better than the terrible amendment it was before. If we can have a look between the houses, or if we are able to recommit, we could include words to the effect of 'subject to the protections afforded by the FOI Act' or however it is drafted to reflect that intention. I note the Hon. Mark Parnell's willingness to consider supporting this sentiment by a mechanism that we can look at.

Amendment as amended carried.

The CHAIR: The Hon. Mr Parnell's next amendment is No. 41, but subclause (10)(a) has already been dealt with in your amendment No. 33. Moving paragraph (b) would be a test for your amendments to clause 71; would that be right?

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

Amendment No 41 [Parnell–1]—

Page 60, lines 31 to 38—Delete subclause (10) and substitute:

(10) Subject to this Act—

(b) a decision of the Minister to adopt any other designated instrument, or the amendment of any other designated instrument, cannot take effect unless or until—

(i) the designated instrument or amendment has been laid before both Houses of Parliament under section 71; and

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

In some ways, it is a little bit unfortunate that this issue comes up at this point because, effectively, what I now need to do is speak overwhelmingly to clause 71 whilst dealing with an amendment to clause 70. The reason for that is that clause 70 basically sets out the procedure that the minister and the commission have to go through when changing planning policies. It makes sense that at the end of a clause like that that there would be a provision which says 'when it comes into operation'.

As it is currently worded, these designated instruments or planning policies come into operation when they have been approved by the Governor and there is a notice published in the Gazette. They do not come into operation until they are published on the planning portal, and they come into operation on a date to be specified, so they are fairly standard clauses for changes to the law—planning law, in this case, or planning policy—to come into effect.

The reason I need to move amendment No. 41—and as the Chair has rightly said, we have already dealt with paragraph (a) so I will not be moving that, I will only be moving paragraph (b)—is that it includes a new provision which says that a decision of the minister to adopt a designated instrument cannot take effect unless or until the designated instrument has been laid before both houses of parliament and every motion for disallowance has been defeated or withdrawn or has lapsed in accordance with the scheme set out in that section, and that section is section 71.

Of all the issues in this bill, we have not divided on too many of them. I am hoping we will not need to divide on this but, in case we do, I am certainly prepared to because this goes to the heart of the credibility of the planning system and, in particular, the credibility of parliament in its dealings with the planning system. I have spoken about this at some length over the last 10 years in parliament, so I will now give just a very potted version of why this is important.

Every member of parliament at some stage would have been approached by residents, by community groups or by other stakeholders who are dissatisfied with a decision that has been made by planning authorities in relation to planning policy or zoning—people who are unhappy about how land has been zoned, unhappy with height limits or unhappy with restrictions on the form of development that is allowed. The standard response a member of parliament has to give their constituent is, 'Not much I can do about it.' That is usually the response.

The constituents then come back and say, 'But, hang on. I've read the Development Act. There is a whole section called "parliamentary scrutiny".' When you read that section you can find a mechanism for either house of parliament to be able to effectively disallow a change to the planning scheme. People hang their hat on that clause and say, 'Don't you tell me, member of parliament, that there's nothing you can do about it. It says in the Development Act that you can disallow these planning schemes.' If you are in the know, you then have to say to your constituents, 'There's a catch. It says parliamentary scrutiny, it says parliament can disallow planning changes, but there is a catch.'

The catch is that a planning policy does not get to the floor of parliament, it does not get on our agenda, unless it is put on our agenda by the ERD Committee of parliament. In other words, as I describe it, the ERD Committee is the gatekeeper. If the ERD Committee resolves to disallow a planning policy, then that is the only mechanism by which parliament can decide the matter. It requires the ERD Committee to move to reject the change, then it goes to parliament and then either house can vote on it How often has that happened since April 1994?

The Hon. D.W. Ridgway: It has happened once in my lifetime.

The Hon. M.C. PARNELL: The Hon. David Ridgway interjects that it has happened once. I think the Hon. David Ridgway would recall that it did not actually get to a vote because heads were banged together and it was resolved outside the voting process. It was only that one time.

It would be unparliamentary to have a dialogue with the Hon. David Ridgway but, through the chair I could ask him how many times the ERD Committee, over the last 22 years, has considered a planning scheme with serious objections from a local council or from individual landholders. I could ask the number of times the Liberals and Greens have voted together to say, We don't like it.' I am not being facetious here—lots of times.

The problem is that the ERD Committee as a government-controlled committee, with the chair having the casting vote, does not send any planning scheme beyond the walls of that committee. They do not come to the parliament for voting. This is what I consider one of the frauds of the current Development Act, and it is a fraud perpetuated in the Planning, Development and Infrastructure Bill; that is, we hold out hope to citizens that their elected members might actually do something to represent their interests and might actually bring on something for a vote if clearly it is an unpopular measure.

The Hon. Dennis Hood is happy to have the local residents veto a certain type of planning change. I make the point that, consistent with that approach, if the people of South Australia through their elected representatives think a planning change should be vetoed it is a bigger electoral college—we are talking the whole parliament rather than just 51 per cent of residents or property owners in a certain area. The mechanism I am proposing is very simple and not one that I have made up. It is the mechanism we have already for regulations.

We are all well aware of the parliamentary scrutiny regime for subordinate legislation, for regulations, and that is that there is a special committee of parliament. The Hon. Gerry Kandelaars chairs that committee. That committee is charged with examining regulations. They can hear from witnesses, they can hear from stakeholders about the effect of regulations, and they can recommend disallowance. But, in parallel with that process, if any member of parliament thinks that regulations are inappropriate and ought be disallowed, then any member of parliament can move that way.

In my coming up to 10 years here, I would have seen probably several dozen motions to disallow regulations. Sometimes they are successful, sometimes they are not, but from a democratic perspective you have a system of laws and rules being created by the executive. They are not debated in detail in parliament; they are delegated or subordinate legislation. Parliament has a disallowance role.

Let's look at the planning system: it is exactly the same. These planning schemes, these designated instruments, effectively are planning laws and dictate what you can and cannot do. They have force of law. They will determine the outcomes of planning applications. It seems to me to be entirely consistent with the approach in relation to subordinate legislation to use exactly the same model for these planning schemes. It is not to say that the ERD Committee would no longer scrutinise these changes. They would still do that. They would still hear from witnesses. They would still potentially make recommendations.

In fact, I do not need to go into a lot of detail, but the ERD Committee met this morning. One of the items on our agenda was some people who are unhappy with where the zone boundaries had been drawn in relation to a country area in South Australia. Landholders were concerned that they thought the government had got it wrong and put the line in the wrong spot. They came and they spoke to the committee of parliament as to their concerns, and the committee can then go to the minister and say, 'We think these people have got a point. Maybe you want to have a think about changing where you've drawn this line on a map.'

I think that process should continue. It is a process I have been part of for 10 years, and I think it should continue, but the question for us now is whether that process with a government-dominated committee, with a government chair with the casting vote, should be the only way that the parliament can get to consider an important planning change. If you think, 'Yes, that's alright, that's the only way. We don't really want the same powers over planning laws as we want over dog management regulations,' so be it, you can stick with the status quo.

What I can say is that I am a regular attendee at town hall meetings where these issues are discussed. I do not believe in threatening other members, but I will just make the observation that, if any member of parliament wants to go along to one of these town hall meetings and say, 'We reckon this zoning change is crook and we would love to do something about it but we can't,' then I will have really no alternative but to remind people that, actually, you could have fixed this up. You could have fixed it up when the planning bill was being debated.

If members want to tie their own hands, and they voluntarily agree that zoning changes should never, ever be knocked off, regardless of how unpopular or how unsuitable they are, then do not vote for this amendment, but just remember the consequences. The consequences will be that, every time the community complains to you about planning rules and you tell them, 'Sorry, there's nothing we can do about it,' the response has to be: you could have, you could have fixed it up; you could have voted for these amendments.

I know I am going on a little bit, but the reason I have to move this amendment now is that the mechanism I have in mind is, like I say, the parallel mechanism. The ERD Committee will continue to deal with these planning changes but, in parallel, the parliament will have that right as well. What we do not want is for the parliament to be able to unreasonably hold up forever a planning change coming into operation. It has to be time limited.

At present, whilst the regulation disallowance is time limited in terms of bringing the motion or at least putting it on the Notice Paper, it does not matter if the vote is a year later because the regulation has remained in operation, so there is no harm done. You can sit on a disallowance motion forever, and it does not actually affect the operation of the regs; they keep going.

Under my model, I do not think these planning changes should come into effect until the parliament has considered it, which means you need some strict time limits to make sure that the parliament does not sit on it. We will see whether we get to clause 71 to debate any of the finer detail of my model, but I think people have seen it before.

Basically, I have a six-sitting day period. If the parliament has not dealt with it in six sitting days, then it is going to go through. I think it is a reasonable compromise. It allows the parliament to directly consider these planning changes, but does not allow the parliament to unnecessarily frustrate the process, as you have to actually get onto it quickly. That is the purpose. I think I sought leave to move my amendment No. 70 in amended form; that is, I will just be moving paragraph (b) of that amendment.

The Hon. K.J. MAHER: I rise to inform the chamber that the government does not support this amendment. I will not take too long but will speak briefly, as the honourable member did, not just to this slightly amended amendment but more generally to some of what is envisaged in the next set of amendments on clause 71—the parliamentary scrutiny.

I note that, during the member's contribution, he talked about the very, very rare circumstances in which these have been disallowed before. I think there was a suggestion from the honourable member that that is why it essentially needs more teeth and a more robust approach to allow parliament, not just the committee, to involve itself in these matters. I think equally one could make the argument that if it has happened so rarely in the past the checks and balances that happened before that are working very well. I understand what the honourable member is saying but I think equally you could argue that it happened so rarely because the checks and balances that were there before have worked very well.

The amendments, if passed, would alter the approach to scrutiny in the bill to bypass the ERD Committee and could end up flooding both houses of parliament with every designated instrument developed or amended under this bill. This would mean that, for example, the proposed amendment to the planning and development code, in order to rezone an area, would be prepared by the commission and consulted on in accordance with the community engagement charter and then subjected to a parliamentary scrutiny process far in excess of that imposed on the development plan amendments under the current Development Act.

The amendments would provide that no instrument or amendment can take effect until every motion for disallowance has either lapsed, been defeated or withdrawn. I note that the time frame (which I think we are going to refer to a bit later on) is six sitting days, but that still places a huge burden that is not there at the moment. This would have a very real possibility to stymie the very purpose of many of these reforms—which is to streamline and improve the current planning development system and help to unlock development in this state which is a very worthy aim and an aim that many members have already spoken about today and on previous days.

The Hon. D.W. RIDGWAY: I have a couple of questions of clarification that I would like to ask the mover and I guess it is, in practice, how this might work. If we were to support the honourable member's amendment and it became law, my understanding is that a member would be able to move a disallowance on any instrument that falls under or is captured by the bill or by this amendment, and that we have six sitting days to deal with it.

The Hon. M.C. Parnell: Not state planning policies.

The Hon. D.W. RIDGWAY: Not state planning polices but rezonings and a whole range of things. The wording here in (b)(2) is that it cannot take effect unless or until every motion for disallowance has been defeated or withdrawn or lapsed in accordance with the scheme that is set out in the section.

I will use this chamber as an example and you might correct me if I am wrong. In the last Senate election—which could happen in the Legislative Council under our current rules—somebody could be elected with a very small percentage: 1.5 or 2 per cent and in fact in the Senate less than 1 per cent. My understanding is that they could continually move disallowance motions, wait six days, lose it, stand up and move another one; wait six days, lose it, stand up and move another one and it could go on and on continually.

That certainly is not something that the opposition is attracted to because it is a mechanism for somebody who has a very small potential constituency who was elected but they will be, if you like, the lightning rod for people who want to stop a rezoning of something, to go to; to use a mechanism to continually frustrate the process. I would like to hear the member's response to that because that is of real concern to the opposition.

The Hon. M.C. PARNELL: I thank the member for his question. That is certainly not how I envisage this working and I do not think it is how it has been drafted. Basically it is a six-day time limit compared, for example, to 14 sitting days—which is the current disallowance period for regulations.

Certainly the way I have asked for it to be drafted, and the way I have interpreted it, is that it is not just a question of moving the motion and having it sit on the Notice Paper as order of the day, private business for ages and ages and then frustrating the ability of a final resolution to be made. Also, I do not see this as an example of—once the initial six days are up there is no further six-day period that starts. You have to get onto it quickly and if you are not onto it then parliament has lost the right to disallow. That is the way I see it going.

The honourable minister commented before that the system must be working well if it has not come to the chamber very often. I will just give an example. On the ERD Committee a number of years ago, one issue the Greens and the Liberals had in common was that we were very unhappy with the rezoning of part of the Glenside Hospital site, basically for offices and flats, because that was what was proposed.

My recollection is that the Greens and the Liberals voted together, and I think for a very short period we had the Hon. Bob Such on side as well. That was one of those rare cases where it did get through. Unfortunately, before parliament could sit again, the honourable member had a change of heart and so it became a 3-3 result and, under the Parliamentary Committees Act, the government appointed chair has the casting vote. That was a case of where you had the member for Bragg, for example, out there in her electorate saying, 'This is terrible. We shouldn't be doing this.'

I am offering you an opportunity to do something about it. There is no way you can deal with it at the moment because equal numbers on the ERD Committee mean that the government wins. That is why you have managed to find one example from about 13 years ago—it was certainly before my time. It is in folklore. I think it was to do with a bakery or something in the city. It was panel beaters, a crash repair business in the city. It is memorable because there has only been one in the whole time that the act has been in operation.

My answer to the honourable member's question is that I do see this as a tight process. It is not one that would drag on forever. If it turns out that there is further tweaking to clarify time limits, we can have a look at that, but the vote for now is on the principle. The principle is: should parliament be able to disallow, despite anything the gatekeeper might or might not do?

The Hon. D.G.E. HOOD: I thank the honourable member for his answer to the Hon. Mr Ridgway's question. I just want to pin him down because I am really trying to be clear in my own mind about this.

While I accept that it is not the honourable member's intention that these things happen, my reading is that there is nothing stopping that from happening. If somebody wanted to be difficult, for want of a better word, they could do exactly what the Hon. Mr Ridgway has suggested; that is, they could move the motion, six days later move it again, and just keep it going and going if they had a particular issue with a particular proposed development. They could just keep doing it and doing it and frustrate the whole thing because they individually did not like it. Is that possible under what you are proposing? My reading is that it is.

The Hon. M.C. PARNELL: I thank the honourable member. I can see why he would want to tie this down because it is important. My proposed amendment No. 45, which is to clause 71, proposes a new subclause (11). It states:

A House of Parliament may disallow the instrument if the House is acting in pursuance of a notice of motion given during the period commencing when the designated instrument was laid before the House under subsection (2)(b) and ending 6 sitting days after the report of the ERD Committee was laid before the House under subsection (10) (including in a case where the ERD Committee is still considering the matter under a preceding subsection).

That is, we do not want the ERD Committee to delay the process either. That is the way it has been drafted. If, as we explore it, people think, 'Well, it is not quite tight,' what I would say is that the intention was, and certainly my instructions were, that this was going to be a quick, tight process. Parliament cannot just keep deferring it. It has to deal with it quickly; hence the six-day time limit.

What members are probably referring to is if it was unreasonably adjourned day after day, a refusal to debate. If it is those sorts of issues, then we can have a look at whether something needs to be added to deal with that. My understanding is that it had to be dealt with in the six days; if that is not the case, we can talk to parliamentary counsel, but that certainly was my intention.

I can take further advice on it, but what I would like to get the committee's support on, given that there are the provisions of this bill where there has been a level of detail, a bit of uncertainty about whether it is the section we have just dealt with or this one, and what I am looking at is the principle. If this particular amendment to clause 70 goes down, then effectively the rest of 71 is consequential. We will have the status quo. We will have lost forever the right of members of parliament to disallow planning policy.

If you think there is a glimmer or a chink of potential and you want to work a bit more on the detail, you need to support this amendment now. Whether it is on recommittal or between the houses, we can tidy up any uncertainties to make sure that it is watertight, that there is no way that either house of parliament can delay voting on the issue. If that is the concern members have, certainly that is my commitment. I am happy to get that watertight provision in here, if it is not already. The failure of my amendment No. 44 means that we will not even debate clause 71 really because the status quo will remain.

The Hon. D.W. RIDGWAY: I will backtrack a bit, then finally give the member the opposition's position. The expert panel put in place by the government to review planning and all the commentary I have referred to about the opposition's policy around the independent Planning Commission of Western Australia was all predicated on growth and development. There is always an interesting and sometimes challenging arm wrestle between the community's interest and development, and honourable members are often in this place talking about that.

The minister would argue it is not the fault of the planning system, and I would argue it is after 14 years of the honourable member's mob being in government, and we are at the bottom of the pile as far as economic growth, economic activity and jobs. There is a whole range of indicators that show that South Australia has slipped below Tasmania.

Looking at this piece of legislation, I know that the honourable member's intentions are to have parliament more involved but, at the end of the day, when looking at this I can see a whole range of opportunities for frustration. I know the honourable member will be frustrated with where I am heading with this conversation, but he is probably not surprised because I have headed in that direction before.

As I said, potentially somebody could be elected to this place on a very small minority who may not even be as honourable as the Hon. Mark Parnell (because I think at times he is quite reasonable and sensible when it comes to some of these planning issues—not always), somebody who, just for the sake of wanting to be in the media and getting attention, could be constantly frustrating the system.

I can see what the honourable member's intention is, but I think the risk for the state is too great to allow the risk of somebody who does not have honourable intentions or who sees it as a way to wedge themselves in. I think this opposition, in both this chamber and the other, is way more honourable than, if there is a change of government, I suspect that opposition will be when they are sitting here.

I remind members about the time when we were doing the Olympic Dam indenture. The Hon. Mark Parnell was on his feet and I was in the corner of the room talking to the treasurer (I am not sure whether Kevin Foley was still the treasurer, but whatever role he had at the time) and Andrew Mackenzie from BHP. There were some comments made about the character of the Greens' member on his feet, and I explained who you were and how you fitted in.

Andrew Mackenzie was thankful for perhaps the role that the opposition was playing. I said to Kevin Foley and Andrew, 'Of course, if we were the government, Kevin and his mates would be with the Greens voting against this,' and Kevin said, 'Yes, we would.' Maybe it was just a late night, off the cuff comment but, at the end of the day, we have to make sure—

The Hon. G.E. Gago: That would be unlike him.

The Hon. D.W. RIDGWAY: Off the cuff, late at night—well, maybe. I probably should not mention his name in that sense, but I make the point that I am nervous. In a perfect system and in a perfect world, where people are there with all the right intentions, you possibly could have this extra scrutiny, but I am nervous that there will be opportunities in the future for future oppositions and future Independents or people who have been elected to this place to have an influence.

The Hon. John Rau says he does not want another Mount Barker on his watch, but it was his government. He might have been sitting in the corner not paying attention when it happened, but it was his government. He does not want that, but I do not want to be in this place saying, 'We don't want anything to happen at all and we want it to be frustrated.'

I know that will frustrate the honourable member, but the opposition cannot support this amendment for the fear of it putting too big a handbrake on what is going on and allowing parliamentary scrutiny to the level where it could frustrate the growth and progress of this great state at a time when we really need to try to grow and expand the state after 14 years, and definitely 16 years, of a government that really has not done the best job it could have. With those few words, and I know that the member will be disappointed, the opposition will not be supporting the amendment.

The Hon. J.A. DARLEY: Having regard to the intention of the Greens' amendment, and any suggested changes to strengthen it to make it clearer, I will definitely support the Greens' amendment.

The Hon. K.L. VINCENT: Just to assist the committee, Dignity for Disability also supports this amendment.

The committee divided on the amendment:

Ayes 4

Noes 16

Majority 12

Amendment thus negatived; clause as amended passed.

Clause 71.

The Hon. M.C. PARNELL: Amendments 42, 43, 44 and 45 are all the amendments to clause 71. They are consequential to the debate that we have just had; however, my understanding is that I can move them and not vote on them because otherwise they do not appear in Hansard and no-one will know what I tried to do. Is it possible for me to move them en bloc and have them voted down consequentially so that at least they are in Hansard?

The CHAIR: My advice is that it is a damn nuisance but just to assist you—there will not be a division, though, will there?

The Hon. M.C. PARNELL: No, I am not going to divide on them.

The CHAIR: The Hon. Mr Parnell, you can move the amendments en bloc.

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

Amendment No 42 [Parnell–1]—

Page 61, lines 4 and 5—Delete subclause (2) and substitute:

(2) The Minister must—

(a) within 28 days after adopting a designated instrument refer the designated instrument to the ERD Committee; and

(b) within 6 sitting days after adopting a designated instrument cause copies of the designated instrument to be laid before both Houses of Parliament.

Amendment No 43 [Parnell–1]—

Page 61, line 6—After 'referred' insert:

to the ERD Committee

Amendment No 44 [Parnell–1]—

Page 61, lines 37 and 38—Delete paragraph (a) and substitute:

(a) the Minister may proceed to make such an amendment and report back to the ERD Committee; or

Amendment No 45 [Parnell–1]—

Page 62, lines 8 to 28—Delete subclauses (10) to (14) and substitute:

(10) The ERD Committee must then prepare a report on the matter and cause copies of the report to be laid before Houses of Parliament.

(11) A House of Parliament may disallow the instrument if the House is acting in pursuance of a notice of motion given during the period commencing when the designated instrument was laid before the House under subsection (2)(b) and ending 6 sitting days after the report of the ERD Committee was laid before the House under subsection (10) (including in a case where the ERD Committee is still considering the matter under a preceding subsection).

(12) If either House of Parliament passes a resolution disallowing a designated instrument before it under this section, then—

(a) if the designated instrument already has effect under another provision—the designated instrument will cease to have effect (and if the designated instrument is in fact an amendment by virtue of the operation of subsection (1), the relevant designated instrument will, from that time, apply as if it had not been amended by that amendment); and

(b) in any other case—the designated instrument cannot take effect.

(13) If a resolution disallowing a designated instrument has been passed, notice of that resolution must immediately be published in the Gazette.

(14) If or when a designated instrument can take effect after taking into account the operation of section 70 and this section, the Minister may, by notice published on the SA planning portal, fix a day on which the designated instrument will come into operation.

Amendments negatived.

The Hon. K.J. MAHER: I move:

Amendment No 31 [Emp–4]—

Page 61, after line 35—Insert:

(7a) If—

(a) the ERD Committee is proposing to suggest an amendment under subsection (4); and

(b) the amendment is specifically relevant to a particular council or councils,

then—

(c) the ERD Committee must, before resolving to suggest the amendment, refer the amendment to the council or councils for comment and a response within the period of 2 weeks; and

(d) any period applying under subsection (5), (6) or (7) will be extended, by force of this subsection, by an additional 21 days.

The changes to a state planning policy, regional plan, the planning and design code, or a design standard are subject to parliamentary scrutiny through the ERD Committee. This amendment ensures that the ERD Committee consults with affected councils before resolving to suggested amendments that are relevant to those councils. This amendment has been made in response to a suggestion received during consultations with the LGA.

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

The Hon. M.C. PARNELL: I think this largely reflects the practice of the ERD Committee but I think it makes sense to formalise it. To be honest, most of the people complaining about planning changes are the councils. They are the ones who come to the committee and they are usually complaining about the minister unilaterally changing their hard work in revising their planning schemes and at the last minute the minister has gone and messed with it, so they come to the ERD Committee in the vain hope of some relief.

I think that in the case, for example, where it is a landholder who is upset at a planning change, then it makes sense for the council to be notified. Sometimes they will turn up to a hearing at the ERD Committee, but more often than not they will not. I think this is a sensible amendment and the Greens support it.

Amendment carried; clause as amended passed.

Clause 72.

The Hon. D.W. RIDGWAY: I move:

Amendment No 1 [Ridgway–4]—

Page 62, line 30—After 'may' insert:

, after seeking the advice of the Commission,

This is one of a number of amendments where we want to give more responsibility to the commission and take it away from the minister—a similar flavour to what the government has done with a range of their amendments too. I think it reflects some of the practices around the nation in other states where having more independence in the commission has been seen to be a positive. I know in discussions with some of the interstate Liberal governments and Liberal oppositions that they have said this is something we should be looking at where possible. My first amendment is after 'may' insert the words 'after seeking the advice of the Commission'.

The Hon. K.J. MAHER: I indicate that the government opposes this amendment. The government has listened to suggestions during consultations that the commission should have a greater prominence and has, indeed, been involved in the formulation of regional plans and hence has drafted amendments 12 to 15 as set forward. These amendments, which have already passed, will amend clause 61 relating to regional plans to place the commission firmly at the centre of this process of preparing regional plans consistent with state planning policies in the area that remains outside of the area for which a joint planning board has been constituted.

In an area for which a joint planning board has been constituted, the joint planning board must prepare the plan. Given this, I submit that the proposal, to involve the commission in providing advice as to changes to the code that comply with regional plans, is unnecessary.

The Hon. D.G.E. HOOD: I think I have been consistent in the position that we believe that governments should have the right to govern, but that said I think really what the opposition is asking here is not terribly onerous. All the amendment would do is ensure that the minister seeks the advice of the commission. I understand the minister's point that, given other provisions in this bill, that would already have occurred. That said, I do not see any harm at all in ensuring that that is inserted into the bill and for that reason we will support it.

The Hon. M.C. PARNELL: Our position is similar. It seems that the government's argument seems to be that we have incorporated lots of consultation with the commission, but we do not want to put it in here. I do not get it really. If it is overkill, so be it, but if the intention is for the commission to be involved then this makes it crystal clear that the obligation on the minister is to work with the commission so we will be supporting it as well.

The Hon. J.A. DARLEY: For the record, I will be supporting the opposition's amendment.

Amendment carried.

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

Amendment No 46 [Parnell–1]—

Page 62, after line 40—Insert:

(1a) An amendment under subsection (1) must be the subject of consultation under the Community Engagement Charter.

This really is in the same vein. It is basically incorporating a new subclause that an amendment under subsection (1) must be the subject of consultation under the community engagement charter. In my submission, it is why we have a community engagement charter—to drive consultation. Clause 72 talks about amendments to the planning and design code so it is a bit of a no-brainer really that those sorts of changes need to go through the process set out in the community engagement charter. We do not know what that process will be. That will be a debate for another day, but certainly I would have thought that this was consistent with what the government has said so far, so I would be surprised if it is contentious.

The Hon. K.J. MAHER: I would like to say that the government does not support this amendment. It was a key recommendation of the Expert Panel on Planning Reform that changes to zoned boundaries that conform with the strategic intent as mapped in the relevant regional plan should not require further consultation to be given effect. In other words, it is appropriate to consult on the regional plan, but not to litigate matters again if all you are doing is implementing that plan.

I know that the honourable member in the previous amendment said it is great to have further consultation and if it is overkill, then so be it. We do not agree with that. If it is overkill, then we think it is probably worth not doing. We think it is burdensome and will create unnecessary burdens, and we are keen to see development progress in this state.

The Hon. D.W. RIDGWAY: The community engagement charter is something which we do not as yet have an understanding of, or understand how it should operate. It will be interesting to see the format of that, although I am told that it is two or three years of regulations and drafting of planning policy and codes before we see it, so it may well be that Steven Griffiths will be the minister of planning dealing with it rather than the Hon. John Rau or any other minister who might be sitting up there or in another place.

The Hon. M.C. Parnell: Minister Maher staked a claim on this portfolio.

The Hon. D.W. RIDGWAY: Minister Maher: well, he will need some good advisers around him, and just as well he has some today. The opposition is willing to support this amendment. If the community engagement charter process works properly and the community is involved, that is the important thing. I should not always go back to what I learnt from the Western Australian model, but I recall their engagement with the community to map out the future growth of Western Australia, particularly Perth.

You then look at what happened in Perth. When I was a boy at school, Adelaide was the third biggest city in this nation and now we are the smallest state city in the nation, and Perth was smaller than Adelaide. The growth and the economic development that have taken place largely have been underpinned by what has happened in the planning system there and, in recent times, by the mining boom. The planning commission had dialogue with the city.

The minister and the planning officials in the gallery or advisers sitting over here should note that it is something well worth looking at to see how you engage the community to have some involvement in the future shape of the city and where people live. My study of that was how people actually understood about population densities, available infrastructure and the ability to deliver infrastructure, which is much broader than we have ever seen in this state from an engagement viewpoint. I think I spoke at length on that in my second reading contribution.

If the community engagement charter works properly, then I do not believe this will be an extra burden. We are happy to support it. I know the minister has some concerns about it being almost an overload and a duplication, but I think that if it is done properly it should not be a burden and not an extra layer of activity that slows down things. We will support it, but in the long-term it is dependent on how well the community engagement charter is developed and how well the community is brought along with that journey.

The Hon. J.A. DARLEY: I will be supporting the Greens' amendment.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Amendment No 2 [Ridgway-4]

Page 62, lines 41 and 42—Delete subclause (2).

This amendment refers to subclause 72(2), which states:

(2) The minister has an absolute discretion about whether or not to agree to an amendment under subsection (1).

Given our previous view that the commission should have more of a say, the intention of this amendment is to delete that. I referred to the WA model, which is often referred to around the nation as the best practice, and anything the minister does is tabled in parliament. I have not seen that anything to do with this will be tabled in parliament. We think it is a better operation if we take the minister out of this, so I urge members to support the amendment.

The Hon. K.J. MAHER: I rise to indicate that the government opposes this amendment that would significantly water down and fetter the minister's discretion in approval of changes to the planning and design code. I think it is relevant to some of the arguments we spoke about yesterday in terms of the Westminster system, the ultimate judgement being made by the minister and the minister being judged by the electors on what they have done in relation to this.

As mentioned previously, the Expert Panel on Planning Reform recommended that changes to zone boundaries that conform with the strategic intent as mapped in the relevant regional plan should not require further consultation to be given effect. We submit that the provision as drafted, when read with clause 61 as amended earlier by amendments 12 to 15, provides significant involvement of the commission in the development of regional plans consistent with state planning policies in any areas that remain outside the area in relation to which a joint planning board has been instituted.

The Hon. M.C. PARNELL: I find this to be a most curious sort of provision, and I think it is about the only one, at least that I can remember now, that is in the bill where it sets out a mechanism that says that the minister can do something and then sets out that the minister has to be satisfied of this and this and, normally, that is where it ends. There is just a provision: 'Here are the decision-making criteria. The minister can make a decision.'

But this extra thing down the bottom, saying, 'The Minister has an absolute discretion about whether or not to agree to an amendment under subsection (1),' I call it a suspicion arousing clause, where you are thinking that normally you do not put clauses like that in. You normally set out the power to make a decision, the factors that have to be taken into account and the people who have to be consulted, and that is the end of it.

I am curious about why this needs to be here because the rest of clause 72 states: 'The Minister may initiate or agree to an amendment to the Planning and Design Code,' and then it states 'if', and then there are some criteria that have to be met in paragraph (a). There are further requirements in paragraph (b), and normally that would be the end of it. You do not normally have an extra clause which effectively says, 'If the minister decides to ignore all those things, so be it because he or she has an absolute discretion.'

I find it a most curious clause, so my inclination is to agree with the Liberals and delete it. I cannot see that there is any particular work that it has to do. I do not like provisions which set out a decision-making process and then have a catchall, protective clause at the end which effectively says that, regardless, the minister can do whatever he or she wants, which I think is what this is saying.

I do not know whether the government has advice. There might be legal advice they have that people will try to trip up the minister by bringing judicial review proceedings to say the minister has not followed the proper process and they need this subclause (2) to somehow protect the minister from unwarranted legal claims. I have never heard that point being made. I do not have any evidence of that. If the minister has evidence as to why, in all the provisions of this bill, having an absolute discretion clause is needed, I will hear it but, if I am not satisfied, we will be supporting the Liberal amendment to delete the subclause.

The Hon. J.A. DARLEY: I will be supporting the Liberal Party's amendment.

Amendment carried; clause as amended passed.

Clause 73.

The Hon. D.W. RIDGWAY: I move:

Amendment No 6 [Ridgway–1]—

Page 63, lines 36 to 38—Delete paragraph (c)

I will read paragraph (c) to the members:

(c) in order to provide consistency between the designated instrument and subsection (3) of section 7 after a notice under subsection (5) of that section has taken effect in accordance with that section…

That will mean nothing to anybody. Prior to Christmas, it was probably consequential or it was the effect of our amendments that were supported to remove the urban growth boundary. This is another amendment that relates to not having an urban growth boundary.

It is interesting that the honourable minister talks about the expert panel in relation to certain aspects of this bill but ignores the fact that the expert panel did not advise that we should have an urban growth boundary or, for that matter, any infrastructure levies, which is obviously an issue we will come to probably next sitting week, given the time. This amendment is in relation to the removal of the urban growth boundary, so I urge members to be consistent in their support of our position before Christmas and, to those who supported us, I look forward to their support again.

The Hon. K.J. MAHER: I indicate that the government accepts what the Leader of the Opposition says, that this relates to something that was essentially litigated in this place before the break.

The Hon. D.W. Ridgway: It is almost consequential.

The Hon. K.J. MAHER: We agree that it is, in effect, consequential to decisions that this chamber took prior to the break. We had views about the original clause, but we accept that it is effectively consequential to those earlier.

The Hon. D.G.E. HOOD: Briefly, given that we also accept this is consequential, we will not be accepting an urban growth boundary and therefore we support the amendment.

The Hon. M.C. PARNELL: The Greens did take a slightly different view. We think that the statutory urban growth boundary still has merit. We urge the government to reconsider how it might be configured to deal with some of the objections that have been made. I strongly urge the government to go back to the drawing board on that one. Certainly. the concept is one that the Greens have supported, so I am disappointed to say to the Hon. David Ridgway that we will not be able to support this amendment but look forward to re-agitating the urban growth boundary perhaps on recommittal or between the houses.

The Hon. J.A. DARLEY: I will be supporting this amendment, but I will suggest that there is more to come yet.

The Hon. K.L. VINCENT: Briefly, given Dignity for Disability's position on the urban growth boundary prior to the recess and being consistent with that, we will also oppose this amendment.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Amendment No 3 [Ridgway–4]—

Page 64, after line 23—Insert:

(3a) The Minister must consult with the Commission before making an amendment under this section.

This is about making sure that the commission has a greater role, and so we insert a new subclause (3a), that the minister must consult with the commission before making an amendment under this section. I think it is consistent with our view—and we have a range of amendments that we moved or tabled not that long ago, certainly after Christmas—that we are keen to have the commission take a stronger role in the planning process.

The Hon. K.J. MAHER: I indicate that we are showing the love to the commission and beefing up their role and their involvement, so the government is going to support the Leader of the Opposition's amendment.

Amendment carried; clause as amended passed.

New clause 73A.

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

Amendment No 47 [Parnell–1]—

Page 64, after line 29—Insert:

73A—Publication

The Minister must ensure that an up-to-date copy of each designated instrument is published on the SA planning portal and available for inspection and downloading without charge.

This is a very straightforward clause and I am hoping that there will not be any opposition to it. Basically, it is adding a bit of meat to the bones of the government's planning portal. I think it gives effect to what the government says it wants to do anyway, that is, to make sure that an up-to-date copy of each designated instrument—in other words, every planning document—is published on the SA planning portal and available for inspection and downloading without charge.

That latter component I think is something we might have touched on before, that the portal should be free. We have talked about councils having to pay their share of keeping the portal up to date and that has already been resolved. When it comes to members of the community accessing documents then, to be honest, I am not sure that there are very many government websites where you need to pay to download documents.

There are government websites where you actually need to click on an 'I agree' type of button, agreeing not to misuse the information. A good example of that is the Development Assessment Commission's website. If you want, as I did the other day, to download the plans for the Festival Plaza, or the public realm part of the Festival Plaza, submissions for which closed last week—if you want to find out about the footpath that goes underneath the Premier's window, but let's not go there—if you want to get that information, you have to click on a button on the Development Assessment Commission website saying, 'I agree that I am only accessing this information for the purposes of engaging in the consultation over the appropriate response to this development application,' or words to that effect.

My amendment does not preclude the government attaching some conditions. Mind you, I think that is over the top, making people click that button, because as members of parliament the main reason we click the button and download the information is to give it to journalists. Leaving that to one side, my amendment basically says the documents should all be there—that is the first point—they should be available for inspection, you should be able to download them as well, and it should not cost you anything. I think that that is pretty much the status quo.

There have been some exceptions over time. For example, the Building Code of Australia until about the last year or 18 months cost a motza. Even though it is part of a law of South Australia, you could not just download it for free. They had this commercial arrangement where you had to pay for it. It cost you a fortune to get a copy of relevant bits of the building code. The point I am making is that these designated instruments are part of the law of South Australia, the planning laws, and it is a basic principle that all citizens should have access to it and it should not cost them. I think this is a sensible amendment, and I am hoping the minister sees likewise.

The Hon. K.J. MAHER: I indicate to the leader of the Greens that the government is willing to support this amendment, together with Parnell amendments Nos 27 and 51, as it is intended in any case to publish up-to-date copies of such instruments on the SA Planning portal to download free of charge on the basis that has already been indicated.

The Hon. D.W. RIDGWAY: I also indicate that the opposition will be more than happy to support the Hon. Mark Parnell and the Greens' amendment.

The Hon. K.L. VINCENT: Just for the record, given the ever-growing availability of this newfangled internet thing and its important role in democracy, Dignity for Disability is also happy to support this amendment.

New clause inserted.

Clause 74.

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

Amendment No 48 [Parnell–1]—

Page 64, lines 32 to 39—Delete subclause (1) and substitute:

(1) If the Minister is of the opinion that it is necessary in the interests of the orderly and proper development of an area of the State that—

(a) an amendment to a regional plan should come into operation without delay; or

(b) the Planning and Design Code or a design standard should come into operation without delay in order to counter applications for undesirable development ahead of the outcome of the consideration of the amendment under this Part,

the Minister may, at the same time as, or at any time after, the amendment is released for public consultation under the Community Engagement Charter under this Part, and without the need for any other consultation or process, by notice published in the Gazette, declare that the amendment will come into operation on an interim basis on a day specified in the notice.

I did mention that there was an earlier issue which was on my greatest hits collection, one of the few issues on which I am adamant that we have to get a better outcome for the people of South Australia. Fortunately, this one is one that has passed this chamber before, with crossbench and with Liberal support. It was under a different name last time. The title of this clause now is Early Commencement'. Under the current system it is called 'Interim operation'.

What I will not do is go back through all of the outrageous cases of interim operation that have thwarted the right of people to actually participate in decision-making. I will not mention the Mayfield development, which was approved two weeks before the public consultation finished. Regardless of the merits of the development, it is an outrageous process, and that was using interim operation.

I will just mention another issue. I did approach one of the table staff earlier because I was paying attention to documents tabled and there was a document tabled yesterday in this place, which most people would have not paid any attention to, but it was actually a rezoning. The reason it was tabled in parliament was that it is a rezoning that comes into effect with interim operation. In other words, it is one of those 'shoot first, ask questions later' rezonings. You rezone first and then you have the public consultation.

I am not going to make any observation about the merits or otherwise of this one, but it was Mount Gambier. It is basically an area of residential land which is owned by a timber company, and the timber company I think has run out of space to store their timber. They basically said, 'Well, we own these residential blocks'—it is surrounded by houses, but anyway—'that might be where we should store our timber.' So they have gone to the government and said, 'Can we rezone this area of land from residential to timber storage zone?', or words to that effect—

The Hon. D.W. Ridgway: Did they pay for the cost of rezoning?

The Hon. M.C. PARNELL: The Hon. David Ridgway asks whether they paid the cost. I do not know. You would expect so, if it was for the pure benefit of one company. I make no criticism of whether it is a good idea or a bad idea. It might be an excellent idea. This company is employing a lot of people. Apparently it is one of the bigger companies in the South-East. However, it strikes me as lazy planning, the fact that the government has left it to such a late stage that they have to use emergency rezoning powers, if you like, rather than going through the normal, proper process, and taking their time and doing it properly.

It may well be that there are pressing reasons. Maybe no-one could foresee this problem emerging and there were no temporary approvals that could have been given—I do not know. There might be a back story to it. What strikes me is that the government is continuing to use interim operation, or what we call early commencement, as a way of saying yes to their favoured projects when, as we all know, this provision was designed to stop unsuitable projects.

In fact, I have referred here in the past to the planning circular. Dr Don Hopgood in 1988 basically put this circular out, aimed at councils and developers, saying, 'Please note that these provisions are not designed to fast track your project. They are designed to do things like protect the status quo until after the community consultation has happened, and then the change can come into effect.'

I do not need to go on about it too much more, especially if parties have not changed their position from when the Legislative Council last supported it, but what I asked parliamentary counsel to do was to reprise the amendments that I drafted last time and to incorporate them into the current clause 74. So really this is a matter that the Legislative Council has supported in the past and I am hoping that it will support it again.

The Hon. K.J. MAHER: I rise to indicate that the government will not be supporting these amendments. These three amendments, amendments Nos 48 to 50 [Parnell-1], moved to this clause would constrain the use of what is currently called interim operation. The government opposes this constraint on existing practice. I note that the Hon. Mark Parnell has given some examples of where the current practice, in his view, does not work as well as he would like to see, but it is also worth noting the expert panel's findings in this regard.

For the period 2005 to 2013, interim operation provisions were used as follows: 34 per cent of the time to protect heritage items 14 per cent of the time to protect coastal land and two-thirds of the time for council-initiated amendments. Under current operations, I would hate to see something that would dilute the power to protect heritage items and coastal land. The government will not be supporting these amendments.

I also note that clause 74(4)(b) provides that, if either house of parliament passes a resolution disallowing the amendment after copies of the amendment have been laid before both houses of parliament under section 71, it ceases to operate. So there are very thorough safeguards in place and we oppose restraint on existing practice.

The Hon. M.C. PARNELL: If I can quickly respond to what the minister said. The examples that he cited of where interim operation has been used—

The Hon. K.J. Maher: The expert panel's findings.

The Hon. M.C. PARNELL: Well, the expert panel as well. The expert panel, I think, did the analysis. They worked out where this—

The Hon. K.J. Maher: It's not just me saying it.

The Hon. M.C. PARNELL: No, sorry. The expert panel has identified where interim operation has been used and, I have to say, in most cases it was absolutely appropriate. In fact, that is my whole point: that it should be used to protect the coast and it should be used to protect heritage, while you are having a debate about whether the heritage needs protecting. The heritage example is a good one. If you go through the normal process and you put out a planning and design code saying, 'We are thinking of listing these three properties as heritage,' and then go into consultation, I can tell you what—for the owners of those properties who might not be happy, the bulldozers are out the very next day and they knock them down, and then by the time the planning change has gone through there is actually nothing left to protect.

Interim operation is used to say that we are immediately going to add this to the list, then we will have consultation, and then at least nothing bad will happen in the interim. It is about the status quo and issues of protection rather than fast-tracking the government's favourite developments. I am assuming that the Liberals have not changed their view from last time, so I expect that this will go through.

The Hon. D.G.E. HOOD: I just have a question for the mover. I accept the Hon. Mr Parnell's arguments, but doesn't the government have a point? His amendment, should it pass and be applied in this bill and should it become an act, when it does could it not be used for exactly that reason, to stop heritage protection, for example? We spoke before about the Prospect DPA; the same situation occurred there. They had an interim order, and it came into effect immediately for the very reasons that the Hon. Mr Parnell has outlined. However, should his amendment pass, in exactly that situation could the people who are not supportive of the proposed so-called protections not just bulldoze those houses in the interim? His actual amendment is therefore not achieving his ends, or certainly not in that regard?

The Hon. M.C. PARNELL: It does not work like that. Interim operation works to preserve the status quo. If the status quo is protection then something stays protected: if the status quo is that it is not protected, then it is not. The sort of example that I use is basically if the council, for example—and heritage is probably a bad example because the member and I disagree on it, but I think it is a useful one—has identified that an area is potentially worthy of protection as heritage, if they were simply to go through the normal process, that would have no protection until the change was finally gazetted. In that period of time—which might be six months or might be longer—there would be no protection.

It is a bit like the Heritage Act itself. It has a sort of interim protection order process, and basically just preserves the status quo, the status quo being that the building is still standing. That is the status quo. If it turns out that it does not deserve heritage it will not be put on the list; it will be removed before the list is finally gazetted. As I said, this provision is basically a preventative, protective provision which stops the government abusing it—and that is the word I have used, and I will use it again—abusing it by fast-tracking amendments, in other words, immediately zoning a change to come into effect, immediately allowing applicants to lodge their applications.

That is the other part of this equation. If you lodge a development application, your application is assessed against the planning scheme in existence at the date you lodged it. So if the government changes the planning scheme today and you lodge your development application tomorrow, you are entitled to have your application judged against that scheme. In other words, if you get wind that the government is thinking about heritage listing then you can get the bulldozers in and knock all your heritage down before it can be listed.

What the government does, quite reasonably, is say, 'We are going to add this property to the list, we're going to bring it in on interim operation. We will have the consultation in the community, and if it survives the consultation then at least we have stopped them knocking it down. If it does not survive the consultation they can knock it down.'

The Hon. D.G.E. HOOD: I will be brief. I do not like to challenge the honourable member's knowledge in this area—which is considerable, and I think we all respect it—but that is certainly not my experience, I have to say. To use the Prospect example again, what happened there was that the interim development assessment was brought in immediately throughout the affected heritage zone, as it is so-called, and from that moment on it was in operation.

The Hon. M.C. Parnell interjecting:

The Hon. D.G.E. HOOD: Correct—

The Hon. K.J. Maher: It changed the status quo, though—

The Hon. D.G.E. HOOD: That is right; it changed the status quo. That is the key point. It was not protected previously. Once it came into the so-called interim operation it was protected (not that I think that is the right word, but that is the word we are using in this context). So it did change the status quo. I think the honourable member has misunderstood—but I do not know if 'misunderstood' is the right word—but I think he has.

The Hon. M.C. Parnell: Yes, I think I did.

The Hon. D.G.E. HOOD: Okay, there you go. I am not sure if the honourable member wants to continue with the amendment or not, but perhaps I will let him respond.

The Hon. M.C. PARNELL: I may have misspoken when I referred to the status quo. Certainly the status changes, that is the whole purpose of the amendment to change the status, but what I meant as the status quo is that the building stays—the status quo on the ground is what I meant. I think I possibly said the status changes. No, the status changes but what is protected is the fact that it is still there.

The actual words that are used in here are 'undesirable development'. It sounds very value laden but regardless of whether you like it or not it is a specific term, a legal drafting term. 'Undesirable development' means development that would detract from or negate an object of the amendment. In other words, if the object of the amendment is to protect heritage, then knocking it down would negate from that and, therefore, that is what this interim operation is designed to do, prevent undesirable development.

The flipside of the coin is it must not be used and should not be used to fast-track developments that should go through the normal process. There was no rationale for fast-tracking the Mayfield development. My colleague Tammy Franks and I were chatting before and we are uncertain about whether that development, having been fast-tracked, is even going ahead now. It may well be that there were no buyers or it has fallen in a hole or whatever.

The government's rationale for fast-tracking development—in other words, for changing the zoning immediately, allowing development applications to be lodged immediately—was ostensibly to get more cranes on the skyline immediately. It did not work anyway. All it did was annoy the entire community, who found that they were disrespected in that they were still participating in public meetings and the thing had already been approved which is just nonsensical. When I say that the planning system is brought into disrepute, that is why that is such a classic example.

The Hon. K.J. MAHER: I think it is the case that limiting this provision, that is clause 74, at a statutory level as it is being proposed by the honourable member, could possibly inhibit some of the valid reasons that we have talked about to some degree. My suggestion is that a better approach could be to address the issue of how interim operations interact with the engagement through the charter. I can let the honourable member know that the government will give an undertaking to pursue this issue as we develop the charter and prepare for implementation.

The honourable member might have some comment as to whether he sees clause 74(4)(b) as providing appropriate protection. In the honourable member's view, if there is some evil that needs undoing with an interim operation, either house of parliament can pass a resolution. That is a pretty big protection that is in place. It is more than what we have talked about before; that is, a minister in the Westminster system facing the wrath of the voters if they do something that is wholly unacceptable. This is either house of parliament that can pass a resolution.

The Hon. M.C. PARNELL: I will address that point directly, and the answer is it does not satisfy me. I can always find examples. I said before that interim operation—or early commencement as we now call it—effectively means that the minute the government signs off on it and puts it in the Government Gazette, it comes into operation. That means that the very same day, or the very next day, people can start lodging applications which will be assessed against it.

Yes, there is a provision here. In fact, it reminded me why that document was tabled yesterday, why that Mount Gambier development plan amendment was tabled, because I am presuming there is a similar provision under the current Development Act, which has never been used to my knowledge, but presumably any of us could try to disallow it.

My experience is that the government works closely with the developers and the developers know this is coming. In my experience, they lodge their applications the next day, so there is no time for parliamentary disallowance. I can recall in the ERD Committee there was an interim operation that came in and I asked Mr Greer, I think—and I do not want to get him into trouble if it was not him—but it was certainly a senior official from the planning department to whom I asked the question: has anyone taken advantage of this DPA by lodging development applications?

The answer was yes. I said, 'How many?' I think the answer was about two dozen. It was to do with aquaculture.

I phrased the question differently, 'To put it another way, is there anyone on the planet who could possibly take advantage of this change in zoning who hasn't yet done so?' The response came back, 'No, I think we've got them all in by now.' Within 48 hours, everyone who could take advantage of the interim operation had taken advantage of it. It was an ancient old aquaculture issue. It is not so relevant now. It was down near Port Lincoln.

My point is that the nature of these things is that 'interim operations' means that they are in there with their applications the very next day, and sometimes there are dozens of them in there within a day or so. I should say that it is not retrospective. If parliament throws it out, the law is still as it was in existence when they lodged their applications so it does not matter if we chuck it out. They are entitled to have their application judged against the interim plan. I am glad the minister raised that because it actually makes it worse: it actually gives me no comfort at all that that sort of protection would be afforded.

The Hon. D.G.E. HOOD: I am sorry to labour this point. I appreciate the Hon. Mr Parnell's arguments, and I think he has a strong case if you subscribe to that view. What I am still not clear about is this. In the case of the heritage interim operation—for instance, again going back to the Prospect example—should his amendment pass, could that not work against his very objective in passing this amendment in the case of preserving so-called heritage?

The Hon. K.J. Maher: Or coastal protection.

The Hon. D.G.E. HOOD: Or coastal protection

The Hon. M.C. PARNELL: The answer is no. They usually do it with character preservation zones—they bring the change in under interim operation, so all of a sudden there is a new set of laws around a certain area, and those new rules say, 'It's now heritage. You can't just bulldoze it.'

The Hon. D.G.E. Hood: You can't do anything.

The Hon. M.C. PARNELL: Well, you can't just bulldoze it. Quite rightly, the government then has to go through public consultation and talk to people. As we have seen, the result of that consultation is that the 80-plus properties that were going to be listed were shrunk down to 20. The only harm I can see that might have been done is that there was a short period when there were 60-something properties that did not know whether they were going to be in or out. I think that is a fairly small price to pay, that there is that small level of uncertainty for a small period of time, compared to the evil we are trying to overcome—that is, wholesale destruction of heritage.

The way interim operation works appropriately, I think works well, and I would be loath to get rid of interim operation or early commencement. We have to have it. It is a really important protective measure. I do not want to see it abused. Again, rezoning the city for high-rise developments may well be an excellent outcome, but you do it through the proper process. You do not do it overnight through interim operation so that approvals get granted before the community has had their chance to have a say. That is undemocratic and that is what I call an abuse of these provisions—and that is what I am trying to overcome.

The Hon. D.G.E. HOOD: I have enjoyed the debate. We will not be supporting the amendment.

The Hon. K.J. MAHER: I guess this is possibly the last contribution from the government on this. I understand what the honourable member is saying—the bits he likes and wants to keep (that is, the protection of things like protected heritage areas and protected coastal land) to have interim operations allowed to apply to them. I know he has given examples where he thinks it is not a genuine reason but, if there were genuine reasons where an interim operation should come into effect to allow a development that needed to proceed, it would be very hard to do that.

Part of the objects of this act is to allow better and easier development, and I think it should apply equally to the things that the honourable member is in favour of and likes as well as the things that many other members have spoken about in terms of making sure development happens appropriately and expediently when there is an opportunity.

The Hon. M.C. PARNELL: Again, I think we are wearing the patience of the chamber, but I am saying that this is a tool fit for purpose and it has been abused. It is not just about the developments that the Greens like or do not like: it is about the appropriateness of the tool. The tool was developed decades ago. It has been acknowledged by a previous planning minister that it was for a certain purpose and should not be abused. It has been abused.

The minister earlier put on the record maybe an olive branch saying, 'Could we not vote for this now? Can we have a look at how we can engage with the charter, or can we do something else'? I do not accept that at this stage. I think that the Legislative Council, having debated and passed this before, should pass it again. I certainly will participate in these discussions with the government about whether there is another way to achieve it.

I should say that when we did these a year or two ago it had the support of the planning profession, people who realised that I was trying to get this tool back to its proper use and to try to prevent its abuse.

The Hon. D.W. RIDGWAY: I will make some comments in relation to this. It is interesting listening to the debate. My recollection of the provision is that it was to stop people from profiteering from a rezoning or something where they might hear about it and go and buy the land. So, if something was rezoned it happened very quickly. The Hon. Mark Parnell talked about consultation before it came into full effect.

The issue that really prompted the opposition to support this a couple of years ago flies in the face of exactly what the Hon. Mark Parnell was saying, and that was that these interim measures are meant to preserve the status quo. He clearly did not mention the wind farms DPA, which did not preserve the status quo and allowed a whole bunch of developments to happen for that interim period. That is the reason the opposition is attracted to the Hon. Mark Parnell's amendment.

The government might shake its head, but it was an absolute abuse of the process to allow quite a large number of wind farm development applications to be lodged, none of which as yet has been built. While I am a member of parliament, they probably will not be built. It caused a great deal of angst in the community and quite a lot of concern. It really was an abuse of the process to change the rules—not to put on a handbrake, assess and preserve the status quo but to change them. It was only for a 12-month period. The rules around wind farms did not go quite back to the status quo, but certainly appeal rights and some of the other things were brought back into play.

It is for those reasons that the opposition will support the Hon. Mark Parnell's amendments—because it was an abuse by this current government. I come back to the Hon. John Rau's comment that there will not be another Mount Barker on his watch. He has come up with his version of things that he thinks might stop it. If we do not support the Hon. Mark Parnell's amendments, we can see the same sort of behaviour happening again in the future.

We are certainly very happy to support the amendment, but I hear what the Hon. Mark Parnell said about the government coming up with a better arrangement to deal with that. He is the original mover, and if he said, 'I have had a look at it. I think we've got a better arrangement,' we would be happy to look at it as well. At this point, we are not prepared not to support his amendment because it keeps it on the table and keeps the issue alive.

Our shadow minister, Steven Griffiths, member for Goyder, has probably been at the forefront of the arm wrestle and tension around wind farm developments in an agricultural area, more so than any other member of parliament. He has had a particularly difficult time, wanting development but also making sure that his farming communities have the protections in place that they deserve.

That is why we are very keen not only to support the amendment but also to work with the government and the mover of the amendment. I am sure that Steven Griffiths, who is probably listening in his office, will be happy to work with the government advisers and planning officials to see whether we can come up with a better arrangement, but tonight we will be very happy to support it because we think it is too important an issue not to keep it on the table.

The Hon. J.A. DARLEY: For the record, I will not be supporting the amendment.

Ayes 10

Noes 9

Majority 1

Progress reported; committee to sit again.