Planning, Development and Infrastructure Bill

Committee Stage

In committee (resumed on motion).

Clause 158.

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

Amendment No 65 [Emp–4]—

Page 136, line 18—Delete 'consideration must be given to' and substitute:

the scheme coordinator should seek to act consistently with

Before we move on, I note that the Hon. D. Ridgway raised an example earlier today of a mum and dad home owner buying a house years after it has been built and the liability for payment of a contribution under a basic scheme. I have now been able to receive some updated advice and wish to clarify the advice in response to the honourable Leader of the Opposition's concerns.

In relation to basic infrastructure schemes, it is not the intention of the government that any future landowner be saddled with payment of a charge years after the land is developed. Clause 158, as amended by Amendment No. 64 moved in my name and passed, subclause (1a)(c) expressly provides that:

the charge should be based on a scheme under which a payment or payments under the charge become payable (or commence to become payable) on a specified event or events;

Only the relevant developer is party to the scheme. The subsequent owner—as with the example of the mum and dad—is not and therefore cannot be liable for a charge that is set up under the basic infrastructure scheme provisions. Specific event or events is defined in clause 158(1b) and those events are actions that would be undertaken by a developer when they seek to take advantage of the basic infrastructure scheme, for example, depositing a plan or undertaking approved development.

These actions are not actions that would be taken by a subsequent owner in the example of the mum and dad owner down the track. However, the government recognises that the use of the words 'should be' and 'for example' in relation to the trigger of a payment under a charge under subclause 158(1b) as amended may be made clearer that a payment for a charge under the basic infrastructure scheme only occurs on development being undertaken; that is, when a plan is deposited for division of land or approved development is undertaken.

Over and above the existing checks and balances provided in relation to the basic structure scheme, the government wishes to assure the honourable Leader of the Opposition and industry representatives that we will work together prior to recommittal to ensure that this concern is made as clear as possible.

The Hon. D.W. RIDGWAY: I am pleased that the minister has corrected the record. As you would recall, Mr Chairman, last night I asked some lengthy questions around allotments. I think what the minister said was that there were two versions of the basic scheme—an up-front lump sum deducted from the farmer's property or, possibly, an annual payment. I was concerned that that was inaccurate, and that is why again today I asked those questions prior to lunch.

I am very pleased that the minister has now realised that the advice he gave the chamber was incorrect. I could be a bit cute and say that brings into question all the advice the minister has given the chamber over this entire bill. We had the Hon. Gail Gago, who is not in the chamber at present, as minister prior to Christmas and now we have the Hon. Kyam Maher.

Also, today during question time, Mr Chairman, you referred to my behaviour in the committee stage of this bill as a disgrace. I would like you to consider that and maybe tomorrow, in your role as President during question time, you might like to correct the record because all I was doing was, on behalf of South Australian citizens, trying to find out exactly what the intent of this bill is. We have seen tonight, of course, that I was right and the minister had provided information that was incorrect, and I am pleased he has corrected it.

The Hon. R.I. Lucas: He misled the house.

The Hon. D.W. RIDGWAY: As my colleague the Hon. Rob Lucas mentions, he misled the house last night—

The Hon. R.I. LUCAS: And again this morning.

The Hon. D.W. RIDGWAY: —and again this morning, and I guess he has come in at the earliest possible convenience to correct the record, but only because of several hours of questioning.

I do have to correct something else. The UDIA were somewhat concerned that I had used their name as the UDIA in the debate. We will correct the record to say that it was not the chief executive or president of the UDIA but a senior member of the Urban Development Institute of Australia who actually cleared it with the chief executive and the president that he would come and brief the opposition. They might say it was not them directly, but they did actually know he was doing it and he did it with their blessing.

My question is this, and I will use the example given to me today. If the agreed charge amounts to, say, $5,000 an allotment for a subdivision, can the developer say to the relevant authority, 'I want to pay that over time. I know I won't get the lots created.'? I think it is section 51 that mentions all the charges such as electricity or water. Can a developer say, 'It is $5,000 an allotment. I want to release 30 allotments, which is $150,00. I will give you $10,000 a month for 15 months and at that point I will then be able to get my allotments.' Can a developer do that along the way?

The Hon. K.J. MAHER: I am advised that it is the intention of the scheme, in the example we have given, that no future owner will be liable for payment. As I said, to make it absolutely clear, we work with the industry and the opposition to make sure that between now and when it is recommitted the language makes sure that it is abundantly clear.

The Hon. D.W. RIDGWAY: I understand that, about no future owner—that is, the mum and dad—but what about the developer who says, 'I want to pay my infrastructure charge over time'? I gave the example of 30 allotments that they want to release, they know they are not going to do it for another 12 or 18 months but they start the process. I used the figure in the discussion I had with the representative from the Urban Development Institute of 30 allotments at $150,000—can I pay 10 grand a month for 15 months?

The Hon. K.J. MAHER: I am advised in relation to that question that if it was one specified event, basically the trigger development of 100 allotments all at once, that would be payable in that one lump sum. However, it could be possible—if a developer was, for instance, developing 10 allotments at a time, then another 10 allotments later, then another 10 allotments—it could be done over a period of time based on those triggers for those allotments over that period of time.

The Hon. M.C. PARNELL: I will pursue the same question because my understanding is that the minister pointed us to his amendment No. 64 and he stated (he was paraphrasing) that there could be some clarification involved as to the trigger events. One trigger event is lodging a subdivision plan; another trigger event is actually building the house on the block—in other words, undertaking the development.

The scheme, as I understand it, anticipates that there could be separate charges. You pay your first $10,000 when you subdivide the block and there is another $10,000 payable when you build the house, so the mum and dad could come into it if they are buying a house and land package. The second payment would be added, I would have thought, to what they pay. I am seeing shaking of heads, but I will ask the minister to clarify it.

Secondly, I notice that proposed new subclause (1)(c) talks about the exemptions from the imposition of a charge applying in circumstances prescribed by regulation. My understanding of that was that the regulations could prescribe situations where someone is exempted from paying it all up-front and could in fact be allowed to pay it over time. That is how I would have interpreted it.

The Hon. K.J. MAHER: My advice is that it is the first in time event that triggers the payment. If subsequent events happened after that, it would be the first in time event that would trigger the payment not the separate events for partial payment. That is my advice.

The Hon. M.C. PARNELL: The reason I struggle with that is that proposed new paragraph (c) in amendment No. 64 talks about a payment or payments—plural. That tells me that it is anticipated that a structured payment plan might be part of this deal. That is how I read it, and that suggests to me that, whilst a liability might accrue early on, it could be structured for payment over time.

The Hon. K.J. MAHER: I am advised that that would come into it in the example I gave earlier. If it is a large development that has a series of 10 being developed, then another 10 and another 10, that is what the payments refer to, the plural payments, the possibility of the specified events on different parts of that development occurring.

The Hon. D.W. RIDGWAY: I might clarify it further with the Hon. Mark Parnell, if I may. I will attempt to. My understanding is that the allotments will not be created and therefore available for sale until this charge is paid by the developer. The developer has no allotment to actually sell to the mum and dad to build the house.

I think in section 51 you are obliged to make sure that you have paid the SA Water augmentation fee and SA Power Networks; I think in some cases in Mount Barker it is to the Mount Barker council in relation to sewerage. Until you have paid that, the mechanism to create allotment does not happen, so there is nothing to pass on. That was my understanding from yesterday as to why we were having a charge levied over a period of time, when on my understanding it was never the intention.

In some of the briefings the opposition has received, the government has said that the council (being local government) will collect the levy. I am assuming that is if it is deemed that they are the relevant authority. It may be local government or it may be somebody else. I am just seeking some clarification. We are not relating questions to this clause, but this is the resumption of the discussion, I suspect. If you could just clarify who it will actually be.

My colleague Steven Griffiths, the shadow minister and the member for Goyder, has said that in a lot of the briefings he received it was all about council would collect the levy. That might have been about the general scheme or it may have impacts on the basic scheme, but I am just interested to know. Clearly, if this is a fee on the basic infrastructure that they have paid and the allotment is not created, why would they have council involved at that stage unless council is expected to do the work?

The Hon. K.J. MAHER: I am advised that government amendment No. 92 clarifies this, that the basic scheme charge is payable to the minister and the general scheme charge is payable to the council. That is government amendment No. 92.

The Hon. D.W. RIDGWAY: While we are on this, even though we are not at government amendment No. 92, do councils which are collecting the levy hold the liability for the payment or for the cost of the infrastructure to be paid for by the levy, or do they pass it on? If you want to build some infrastructure, who actually builds it and on whose balance sheet is it? Is it the state government or is it the local council?

The Hon. K.J. MAHER: I am advised that government amendment No. 77, which we will get to, inserts subclause (8) into clause 159:

To avoid doubt, the liabilities of the scheme will accrue under the terms of the scheme (and, if relevant, against a fund established under Subdivision 4 and not against a council that is required to make a contributions under Subdivision 3.

The Hon. D.W. RIDGWAY: That is amendment No. 77?

The Hon. K.J. MAHER: Amendment No. 77 I think directly answers it.

Amendment carried.

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

Amendment No 66 [Emp-4]—

Page 136, line 23—Delete 'excessive' and substitute 'excessively adverse'

This amendment clarifies to delete 'excessive' and substitute 'excessively adverse'.

The Hon. D.W. RIDGWAY: Why is the minister deleting 'excessive' and putting in 'excessively adverse'?

The Hon. K.J. MAHER: I can inform the honourable member that this amendment came about after consultation with industry to make it clear that we are limiting things that are going to be excessively too much, and that was in consultation with industry.

The Hon. M.C. PARNELL: I thank the minister for his answer, but what were they thinking? Looking at the clause as it is currently drafted, it talks about:

…contributions should be limited to recovering the reasonable capital costs of the scheme based only on infrastructure that is not excessive...

We have talked before about not having gold-plated infrastructure, so it is the infrastructure that is not to be excessive; now it is not to be 'excessively adverse'. That makes no sense to me at all, because no infrastructure should be adverse. The only infrastructure we should be doing is infrastructure that is of a benefit.

The Hon. K.J. MAHER: In my opinion, it is about the contribution, not the infrastructure itself.

The Hon. M.C. PARNELL: I am not going to sweat the small stuff over it. I do not think it adds a great deal, but if that is what is there, it is there.

The Hon. D.W. RIDGWAY: It is interesting. The industry does not want an urban growth boundary and wants a few other things in this bill, but the government ignores that, but by the same token it puts in one word in the bill that I think is almost unnecessary. The government has the numbers. The Hon. Mark Parnell is not going to support the opposition, so we will not divide on it; but it just seems crazy.

Amendment carried.

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

Amendment No 67 [Emp-4]—

Page 136, line 25—Delete subparagraph (ii) and substitute:

(ii) employment, investment or economic viability associated with a contribution area;

This amendment strengthens and clarifies the intent of clause 158(2)(b)(ii) consistent with clause 158(1)(b)(iii), which also refers to employment, investment or economic viability.

The Hon. D.W. RIDGWAY: So now it will read that it is not to have an excessively adverse effect on employment, investment or economic viability associated with the contribution area. What is the difference between economic viability of the contribution area?

The Hon. K.J. MAHER: My advice is that it brings it into line with the language that has previously been used.

Amendment carried.

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

Amendment No 68 [Emp–4]—

Page 136, after line 25—Insert:

(ba) the timing of the collection of contributions under the scheme should be connected to the production or delivery of infrastructure to which the contributions relate, such that the scheme should not involve the collection of an excessive amount of contributions before the relevant infrastructure is produced or delivered; and

The Hon. M.C. PARNELL: I might pose a question on this amendment. Again, we do not want to sweat the small stuff here, but the inclusion of this provision suggests that the contributions to be made will be staged. Let's say we are talking about a road that you pay for when part of the road is built and when it is finished. You pay as you go seems to be what it says.

The amendment proposes 'that the scheme should not involve the collection of an excessive amount of contributions before the relevant infrastructure is produced or delivered'. It seems to be quite at odds with what has been said before, which is that we are talking about up-front, one-off payments, which this clause seems to contradict. This clause seems to suggest that the person building the infrastructure is going to put their hand out on a needs basis and collect contributions when they get to the next stage of building the infrastructure.

The Hon. K.J. MAHER: As I am advised, I think the clarification might be that this only relates to the general infrastructure scheme, not the basic one which we were talking about before earlier tonight.

The Hon. D.W. RIDGWAY: Mr Chairman, if I may ask a question, clause 158—Consideration of proposed scheme, appears to apply to both schemes whether it is basic or general; is that correct? That is why we have confusion—we are trying to deal with two different beasts.

The Hon. K.J. MAHER: I am advised that subclauses (1)(a) and (1)(b) and (1)(c) deal with the basic scheme, whereas subclause (2) deals with the general scheme under subdivision 3.

Amendment carried.

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

Amendment No 69 [Emp–4]—

Page 136, line 37—Delete 'contributions' and substitute 'charges imposed under Subdivision 3'

This amendment has been made at the request of industry in order to clarify the intent of clause 158(2)(e).

The Hon. D.W. RIDGWAY: We are not going to oppose it, but I might just ask a question while I am on my feet. With SA Water augmentation charges on allotments, you are often required to pay them and it is a particularly long period of time before you may develop the allotment or whatever. I am just wondering with the basic scheme what obligation there will be on the relevant authority to deliver the infrastructure as soon as possible.

If a developer has paid their $5,000 an allotment for their 30 allotments, and the allotments have been created, what obligation is there on the local government, the state government or the relevant authority to deliver the interchange or whatever it is that is being funded by that contribution?

The Hon. K.J. MAHER: This amendment is about the general scheme. Do you want to ask the question about the basic scheme anyway?

The Hon. D.W. RIDGWAY: This whole clause covers both. It is about the basic scheme. Let's say there are 1,000 allotments in the proposed subdivision but it is done as you mentioned earlier, minister, in 10 or let's say 50 allotments at a time. It is $5,000 an allotment, so it is $250,000 each time the developer releases some allotments, or wants to, but what is the obligation on the relevant authority to deliver the infrastructure that has been funded?

The Hon. K.J. MAHER: The scheme coordinator sets out the timing as part of the scheme.

The Hon. D.W. RIDGWAY: As to the relevant authority, I think you said amendment No. 77, which we will get to shortly, makes sure that the council does not bear the liability, so I assume it will be the state government. There could well be a lengthy liability for the state government. I will use the freeway interchange as an example. It is required for this particular subdivision, it may take 20 years to subdivide it all and have all the fees paid on the basic scheme, yet the first residents will probably require that interchange.

Will it be agreed during the scheme negotiations by the scheme coordinator? It might only be available when the last 20 allotments are. When is the infrastructure likely to be built, and will the state government bear that liability until all the money is paid? Is that indexed as well? I think you said it was indexed with I assume some sort of interest component if it takes 10 years to pay for it.

The Hon. K.J. MAHER: I am advised that in terms of the timing, they are things to be negotiated as part of the scheme with the scheme coordinator. However, as a last resort, which I think is the sort of thing that the honourable members are wanting answers on, the chief executive can step in and take over the scheme to make sure that those things under the scheme are delivered. That is under clause 179 for the honourable member.

The Hon. D.W. RIDGWAY: I want to ask one question about a clause that we have talked about, being the excessively adverse clause, amendment No. 66, which we have now passed. I am inquiring as to whether other agencies like SA Water and other government agencies will be bound by the terms excessively adverse or even excessive. We often hear stories about horrendous amounts of money that SA Water expects people to pay in augmentation fees. Will the scheme coordinator have any role to play in saying, 'Hang on, SA Water, this is a ridiculous amount of money. Go back and sharpen your pencil.'?

The Hon. K.J. MAHER: I am advised that anything that is part of the scheme is subject to that.

The Hon. D.W. RIDGWAY: Subject to this provision?

The Hon. K.J. MAHER: Yes.

The Hon. D.W. RIDGWAY: Will the scheme coordinator be able to say—and let us just pick on SA Water—'That's an excessive amount of money. Go back and redo your calculations.'?

The Hon. K.J. MAHER: Potentially, yes, he is able to negotiate all those sorts of things. To clarify: he needs to negotiate the best deal for the scheme.

The Hon. M.C. PARNELL: Amendment No. 69 relates to the concept of rebates, and amendment No. 70 relates to the concept of exemptions. My understanding is that a rebate is effectively a discount. In other words, you will not have to pay as much as you would normally, and an exemption means you will not have to pay anything. The tests are similar, but not identical.

The test for a rebate is 'appropriate circumstances'; the test for an exemption is 'depending on the circumstances of the case'. I have a couple of questions, but my first question is: do exemptions and rebates apply to both your basic, essential infrastructure, as well as the general infrastructure scheme? In other words, is it possible for it to apply to both?

The Hon. K.J. MAHER: In relation to the first question, the particular provisions you are referring to relate to subdivision 3, which relates to the general scheme.

The Hon. M.C. PARNELL: Yes, but government amendment No. 64, which we have just passed, also has reference to rebates and exemptions. Do they also apply just to the general scheme?

The Hon. K.J. MAHER: Subclauses (1a)(e) and (f) that you are referring to apply to the basic scheme.

The Hon. M.C. PARNELL: I think the answer I have just got is that there are two different locations: you can get exemptions and rebates in the basic scheme, and you can get exemptions and rebates in the general scheme. The next question is: what are the circumstances that the government has in mind whereby someone might get a rebate or an exemption?

The Hon. K.J. MAHER: That will be up to the circumstances and with the scheme coordinator on that case. As it happens, I do not think there is a specific thing that is in mind that is contemplated; that will be up to the scheme coordinator.

The Hon. M.C. PARNELL: Yes, I understand that the detail has not been written, but it seems to me that you could have rebates and exemptions on the basis of the use of land like, for example, you saying: 'Well, they're building a church', or, 'They're building a school; we won't make them pay.' You could have rebates and exemptions on the ability of the person to pay: 'Oh, they're poor; we won't make them pay.' Are both those situations possibly relevant: the use of land, and the means of the responsible person?

The Hon. K.J. MAHER: In the examples you have given, certainly the former one would be something that may be likely. The advice is the second one would be unlikely. Certainly, that first example you gave may well be an area where that is considered.

The Hon. D.W. RIDGWAY: I am interested in exemptions. If you give an exemption—and I am talking about the general scheme, rather than a basic scheme—would it be an open-ended exemption indefinitely, or a set period of time? The reason I ask that is that I could see a scenario where you want 100 per cent agreement—you have 70 per cent agreement, then you go in and offer all of the 30 per cent of people who have not agreed an exemption for a period of time.

If it is open-ended, that is great, but if it is an exemption until they sell their property and then the next person buys it, then suddenly they are saddled with a charge that may well already be levied on the title. I am just interested to know because I think all of us accept that 100 per cent agreement is going to be—unless you have one or two landowners—an extremely difficult task to achieve. I am suspicious that there is a mechanism somewhere in this bill to, in effect, make it all happen with giving maybe the 20 or 30 per cent who do not agree some sort of exemption for a period of time.

The Hon. K.J. MAHER: It is certainly not the intention, and under subclause (3)(a) they can be limited by regulations where that subclause (3) will apply in any circumstances prescribed by regulations.

Amendment carried.

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

Amendment No 70 [Emp–4]—

Page 136, after line 37—Insert:

(f) exemptions from the imposition of charges imposed under Subdivision 3 should be considered depending on the circumstances of the case.

This amendment is consequential and relates to the inclusion of the principle in subclause 158(1a)(f). The exemptions from the imposition of charges should be considered in the circumstances of the individual case.

Amendment carried.

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

Amendment No 71 [Emp–4]—

Page 137, line 5—After 'contribution area' insert 'under Subdivision 3'

I can inform the chamber that this amendment has been made at the request of industry to clarify the intent of subsection 158(2)(e).

Amendment carried.

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

Amendment No 72 [Emp–4]—

Page 137, after line 10—Insert:

(3a) In addition to subsection (2)(f), exemptions from the imposition of a charge imposed under Subdivision 3 will apply in any circumstances prescribed by the regulations.

This revised subclause provides that the regulations may set out circumstances under which an exemption to a charge may be made; e.g. it could be applicable to land use for community services.

Amendment carried.

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

Amendment No 73 [Emp–4]—

Page 137, after line 12—Insert:

(5) The Minister must publish a copy of a report furnished under subsection (4) on the SA planning portal as soon as is reasonably practicable after determining whether or not to proceed with the scheme to which the report relates, subject to any qualifications or redactions that apply under section 53 or under a practice direction published by the Commission for the purposes of this provision.

This amendment is to ensure transparency and accountability. Any report prepared for the consideration of the minister by the scheme coordinator must be published as soon as it is reasonably practicable, subject to any statutory qualifications or redactions, on the SA planning portal.

The Hon. D.W. RIDGWAY: I have a question of the minister. It states:

The minister must publish a copy of a report furnished under subsection (4) on the SA  planning portal as soon as is reasonably practicable after determining whether or not to proceed with the scheme to which the report relates, subject to any qualifications or redactions…

Often these reports are published within so many working days, or two months. When they are parliamentary reports it is so many sitting days. Given that we have been inserting things like 'excessively adverse' and stuff that the Hon. Mark Parnell and I think are a bit over the top, what is 'reasonably practicable'? Is it as soon as the scheme coordinator gets around to it? What if he has had his annual leave and has been to the cricket and the footy? What does it mean?

The Hon. K.J. MAHER: I think it will be determined in the circumstances of the common meaning of 'reasonably practicable'. Certainly this is something that courts have interpreted for a very long period of time and, if necessary, we would be able to do it under this.

Amendment carried; clause as amended passed.

New subdivision 1B.

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

Amendment No 74 [Emp–4]—

Page 137, before line 13—Insert:

Subdivision 1B—Adoption of proposed scheme and related operational matters

New subdivision inserted.

Clause 159.

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

Amendment No 75 [Emp–4]—

Page 137, after line 18—Insert:

(1a) However, the Minister must, before making a variation, exclusion or inclusion under subsection (1)(a) that will involve a significant change to the scheme, refer the scheme (including the proposed variation, exclusion or inclusion) to the scheme coordinator for the scheme coordinator to consider and report to the Minister on the scheme in accordance with section 158 as if it were a proposed scheme under that section.

This amendment puts in place a requirement that the minister must seek the advice of the scheme coordinator before making a variation, exclusion or inclusion to the scheme. This provision has been included at the request of industry. It introduces an additional safeguard to ensure that any variation is sustainable and able to be accommodated within the scope of the scheme.

The Hon. D.W. RIDGWAY: It states that 'the minister must, before making a variation, exclusion or inclusion to the scheme'. I just wonder why it is the minister and not potentially the planning commissioner or the planning commission. We had an appetite from the government and from the opposition to remove the minister from these decisions. I just wonder why the minister is still in this role.

The Hon. K.J. MAHER: I thank the honourable member for his question in relation to this. Certainly in large parts of the bill we have all agreed to giving as much power as possible to the commission. In relation to this, under this subclause the minister is the one who determines to proceed with the scheme, and it is the minister who is the one who determines not to proceed with the scheme, and that is why it is the minister in relation to the variation in the subclause.

The Hon. D.W. RIDGWAY: I am not sure—I know that there subsequent amendments, but I have not read them thoroughly. Is there any requirement on the minister either to report to the parliament or report on the portal about variations to any particular scheme?

The Hon. K.J. MAHER: I am advised that it is in clause 159(2), that if the minister decides to proceed with the scheme it must be published, and subclause (5)(a) provides for it as well.

Amendment carried.

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

Amendment No 76 [Emp–4]—

Page 137, after line 28—Insert:

(5a) The Minister must, before making a variation that will involve a significant change to the scheme—

(a) if the scheme provides for the imposition of a charge under Subdivision 2A, give consideration to whether or not such a charge should be included in the scheme, taking into account the variation and the matters referred to in section 155B(9); and

(b) seek the advice of the Commission; and

(c) take reasonable steps to consult with the council within whose area the scheme is proposed to be undertaken and, if relevant, any council whose area may include the whole or any part of a proposed contribution area; and

(d) take reasonable steps to consult with the owners of any land that would be directly affected by any infrastructure or works to be provided or undertaken under the proposal scheme; and

(e) consult with any other person or body as the Minister thinks fit,

and the Minister must then refer the scheme (as proposed to be varied) to the scheme coordinator.

(5b) The scheme coordinator must, on a referral under subsection (5a), consider and report to the Minister on the scheme in accordance with section 158 as if it were a proposed scheme under that section.

This amendment puts in place the requirement that, should the minister propose to make a significant variation or exclusion or inclusion in a scheme, then the proposal must be subject to the same consultation requirements that would be required for a new application. This amendment again was included at the request of industry and will expressly ensure that all processes associated with the approval of the scheme are transparent and open.

Amendment carried.

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

Amendment No 77 [Emp–4]—

Page 137, after line 33—Insert:

(8) To avoid doubt, the liabilities of a scheme will accrue under the terms of the scheme (and, if relevant, against a fund established under Subdivision 4 and not against a council that is required to make contributions under Subdivision 3).

(9) Once a scheme has been adopted by the Minister, the Chief Executive must ensure that the Commission is kept informed about the operation of the scheme (and any significant changes to the scheme) under an arrangement established by the Chief Executive in consultation with the Commission.

In consultation with industry, this clause has been amended to provide additional checks and balances. New subclause 159(8) puts beyond any doubt that a scheme's liability—for example, for contributions not made—will accrue against its fund rather than the council responsible for collecting the contributions. This provision has been added following consultation with and in response to feedback provided from the Local Government Association.

Clause 159(9) has been put forward at the request of industry and provides a feedback mechanism to the commission on the operation of the scheme. The commission may exercise its powers under clause 22(3) if it believes variations to the scheme are required or other matters should be brought to the attention of the minister. Once the minister has received the commission's advice, he or she could use the powers conferred by clauses 159(4), 159(5) and 159(5a) to vary a scheme to address the commission's concerns or give effect to its advice.

Similarly, clause 157 enables the chief executive, with the concurrence of the commission, to replace or appoint a scheme coordinator. Clause 159(9) provides a mechanism to ensure the commission is fully apprised of all matters relating to the operation of a scheme and, by inference, the performance of a scheme coordinator.

The Hon. D.W. RIDGWAY: The question I would ask is about liabilities that accrue. I think the minister mentioned that the liabilities for the unpaid contributions are held against the fund (I think that was what he was saying). To go back to the 1,000-allotment subdivision broken up into 20 lots of 50, a trigger point would be, say, half of them, so 10 lots of 50 allotments is the trigger, or it is agreed that the new interchange will be built onto the freeway, and the local council or state government (but, more importantly, the local council) is the approved authority to collect the money and do the works.

But then we have a downturn in the economy, much like we are experiencing now, and the intention would have been to release the next 500 allotments, recover that money and have the scheme fully funded. But, you could go through a period of time where land sales cease for unforeseen circumstances, and you have a local council with a liability for an asset that they have built and for which they have no way of paying.

The Hon. K.J. MAHER: My advice in relation to this is that the scheme coordinator is essentially the project manager. The scheme coordinator is not going to be incurring debt and then effectively trying to get it back on credit later on. There are provisions for reviews of such a scheme or for unforeseen circumstances, as we have debated just recently.

The Hon. D.W. RIDGWAY: I am concerned, and I will use the 1,000 allotments example. For fire safety reasons, it is deemed that you need that exit onto the freeway, and it has to be built after 500 allotments because the residents cannot physically get out if there happens to be a catastrophic fire day. So, it is built, and the cost of that bit of infrastructure is apportioned across all of the 1,000 allotments, but the 500 allotment point is the trigger point. It is built for every good reason—for fire safety, for the residents who are in there—but then who holds the liability if it is local government, the market flattens out and we do not sell the other 500 allotments?

The Hon. K.J. MAHER: I am advised that it is the job of the scheme coordinator to look at these things, think them through and, if there are issues that relate to safety, to think through how they will operate in relation to a subdivision that you are talking about. That is the role of the scheme coordinator.

The Hon. D.W. RIDGWAY: I think you miss my point, minister. If a local council builds a piece of infrastructure, and they are expecting revenue over the life of that subdivision, over a time frame that has been agreed to, and then, due to unforeseen circumstances, there is no revenue, who holds the liability? Does the state government step in and say, 'Sorry, council. We will pick up the problem'? I guess my concern is that this bill will eventually pass and it will be in place for another 20 or 30 years. You are probably hoping you will never visit it again, but it will be in for a very long period of time. We need to make sure that everybody understands and we get it right.

The Hon. K.J. MAHER: Clause 155B(7)(f) provides that the minister must seek to facilitate provision of infrastructure in a timely manner. In relation to the particular question from the Leader of the Opposition, I think the council can build infrastructure at any time, that is their call; they can decide to get a loan to build it in advance or they can wait to build it in relation to when money is supplied pursuant to such a scheme.

The Hon. D.W. RIDGWAY: I am sorry to labour this point, but I guess it is the fire safety issue. Whether it is at Blackwood Park, or whatever that subdivision is up behind where I live in the Coromandel Valley area up there, there have been discussions that that is a bit of a fire trap because there is no access onto other roads and we are, of course, mindful that bushfires seem to be more intense and move faster than ever before these days. If you have a subdivision that requires a certain amount of access to be provided at a trigger point of, as I said, 500 allotments but then the market goes flat, I am interested in who holds the liability.

The minister said that the council could build the infrastructure if they chose to or they could wait until they collected all the money, but if part of the agreement is that for fire safety reasons, for exit reasons, you need to have access to the freeway after 500 allotments—say 1,000 or 1,500 people living there—who holds liability if, for whatever reason, the subdivision stalls?

The Hon. K.J. MAHER: The sorts of issues that are being agitated at the moment are parts of the current deed arrangements that currently apply with developments. Certainly, under the new arrangements it would be the scheme coordinator who would decide. In the examples the honourable member has given, it is likely that there would be consultation with, say, the CFS and it would be the scheme coordinator who would then decide, for example, that it may be an absolute priority for safety issues that that should be the very first thing to be taken into account at the very start rather than later on. It would be the scheme coordinator doing this in consultation, in the example you have given, with possibly the CFS. That would be something that the scheme coordinator would take into account.

The Hon. D.W. RIDGWAY: I understand that, minister. So the CFS says, 'You should have that access built in straightaway,' and council builds it. The cost is agreed by the scheme coordinator and it is $5,000 an allotment over the 1,000 allotments, so $5 million; but then council does not get its revenue because the property market goes flat.

My question then is: who holds the liability? Is it, 'Bad luck, council, you have to fund the loan and whack it onto the rest of your ratepayers,' or does the state government step in and say, 'Okay, this is part of the development procedure; we will help you through that process.'? What could happen is that you could have a whole range of ratepayers who are not getting any benefit from that bit of infrastructure, but who are paying for it because the property market has gone flat.

The Hon. K.J. MAHER: I thank the honourable member for his qualification. Under a basic scheme, it is the fund that is liable to fund these things. It is not the council that is liable to fund these things. I understand the question you are asking. If there was something that was that crucial for safety reasons, the scheme coordinator almost certainly would make sure it was funded at the very start rather than at a point down the track where things have fallen over—if it was that critical for very basic human safety.

The Hon. J.A. DARLEY: Forgetting about infrastructure, if a subdivider subdivided land and the market went flat, the normal thing that would happen would be, if rates and taxes were not paid, the land could be sold up under the Crown Rates and Taxes Recovery Act. Would not the same sort of provision apply where a council or the government put up the money and yet the developer could not pay it?

The Hon. K.J. MAHER: The honourable member is correct. Under clause 163D, there is the provision for enforcement of a charge.

The Hon. D.W. RIDGWAY: Sorry to keep labouring this, but I am just intrigued. The fund would be liable. How does the fund borrow money? Who underwrites the fund? Is it state government? Is it council? Because if you do not get all the money up-front and it is predicated on a revenue stream over time, who underwrites the liability of the fund?

The Hon. K.J. MAHER: I think it is quite simple. Under the basic scheme, there is a provision, as we have talked about. It is an up-front charge, but it could be triggered by different events, selling off your 20 or 50 or 100 lots, and it is up to the scheme coordinator, but if you do not have the money under a particular part, you would not build it. The scheme coordinator is responsible for putting the scheme in place. If you do not have the money, you would not build it.

The Hon. D.W. RIDGWAY: Minister, sorry to be delaying it, but the scenario you use where there are 20 allotments at a time but it has been determined that we need to build this infrastructure to service this development of a certain size (we will use the 1,000 allotments) and as the developers are releasing 20 and 30 to the market, they are paying their $5,000 an allotment. If the infrastructure has already been built, who actually carries the liability? In the modern world, somebody has to pay. Banks do not just give you money.

The Hon. K.J. MAHER: It is not envisaged you would have to pay equal amounts each time allotments were sold off. The scheme coordinator would likely say, 'If you don't put up the money'—and it could be triggered by that first event of selling that first amount off. The scheme could easily provide for that first event, which triggers enough to pay for whatever that first infrastructure is. That is part of the scheme; that is the whole idea of having these schemes and the scheme coordinator. It is unlikely to be the case that if you sell them off in lots of 20 that each 20 would incur exactly the same fee as you go along. It could be that the vast majority of the fee is payable on that first one to fund that critical infrastructure, particularly if in consultation it is needed for human safety.

It is not the case it would necessarily be that on each trigger event there would be equal payments made. This would be part of what the scheme coordinator does working in the scheme and in consultation. It might be that basic infrastructure for the whole development could well be payable under the first event that is triggered.

The Hon. J.A. DARLEY: Would this not be similar to a situation we have at the moment with Skye? SA Water are going to provide SA Water to the Skye residents, but they have to sign a guarantee that they will pay so much per annum until it is paid. If they fail to pay, SA Water will recover it, at the very worst, by selling the land.

The Hon. K.J. MAHER: That could be the mechanism under the scheme. It also could be the mechanism that, at the very first trigger event, there could be the payment necessary and if that does not happen, it does not go ahead. The development does not go ahead if it is set down that at the first event you need so much to pay for all this basic infrastructure for the whole development. If at the first event it is not paid, then it does not go ahead. That is a possibility, the scenario the Hon. John Darley put forward, yes.

The Hon. D.W. RIDGWAY: My understanding of the basic scheme is that a scheme coordinator sits down with the developer or developers—there could be multiple developers, as we used in the Mount Barker example—and they agree on all the infrastructure that is required. They work out that it is so much per hectare at that point, which then equates, as the developer cuts their blocks up, into however many—400, 500, 600 or 700 square metres. They get a yield per hectare, so it comes back to an amount per allotment. That is agreed at the beginning.

The issue we are trying to avoid is the Mount Barker one, where there is this argument and arm wrestle over who is paying for what, so it is all agreed beforehand. My understanding is that there is the same charge per hectare or allotment. Although it is a bit awkward with allotments because they might all be different sizes, let's say there is the same charge per hectare right across the whole scheme. What you are saying, minister, is that we might pay a heap up-front and then pay a lot less later on. I am not sure that is what industry is expecting.

I think industry is saying that they expect to have an agreement that gives them certainty that it is $50,000 a hectare or whatever it is so they know exactly what they are up for, not like this issue we had over Mount Barker. I think we need some more clarification.

The Hon. K.J. MAHER: Absolutely. That is very much contemplated under this scheme; if there is that payment up-front and that is not made, then that particular development will not be able to go ahead. If the scheme does not look suitable, there are safeguards in place. The commission or the minister can make sure if there is any concern about the scheme, that it does not provide what it should, there are those safeguards.

The Hon. D.W. RIDGWAY: I will ask one more question. I genuinely do not think that the minister or his advisers are grasping what the issue is. Industry wants certainty and that is why it has gone down this path of saying, 'We want a basic scheme where we can have all these requirements on the table. We agree on a fee and we pay it. Government agrees on their share, so everybody accepts that.' You said five minutes ago that you could maybe have a different rate of charges across different allotments depending on the timing of things. I am not sure that is what industry wants. I do not know whether they are listening to this streaming tonight, but I will ask them to have a look at it tomorrow.

I will use the 1,000 allotments. It is $5 million worth of infrastructure that is agreed, so it is $5,000 an allotment and somebody goes and builds it. You said the fund is liable. You might only have half a million dollars in the fund, but somebody goes and builds the infrastructure because there is an expectation in good faith that the development is going to roll out as everybody expects. Who actually underwrites the fund? Is it local government? Is it state government?

If you are going to do $5 million worth of work as a result of a subdivision, and the developers are not expecting to pay it up-front but expecting to pay it as they release allotments, who carries the liability until all the allotments are sold?

The Hon. K.J. MAHER: Certainly, that certainty is what this aims to provide for. If it is the wish of the developer in an area that it is an up-front payment that is paid and it is one single up-front payment per hectare for a development to occur, then that is what can be negotiated and that is what the scheme can provide if, as you quite rightly point out, that is what industry wants. That can be negotiated and that could be the scheme that is put in place, yes.

The Hon. D.W. RIDGWAY: I would like the minister and his adviser to consider overnight, because I am sure we are not going to finish this this evening—

The Hon. M.C. Parnell: We might.

The Hon. D.W. RIDGWAY: The ever-optimistic Hon. Mark Parnell. Who holds the liability? Who underwrites the fund or the scheme—is it state government or is it council—until that money is paid?

The Hon. K.J. MAHER: I very much hope that this provides an answer to what I think the honourable member is asking. It is not the council that bears liability: it is very clear under new subclause (8) that I think we talked about before:

To avoid doubt, the liabilities of a scheme will accrue under the terms of the scheme (and, if relevant, against a fund established under Subdivision (4) and not against a council that is required to make contributions under Subdivision 3).

If everything goes completely pear-shaped, but it is decided that the public interest is served by whatever has been started being finished, clause 179 allows the CE to step in and complete works and clause 172 allows for a winding-up of the scheme by the CE. At the end of the day, if it is deemed to be in the public good, the state government can have that ability to step in and finish something—if, in some of the examples you have given, it is determined that that is in the public good.

The Hon. D.W. RIDGWAY: Just as clarification, the state government holds the liability for the fund? If you look at subclause (8) it states:

To avoid doubt, the liabilities of a scheme will accrue under the terms of the scheme (and, if relevant, against a fund established under [the scheme] and not against a council…

But I assume council collects the money—the opposition has been advised that council collects it—but it is then paid to the fund and the state government underwrites the fund and holds the liability.

The Hon. K.J. MAHER: I can confirm for the honourable member, in the broadest possible sense, that ultimately at the end of the day, yes, the state government. For the sake of clarification, I talked about a moment ago about clause 172, the winding-up of the scheme. It says:

(1) The Minister may, on the recommendation of, or after consultation with, the scheme coordinator, wind up a scheme under this Division

Amendment carried; clause as amended passed.

Clause 160.

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

Amendment No 78 [Emp–4]—

Page 138, line 2—After 'to the Minister about' insert:

the enforcement of any charge under Subdivision 2A or

This amendment clarifies the scope of paragraph (b) and the role of the scheme coordinator. It has been made at the request of industry to ensure that the scheme coordinator is able to put appropriate information before the minister for their consideration regarding any decision to enforce payment of a charge.

Amendment carried.

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

Amendment No 79 [Emp–4]—

Page 138, after line 10—Insert:

(2) Without limiting subsection (1), the scheme coordinator should seek to ensure that essential infrastructure is procured and delivered in a timely manner and at reasonable cost and, in so doing, apply and act in accordance with the following principles:

(a) the cost of essential infrastructure should be open and transparent;

(b) the design of, and procurement processes for, essential infrastructure should be dynamic, flexible and adaptable to the changes in circumstances, especially changes within a designated growth area or contribution area;

(c) essential infrastructure should be delivered in a way that facilitates and promotes orderly and economic development, economic growth and employment.

(3) In addition, the scheme coordinator should, insofar as is reasonable, seek out and bring to the attention of the Chief Executive any additional or alternative funding sources that could ensure that charges and contributions under any funding arrangement for infrastructure under the relevant scheme as kept as low as possible.

Following discussion with industry, subclauses (2) and (3) have been inserted to put beyond doubt that one of the fundamental tasks of the scheme coordinator is to seek to ensure that essential infrastructure is procured and delivered in a timely manner and at a reasonable cost. This must be achieved in accordance with the principles that the cost of essential infrastructure is to be open and transparent and the design of and procurement for essential infrastructure should be dynamic, flexible and adaptable to changes in circumstances and that essential infrastructure should be delivered in a way that facilitates and provides orderly and economic development, economic growth and employment.

In particular, subclause (3) reinforces that it is the fundamental duty of the scheme coordinator to minimise infrastructure costs by continuing to seek out and bring to the attention of the chief executive additional or alternative sources of funding which could be applied to the infrastructure scheme.

The Hon. M.C. PARNELL: Is this the first time that the word 'dynamic' has appeared in the South Australian statute book?

The Hon. K.J. MAHER: I could not say for sure. A word search might find it, but he has provided some amusement to parliamentary counsel.

The Hon. D.W. RIDGWAY: This is again a relatively simple question, I suspect. I look at amendments to clause 160. If you look at clause 160, which starts on page 137, the title is 'Role of the scheme coordinator in relation to delivery of the scheme'. It starts out at (a) and then on page 138, (b), (c), (d) and (e). The minister's amendment says 'insert (2) and (3) but there is no (1). Where is number (1)?

The Hon. K.J. MAHER: I think this just needs redrafting to make the first one number 1 when you inserted (2) and (3). I am certain that is the case but I will double-check. I understand what you are saying. It is the technical way parliamentary counsel redrafts it when you insert clauses afterwards.

Amendment carried; clause as amended passed.

Clause 161.

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

Amendment No 80 [Emp–4]—

Page 138, after line 18—Insert:

(iia) the imposition of a charge under Subdivision 2A, including by establishing a designated growth area;

The Hon. K.J. MAHER: This subparagraph expands the range of funding arrangements available under subdivision 2 and relates in particular to the imposition of an exemption to a charge on land by regulation or agreement—161(1)(a)(ii) including by establishing a designated growth area as part of a general infrastructure scheme.

The Hon. M.C. PARNELL: I have questions in relation to the whole of clause 161, which is quite a lengthy clause. It has the concept of parliamentary scrutiny built into it and it appears to be almost identical to the earlier clauses that relate to how the Environment, Resources and Development Committee deals with other planning documents. Ultimately, in a nutshell, these infrastructure schemes have to be sent to the environment committee. The environment committee can reject them, accept them or recommend changes. There are various time limits for doing that.

There is also a provision which says that if the minister has had a chat to the ERD Committee early on, then the ERD Committee can effectively give up the right to veto the scheme later on—so that does parallel the parliamentary scrutiny provisions we have seen earlier. However, there is one interesting aspect—and I did not raise it earlier but I will raise it now: is there any expectation that the ERD Committee might operate with a level of transparency that is consistent with other aspects of this legislation? I say that as a person who has been on that committee for 10 years. The agendas are never published, the minutes are never published, and the resolutions of the committee are never published. In fact, the only—

The Hon. R.I. Lucas: Don't you have an annual report?

The Hon. M.C. PARNELL: Yes, there is an annual report, but it does not set out all of the resolutions that were made.

The Hon. R.I. Lucas: But you could.

The Hon. M.C. PARNELL: Maybe we could. It is perhaps beyond this exercise because we are talking about the Parliamentary Committees Act and changes that might be made, but it seems to me that in the spirit of transparency that is supposedly in this bill, with the online portal, there might be some scope for increasing the accountability of the parliament's scrutiny of these documents as well. I just ask the minister if that is something that he could take on board.

The Hon. K.J. MAHER: As the honourable member pointed out, this bill does not propose any changes to the way a particular parliamentary committee operates. That is something for another matter and another time to consider, but I am happy to take the points that have been raised back to the minister responsible for this bill and let him know the views that have been expressed.

Amendment carried.

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

Amendment No 81 [Emp–4]—

Page 138, line 22—After 'under' insert:

Subdivision 2A or

This is a consequential amendment relating to government amendment No. 31, which inserted subdivision 2A—Charges on land.

Amendment carried.

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

Amendment No 82 [Emp–4]—

Page 138, after line 30—Insert:

(aa) a scheme that provides for the imposition of a charge under Subdivision 2A—

(i) may provide for the indexing of the charge under an index, or at a rate, determined or approved by the ESCOSA, or by some other prescribed person or body; and

(ii) must specify arrangements for the periodic review of the charge under the relevant scheme and, as part of such a review, may provide for any matter to be considered or determined by ESCOSA, or by some other prescribed person or body; and

Clause 161(2)(aa) provides for infrastructure scheme charges to be indexed and periodically reviewed by an independent entity such as ESCOSA or other body of persons prescribed in regulations. The requirement that any person or body other than ESCOSA be prescribed by regulations which are disallowable provides an initial point of scrutiny over the process of imposing a charge. This amendment has been inserted with consultation and at the suggestion of industry.

The Hon. D.W. RIDGWAY: I have a quick question. Which scheme does this relate to: the basic scheme or the general scheme?

The Hon. K.J. MAHER: My advice is that this new paragraph (aa) is about the basic scheme.

The Hon. D.W. RIDGWAY: Just for clarification again, if it is agreed that we are going to build $5 million worth of infrastructure from our 1,000 allotments at $5,000 an allotment and it is built, why should the charges on the allotments, if the capital cost is agreed at $5 million, be indexed over time if we have already agreed on the price and paid the price?

The Hon. K.J. MAHER: An example might be in relation to charges being periodically reviewed. The prices still might dramatically increase or go down and might substantially affect infrastructure, so it allows for that review.

The Hon. D.W. RIDGWAY: If we go back to the discussion—I think it was last night—when we talked about the life of the infrastructure, I wonder whether that was again about maintenance.

The Hon. K.J. MAHER: General scheme.

The Hon. D.W. RIDGWAY: That was the general scheme, but is it just the basic scheme or does it relate to any—

The Hon. K.J. MAHER: Just the basic scheme.

The Hon. D.W. RIDGWAY: So, it is just the basic scheme. Again, I could understand if the works were agreed and they were not going to be built for a period of time, and let us say the $5 million cost went to $7 million or $8 million for the imaginary piece of infrastructure that this development needs. I could imagine over time that you might have some increase, but if it has already been built and the construction is finished why would you be paying more later on when it is already paid for and the developers have agreed on a price?

The Hon. K.J. MAHER: Yes, I think the answer to that is that this is the basic scheme. It is payable upon a trigger, so it is payable when that trigger occurs.

The Hon. D.W. RIDGWAY: Is agreement reached by the developers? If we use the Mount Barker example: a group of developers all own different parts of land, everybody agrees on the scheme, they sign up to it and there is an agreed price. Surely if you needed to allow for inflation—and I am not sure that you would—would you not factor that into the scheme and get that agreed up front? I just cannot work out why you would have increasing prices or contributions, the indexing of the charge under an index or at a rate determined or approved by ESCOSA, without getting an agreement up front.

The Hon. K.J. MAHER: There is a review mechanism built into the scheme; for example, if there was a massive crash in the price of steel, you would sensibly want that to be reviewed to take that into account. We talked about making sure stuff is at a reasonable charge and not gold-plated. You want to make sure those unforeseen circumstances can be taken into account.

The Hon. D.W. RIDGWAY: For a crash in the price of steel, you would not have an indexed charge; you would have an indexed rebate because that infrastructure would cost less and you would give money back to the scheme. I am not quite sure why—and the Hon. Mark Parnell and I were having a little discussion off air—you would not just factor in a level of indexation at the original agreement, and then ESCOSA is not required to make a determination if everybody agrees, or is it that if the government makes an unrealistic increase in the charge the scheme has ESCOSA as the umpire to say, 'This isn't fair'?

The Hon. K.J. MAHER: In the example, absolutely you could take that and factor it into the scheme that is being made. Industry asked for this so that there is an independent umpire in the process.

The CHAIR: Satisfied?

The Hon. D.W. RIDGWAY: No, I am not, but I am sure I will get industry to comment on that overnight.

Amendment carried.

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

Amendment No 83 [Emp–4]—

Page 138, line 35—Delete 'specified' and substitute 'prescribed'

This amendment has been made in response to concerns raised by industry. The requirement that any person or body other than ESCOSA must be prescribed by disallowable regulation provides for an initial point from which the parliament can scrutinise the process of imposing a charge.

The Hon. D.W. RIDGWAY: Is that so that we can disallow ESCOSA?

The Hon. K.J. Maher: Other than ESCOSA; a body other than ESCOSA, that can be disallowed.

The Hon. D.W. RIDGWAY: Other than ESCOSA. Okay, fine; I was not listening. My apologies.

Amendment carried.

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

Amendment No 84 [Emp–4]—

Page 138, line 40—After 'paragraph' insert '(aa) or'

This is a consequential amendment relating to amendment No. 82.

Amendment carried.

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

Amendment No 85 [Emp–4]—

Page 139, lines 22 to 28—Delete paragraphs (a) and (b) and substitute:

(a) the Minister has made a recommendation for the purposes of this subsection to the Governor that the funding arrangement be approved; and

(b) the funding arrangement has been approved by all of the persons who, at the time that the Minister is submitting the funding arrangement for approval of the Governor under subsection (3), own land within the relevant contribution area or areas, other than—

(i) community land under the Local Government Act 1999; or

(ii) a public road under the Local Government Act 1999; or

(iii) dedicated land under the Crown Land Management Act 2009; or

(iv) land held by, or under the care, control or management of, the Urban Renewal Authority under the Urban Renewal Act 1995; or

(v) other land held for a public purpose excluded from the ambit of this definition by the regulations.

These amendments have resulted from discussions with industry and address the concern that the cost of providing civic infrastructure could be shifted onto the developer. This will only enable the minister to recommend to the Governor that a funding arrangement for a general infrastructure scheme, which involves the collection of contributions from landowners, be approved if all of the landowners agree to the scheme. The figure of 100 per cent, being the prescribed percentage of landowners who must agree as a prerequisite for the general infrastructure scheme to proceed, has been determined following consultation with industry.

The Hon. D.W. RIDGWAY: Could the minister repeat his opening remarks in relation to this clause? I think he said it was so that the contribution would be limited to a particular bit of infrastructure.

The Hon. K.J. MAHER: Which part?

The Hon. D.W. RIDGWAY: Can you repeat your opening remarks to this particular clause that you are moving an amendment on?

The Hon. K.J. MAHER: These amendments have resulted from discussions with industry and address its concerns that the cost of providing civic infrastructure could be shifted onto the developer. This will only enable the minister to recommend to the Governor that a funding arrangement for a general infrastructure scheme which involves the collection of all contributions from landowners be approved if all of the landowners agree to the scheme.

The Hon. D.W. RIDGWAY: The question I have is about civic infrastructure and I assume that is—well, I am not quite sure what you mean by that but my interpretation is streetscape, parks and stuff, but last night you said that was part of the general scheme that could be used for it so I just want some clarification.

The Hon. K.J. MAHER: I do not follow you.

The Hon. D.W. RIDGWAY: Did you not say that these amendments are to make sure that the burden of provision of civic infrastructure is not put onto to the developers?

The Hon. K.J. MAHER: Cost shifting.

The Hon. D.W. RIDGWAY: Cost shifting, but last night in the debate, minister, you were saying that whatever the scheme agrees—it might be a streetscape, it might be a park, it might some civic infrastructure—now you are saying it cannot be put onto the developers. I am confused because we have two different messages.

The Hon. K.J. MAHER: I can clarify that. When using that term, this industry had some concerns that infrastructure might include hospitals, schools, fire stations and we just want to make it clear that that is not the case.

The Hon. D.W. RIDGWAY: I was just going to say, unless it is agreed.

The Hon. K.J. MAHER: Yes, in the general scheme by 100 per cent agreement.

The Hon. D.W. RIDGWAY: By 100 per cent agreement.

The Hon. M.C. PARNELL: I do not want to delay the council but my understanding of the main purpose of this amendment was that it deletes the concept of a prescribed percentage of owners having to agree, which is then defined as 75 per cent, and replaces it with the new concept of 100 per cent, so I think the main purpose of this amendment is to introduce the 100 per cent concept.

The Hon. D.W. RIDGWAY: I am just concerned about the minister's—

The Hon. M.C. PARNELL: No, we have had a change of language which I can understand might have been confusing but—

The Hon. K.J. MAHER: I am just clarifying what that language meant.

The Hon. M.C. PARNELL: So, in terms of all of the angst that the development industry has been writing to us about over the last several months, the one issue that it seems that they wanted above all others was 100 per cent agreement to these infrastructure schemes, and this is the clause that delivers it, so that is my understanding of this clause. If the minister can—

The Hon. K.J. MAHER: Yes.

The Hon. M.C. PARNELL: He agrees—great.

Amendment carried.

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

Amendment No 86 [Emp–4]—

Page 139, lines 30 to 43—Delete paragraph (a) and substitute:

(a) the Minister must not make a recommendation under subsection (6)(a) unless or until—

(i) the Commission has taken reasonable steps to consult with—

(A) an entity or entities that, in the opinion of the Minister represent the interests of persons who are directly involved in providing infrastructure or developing land that may be subject to a scheme of the relevant kind under this Division; and

(B) if the funding arrangement is specifically relevant to a particular council or councils—that council or those councils; and

(C) the LGA; and

(D) any other person or body specified by the Minister; and

(ii) the Commission has furnished a report to the Minister—

(A) setting out the outcome of the consultation required under subparagraph (i); and

(B) recommending that the Minister make the recommendation under subsection (6)(a).

These amendments have resulted from discussion with industry. These provisions require the minister to receive a report in support from the state planning commission before she or he may proceed to recommend to the Governor a funding arrangement for a general infrastructure scheme which involves the collection of contributions from landowners.

The report must set out the results of the consultation undertaken by the commission in relation to this matter. This provision also sets out the personal bodies to be consulted, including infrastructure providers, land developers or their representatives, the LGA, the relevant council or councils and any other person or body that the minister specifies.

Amendment carried.

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

Amendment No 87 [Emp–4]—

Page 140, after line 3—Insert:

(7a) The Commission may only make a recommendation to the Minister under subsection (7)(a)(ii)(B) if the Commission is satisfied, having regard to any consultation on the scheme undertaken by the scheme coordinator, that the scheme provides for contributions under Subdivision 3, and rebates and other adjustments in relation to the contributions, in a manner that—

(a) is fair and equitable; and

(b) would not unreasonably disadvantage persons who own small areas of land within the relevant contribution area or areas; and

(c) is reasonable taking into account the matters referred to in section 156(5) and the principles referred to in section 158(2).

These provisions set out the matters the commission must take into account when consulting on a funding arrangement for a general infrastructure scheme which involves the collection or contributions from landowners. This provision is designed to ensure the contributions are fair and equitable and would unnecessarily disadvantage small landowners.

It also requires that other sources of funding have been considered and that contributions limited to recovering reasonable capital will not adversely impact on housing, living affordability, employment, investment or economic viability of the contribution area. In addition, the infrastructure must provide a direct benefit and not be gold plated, as we have talked about.

The Hon. M.C. PARNELL: I have a question on the words that are used. It talks about schemes that would not unreasonably disadvantage persons who own small areas of land within the relevant contribution area. When working out the contribution that people are going to be making, you could say every owner pays X amount, whether they own a big block or a small block, or you could do it on a square metre basis that you pay a certain amount per square metre. What does the government have in mind in dealing with the contributions that would be made by individual householders, for example, who might be caught within the contribution area?

The Hon. K.J. MAHER: It might be very small. A landowner might pay a commensurately small amount, but this is a general scheme so it would need 100 per cent agreement on the conditions.

The Hon. D.W. RIDGWAY: But you would have to be a bit clearer than that, minister. If you have varying sizes of properties, if it is a change in value, and we have often talked about value capture and uplift of the property, surely there has to be a formula to deal with, say, Mrs Ridgway in a little small house or the Hon. Mark Parnell in his great mansion with no significant trees in the backyard, but surely there has to be a sliding scale. Personally you might get the same benefit because there is a bit of infrastructure provided at your front door but surely there has to be a mechanism where the landowners pay commensurate to the size of their landholding?

The Hon. K.J. MAHER: This is about the commission making a recommendation to the minister that these things are taken into account. In terms of negotiating the scheme, the things that the Leader of the Opposition has outlined, I imagine absolutely would be taken into account when the scheme is not being negotiated, but this is in relation to the commission making recommendations to the minister who needs to take into account these things.

The Hon. D.W. RIDGWAY: I assume, on a point of clarification, that if you do not like it and do not agree; therefore the scheme does not go ahead.

The Hon. R.I. LUCAS: Could I clarify in relation to this 100 per cent agreement, the issue of strata title, for example? Is it the individual landowner within a strata title arrangement or is it the formal entity of the strata title that might outvote by majority the individuals? When the government says 100 per cent have to buy in, if a significant minority within a strata title arrangement were vehemently opposed but they got outvoted, what does the legislation provide?

The Hon. K.J. MAHER: I thank the honourable member for his question. My advice is that it would depend on how those body corporates' and individuals' strata titles operated and their own rules.

The Hon. R.I. LUCAS: Being the non-lawyer in this debate, the Hon. Mr Parnell gave me the value of his advice, and he was saying all persons who own land. How does the minister reconcile the response he has just given with what the Hon. Mr Parnell has just indicated in terms of, I would assume, an individual who owns land, albeit that it might be part of a body corporate. I guess that is where the legal argument comes into it.

The Hon. M.C. PARNELL: What I was referring to was in amendment No. 85, which we have passed, where it reads:

(b) the funding arrangement has been approved by all of the persons…who own land within the relevant contribution area…

My interpretation of that would be that if you own a flat on level 4 of a block, technically I think you own land. If a stratum of a building is part of the definition of 'land', the nature of 'strata' is that a large number of people can effectively own the same column or different strata of the column of land. I would have thought that every owner of every unit would have to agree.

The Hon. K.J. MAHER: I thank the honourable member for his question. It is a very technical question, and I am happy to take that on notice and bring back a response to exactly the meaning of that. I do not want to give an answer that is not as correct as my advice is at the time, so I will take that on notice and bring back a response for the honourable member.

The Hon. J.A. DARLEY: In my experience—and I have owned a few strata titles—the strata corporation owns nothing; it is the individual owners of the titles.

Amendment carried.

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

Amendment No 88 [Emp–4]—

Page 141, lines 22 and 23—Delete the definition of prescribed percentage

It is consequential; it becomes redundant.

Amendment carried; clause as amended passed.

Clauses 162 and 163 passed.

New Clauses 163A, 163B, 163C and 163D.

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

Amendment No 89 [Emp–4]—

Page 141, after line 30—Insert:

Subdivision 2A—Charges on land

163A—Application of Subdivision

This Subdivision applies with respect to charges for the purposes of a scheme initiated under Subdivision A2.

163B—Creation of charge

(1) The Minister may impose a charge under this Subdivision over land within a designated growth area.

(2) The Minister may impose a charge over land with or without the agreement of the owner of the land.

(3) For the purpose of the imposition of a charge, the Minister may deliver to the Registrar-General a notice, in a form determined by the Registrar-General—

(a) setting out or incorporating the terms of the charge; and

(b) setting out the real property over which it exists; and

(c) requesting the Registrar-General to note the charge against the relevant instrument of title or, in the case of land not under the provisions of the Real Property Act 1886, against the land.

(4) The Registrar-General must, on receipt of a notice under subsection (3), in relation to the real property referred to in the notice, enter an appropriate notation in accordance with the notice.

(5) When an entry is made under subsection (4), a charge over the real property is created.

(6) The terms and conditions of the charge may be varied—

(a) by the Minister after consultation with the owner of the land to which the charge relates (and with or without the agreement of the owner of the land); or

(b) on account of a periodic review under section 161(2)(aa); or

(c) in circumstances prescribed by the regulations.

(7) A variation under subsection (6) will be effected in a manner determined by the Minister after consultation with the Registrar-General.

(8) The Minister must, when payments under a charge have been made and paid in full, by further notice to the Registrar-General under this section, cancel the charge.

163C—Ranking of charge

(1) While a charge exists over real property, the Registrar-General must not register an instrument affecting the property unless—

(a) the instrument was executed before the charge was created or relates to an instrument registered before the charge was created; or

(b) the instrument is an instrument of a prescribed class; or

(c) the Minister consents to the registration in writing; or

(d) the instrument is expressed to be subject to the charge; or

(e) the instrument is a duly stamped conveyance that relates to the transfer or sale of the real property under section 163D.

(2) An instrument registered under subsection (1)(a), (b), or (c) has effect, in relation to the charge, as if it had been registered before the charge was created.

(3) If an instrument is registered under subsection (1)(e), the charge will be taken to be cancelled and the Registrar-General must make the appropriate entries to give effect to the cancellation.

163D—Enforcement of charge

(1) If a person fails to comply with the terms and conditions of a charge, the charge may be enforced as follows:

(a) the Minister must, by notice in the Gazette, inform the person of the breach and give the person at least 1 month to remedy the breach; and

(b) if the person does not remedy the breach within the time allowed in a notice under paragraph (a), the Minister may proceed to have the land to which the charge relates sold.

(2) The sale will be by public auction (and the Minister may set a reserve price for the purposes of the sale).

(3) If, before the date of such an auction, the outstanding amount of the charge and the costs incurred by the Minister in proceeding under this section are paid to the Minister, the Minister must call off the auction.

(4) The requirement to sell at auction does not apply in any circumstances prescribed by the regulations.

(5) If—

(a) an auction fails; or

(b) an auction is not required under subsection (4),

the Minister may sell the land by private contract for the best price that the Minister may reasonably obtain.

(6) Any money required by the Minister in respect of the sale of land under this section will be applied as follows:

(a) firstly—in paying the costs of the sale and any other costs of a prescribed kind;

(b) secondly—in discharging any liabilities secured by instrument registered before the charge was created, or that is taken to have such effect by virtue of section 163C;

(c) thirdly—in discharging the amount or amounts secured by the charge;

(d) fourthly—in discharging any other liabilities secured by registered instruments;

(e) fifthly—in discharging any other liabilities that exist in relation to the land of which the Minister has notice;

(f) sixthly—in payment to the owner of the land.

(7) The title obtained under the sale of the land will be free of—

(a) any charge under this Subdivision; and

(b) all other liabilities discharged under subsection (6); and

(c) any other liability that may exist on account of any mortgage, charge or encumbrance.

(8) If land is sold, an instrument of transfer or conveyance in pursuance of the sale executed by the Minister will, on registration or enrolment, operate to vest title to the land in the person named in the transfer or conveyance.

(9) If it is not reasonably practicable to obtain the duplicate certificate of title to land that is sold in pursuance of this section (or other relevant instrument), the Registrar-General may register a transfer or conveyance despite the non-production of the duplicate (or instrument), but in that event will cancel the existing certificate of title for the land and issue a new certificate in the name of the transferee.

This clause inserts a new subdivision which applies to charges imposed on a basic or general infrastructure scheme instituted under subdivision A2.

The Hon. D.W. RIDGWAY: I notice subclause (2) states:

(2) The Minister may impose a charge over land with or without the agreement of the owner of the land.

The Hon. K.J. MAHER: That is in the next one, 163B, amendment No. 89.

The Hon. D.W. RIDGWAY: Yes, but we are dealing with amendment No. 89, aren't we? It includes all these new sections. You moved amendment No. 89, and it is a new subdivision 2A—it is several pages. Proposed new clause 163B(2) states:

(2) The Minister may impose a charge over land with or without the agreement of the owner of the land.

That is mentioned again at subclause (6)(a):

(a) …the Minister after consultation with the owner of the land to which the charge relates (and with or without the agreement of the owner of the land);

I am just intrigued. You have talked about 100 per cent agreement, and now you are saying that we can do it whether—

The Hon. K.J. MAHER: This is back to the basic scheme.

The Hon. D.W. RIDGWAY: We are going back to the basic scheme now?

The Hon. K.J. MAHER: Yes.

The Hon. D.W. RIDGWAY: I will ask about the basic scheme.

The Hon. K.J. MAHER: It is under the basic scheme. Under subdivision A2, which is the basic scheme. This is just the basic scheme.

The Hon. D.W. RIDGWAY: Effectively, in the basic scheme, if you have a landowner—and I just want some clarification. We have been told that if a farmer owns the land and chooses not to ever sell his land he can still farm and he is not paying any charges. But if he chooses to sell it—

The Hon. K.J. MAHER: The designated land.

The Hon. D.W. RIDGWAY: Inside the designated area, yes, you could have a farming property inside the designated area, I assume. I am just wondering how the minister can impose a charge on somewhere that does not ever agree with the charge. It does not make sense.

The Hon. K.J. MAHER: The trigger events set out in clause 158(1b) are the depositing of a plan for a division of land or undertaking an approved development. In the example you have given, it has to be one of those two things that are effectively the trigger event. So if a farmer wanted to continue farming the land, that event would not be a trigger and there would not be the charge.

The Hon. D.W. RIDGWAY: My question is: what are the circumstances in which a minister can impose a charge over land without the agreement of the landowner? If it is a basic scheme, my understanding is that everybody negotiates and agrees with the scheme coordinator to the basic scheme and they all agree to a charge. We have been told that if a farmer has a property and does not wish to subdivide or sell, he or she can just keep farming and no charge will be imposed. I am just interested in how the minister can impose a charge over land without the agreement of the owner of the land.

The Hon. K.J. MAHER: This is to avoid that sort of Swiss cheese effect with each tiny part having different provisions apply. There would be a charge but that charge is not payable until one of those two trigger events occurs. So in the case of a farmer continuing to farm his land, even if it is rezoned, for example, unless one of those two trigger events occurs, that is not payable.

It is not the case that under this scheme someone will have to pay without wanting to pay. It is only if one of those two trigger events occur, that is if subdivision or development commences. If you just keep farming the land, you do not have a payment that you have to make. However, if you want to take advantage of the uplift of the value in that area and you want to subdivide or commence development, then yes, it does become payable. But in the example you have given, a farmer who wants to continue to farm is not going to have to pay this charge.

The Hon. D.W. RIDGWAY: I understand that, but why would you have a clause that says that a minister may impose a charge over the land without the agreement of the landowner—with or without? Either they agree to the subdivision or they just keep farming. Why would you impose a charge without agreement? I thought this was all about getting agreement.

The Hon. K.J. MAHER: This is one of the fundamental notions of this basic scheme: getting rid of that Swiss cheese sort of approach, where you might have someone who—in your example, the farmer—does not want to be part of a basic scheme. Everyone else around them is contributing because there has been a trigger event on their land—a subdivision or development.

They are contributing to the basic scheme for that infrastructure and then at some point they find, 'Oh actually, I would like to get a free right of benefit off everyone else having paid and do one of these things and subdivide or commence development there.' If you do that then you are liable for the charge that is over the land, but if you do not and you want to keep farming you are not liable for it. That is one of the fundamental purposes created by this basic scheme to make sure that all those who get a benefit are contributing.

The Hon. D.W. RIDGWAY: Surely, minister, you would just not allow for the subdivision to take place. You would not grant the allotment to the developer if they had not participated in the scheme. The government holds all the cards. You cannot create an allotment and develop it without section 51 being excised.

The Hon. K.J. MAHER: That is right, they do not make the payment. You would not grant the approval for those things to happen, you are quite right.

The Hon. M.C. PARNELL: So that I understand the Hon. David Ridgway's question (he will defend himself if I have it wrong), if we have the farmer whose land has been rezoned from farming to housing, they are the one person in the middle of this great expanse who is determined to keep growing broccoli, they have no intention of subdividing, the question would be: if they have a single certificate of title, for example, for 100 hectares or whatever, will they have anything registered on their title, or will something only be registered on the title when they lodge a subdivision application, and then they are brought into the scheme so they are not freeloading, as the minister said? The question would be: could a farmer, without his or her agreement, have something on their certificate of title that notes that some future action might trigger a liability to pay money?

The Hon. K.J. MAHER: My advice is that in the example you have given the charge would be registered against the certificate of title. That means, in the example we talked about earlier, that it is known about on that piece of land for a subsequent event that is one of those triggers.

The Hon. M.C. PARNELL: Let's say that the farmer decides to sell her or his land to another farmer—

The Hon. D.W. Ridgway: That's not a change of land use.

The Hon. M.C. PARNELL: No, it is not a change of use.

Members interjecting:

The Hon. M.C. PARNELL: No, that is right, but it is on the title. My vague recollection from doing conveyancing back in the early 1980s is that, if you are a purchaser, you want to make sure that everything that is on the title, all the encumbrances, get taken off. Will there be any fee or charge that a subsequent purchaser might have to pay, or will this notation on the title just remain there with the new owner noted? Is there likely to be any cost? There is no triggerable event—they are not going to subdivide, they are going to keep growing broccoli—so will the subsequent owner have to pay anything as a consequence of having this notation on the title?

The Hon. K.J. Maher: You are not asking can they get it off, you are just asking has it changed the title?

The Hon. M.C. PARNELL: Yes. It will not be taken off, because they are potentially liable in the future to have to pay something.

The Hon. K.J. MAHER: My advice is that it is like any encumbrance—a right of way or anything else on the land—you do not pay extra to have that transferred as part of a conveyance of land.

The Hon. D.W. RIDGWAY: It is my understanding, from discussions with the expert who represented the UDIA, that there are no encumbrances on the property of a farmer who continues to farm. It is only at the point that there is a change of land use, to subdivide it, that they are liable to any charge or any payment. Of course there is a scheme, they are in the designated area, so with that change of land use I think everybody accepts they would be required to pay their share per allotment. My understanding, from what the expert has told me, is that there is no encumbrance on that farmer's property, other than that there may be an option with the developer to sell and some other arrangements with the developer. However, as far as the scheme, my understanding from what the UDIA experts have told me, is that there are no encumbrances on that land.

I am intrigued as to why you would then be able to attach an encumbrance to somebody's land who does not wish to change his or her land use and just wants to keep doing what they are doing. Regardless of the Swiss cheese analogy, the UDIA has told us that there will be no trigger of payment until the land use is changed.

The Hon. K.J. MAHER: There is no payment or charge to be made until that trigger event happens. Certainly, the effect is that, should one of those triggers happen, that will be payable, and that is recognised on the title, but that is all it is. If you want to keep using the land as you do, it merely sits on the title to denote that, in the future, if there is one of those triggers, then these charges do become payable.

The Hon. D.W. RIDGWAY: I would assume, minister, that all that would be on the title would be that it would be now located within a designated growth area. There would be no reference to charges. It would just be, 'Your farm, this allotment, is in the designated area of Mount Barker,' because if you do not ever change the land use there is no liability.

The Hon. K.J. MAHER: You are quite right. If you do not ever change the land use, or subsequent buyers do not ever change the land use, then there is no liability; it is only on those events. If you never change the land use, whether you never do it or whether 40 buyers into the future never change the land use, then this never becomes payable—that is exactly right.

The Hon. D.W. RIDGWAY: I still want to know why you would be able to impose a charge over the land without the agreement of the owner. Everybody has agreed; it does not make sense.

The Hon. K.J. MAHER: I am advised the charge is a charge over the land—that is the mechanism by which it is registered on the title. It is not a charge as in, 'We are going to charge you $1,000': it is the charge over the land that is registered on the title. It is not that the minister will force you to pay, but that encumbrance may be on the title. It is the use of charge in the property law sense of being able to register your certificate of title, not a charge as in, 'We are going to charge you money.' Your mortgage is a charge against your house.

The Hon. M.C. PARNELL: Just to move to a slightly different topic that is also included within this amendment, if worse comes to worse and people do not pay, then there is a mechanism in here for basically selling the land and recovering the money that is owed. One of the proposed new sections, 163D—Enforcement of charge, sets out the sort of pecking order, if you like, when the land is sold.

Basically, what it says is that, if you have a forced sale of someone's land in order to recover the money that is owed, firstly, you have to pay for the cost of the sale; and, secondly, if there are any sort of pre-existing mortgages to the bank, for example—that was the question I was asking yesterday—pre-existing registered mortgages get paid. The infrastructure charges we are talking about come in third, and then there are other lower ranking priorities.

There are some other amounts of money that people might owe that are also charges against the land—for example, unpaid council rates—so, my question is: where in the pecking order would unpaid council rates fit? If someone has got to the point where you are selling their land for not paying an infrastructure contribution, chances are they probably have not being paying their council rates for some years either. My question is: do council rates rank higher or lower than infrastructure charges?

The Hon. K.J. MAHER: I am advised that council rates would be fifth, so below the discharge of these liabilities.

The Hon. M.C. PARNELL: I thank the minister for his answer; that was my interpretation as well. You would hope that the amount they get for the block of land would cover all the debts that are owed, but if it were a property that was very heavily mortgaged—you know, 90 per cent to the bank—the pecking order therefore becomes important, because the people at the bottom of the list do not get paid. They are the ones who miss out.

The Hon. K.J. Maher: That can be the case now, though.

The Hon. M.C. PARNELL: Yes, but I guess my point is that if someone is going to miss out then the council is going to miss out before the infrastructure provider misses out. However, I do not need to take it any further; the minister has answered the question.

The Hon. D.W. RIDGWAY: I would like to ask a question; my colleague was questioning me and I did not have an answer. We used the Hon. Mark Parnell's broccoli farmer, but I would prefer to use a brussels sprout farmer because I am happier for them to disappear than the broccoli. Let us say that they have farmed there for 30 years and it is 100 hectares in the middle of 1,000 hectares, a bit like Mount Barker. They have been there for 30 years and all the infrastructure is built, and there are trees and everything looks perfect, but it is 100 hectares.

They are still required to pay their $5,000 an allotment that we have been using as a notional figure, yet everything is funded. Does that still go to the scheme? If everything is funded what happens to that money? Looking further back at one of the earlier amendments, these charges could be indexed; so over 30 years, $5,000 an allotment at CPI is probably $10,000 an allotment. Who actually gets that money if the infrastructure has already been paid for and delivered?

The Hon. K.J. MAHER: That is a very good question. We do not have an immediate answer in that circumstance where, for example, 50 or 60 years down the track the broccoli farmer is the only hold-out that there has been and then they decide to develop one of those two triggerable events. I will take that on notice and bring back an answer as to exactly how that would relate. We do not have an answer right now about how the scheme would react to such an event. It is a sensible question.

New clauses inserted.

Clauses 164 to 167 passed.

Clause 168.

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

Amendment No 90 [Emp–4]—

Page 144, after line 36—Insert:

(6a) If a council incurs costs in recovering a charge as a debt, the council is entitled to claim the reimbursement of those costs (insofar as they are reasonable) from the relevant fund established under Subdivision 4.

This clause makes it clear that, where a council incurs costs in recovering a charge as a debt, it is entitled to recover those costs. This provision has been added following consultation with the Local Government Association.

The PRESIDENT: Are we all happy with that?

The Hon. D.W. RIDGWAY: I am happy, but I do want to ask a question I had a little note to ask some time ago about the basic scheme. Given that the minister says we are here until 11 or 12 o'clock tonight, I will ask it. We often talk about the farming situation—the Hon. Mark Parnell's broccoli farmer, or I have talked about farms—but I wonder, and I use Bowden as an example where you have a parcel of land in the city, can there be a basic scheme for the delivery of a new exit onto Park Terrace and some infrastructure that is required to make that scheme work? Brownfields to city is a general scheme and the basic scheme is in the country (a farming property) but my understanding is the basic scheme would apply to developments like that, I think. I just want a clarification.

The Hon. K.J. MAHER: With the basic scheme, the primary intention is for that sort of broadacre development, as has been pointed out, but if it is a large-scale urban infill development, then, yes, it has the potential to apply there.

Amendment carried; clause as amended passed.

Clause 169 passed.

Clause 170.

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

Amendment No 91 [Emp–4]—

Page 145, line 18—Delete 'Subdivision 3' and substitute:

Subdivision A2 or 1 (including in conjunction with the operation of Subdivision 2A or 3)

Each infrastructure scheme will have a fund established into which funds will be paid. These funds will be applied towards the purpose of the scheme. These amendments are consequential in that they provide that money from charges on land which are payable to the minister are paid to the fund.

The Hon. D.W. RIDGWAY: I have some questions in relation to the fund. My colleague the Hon. Mr Lucas, having been a treasurer and a shadow treasurer, is not here. Clause (2)(c) is 'any money advanced or made available by the Treasurer for the purposes of the fund'. I assume that the Treasurer may advance the funds of money to do some particular works and then recover that cost as money is paid into the fund. Is that what is envisaged or am I not reading it accurately?

The Hon. K.J. MAHER: Yes, that is correct.

Amendment carried.

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

Amendment No 92 [Emp–4]—

Page 145, line 20—Delete paragraph (a) and substitute:

(a) any money—

(i) payable to the Minister under a charge imposed under Subdivision A2 (including under Subdivision 2A); or

(ii) payable by a council and recovered under Subdivision 3; and

This amendment is consequential on the last amendment.

Amendment carried; clause as amended passed.

Clauses 171 to 192 passed.

Clause 193.

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

Amendment No 12 [Parnell–2]—

Page 167, lines 1 to 11—Delete paragraph (c) and substitute:

(c) subject to subsection (3), the Court may, in dealing with an application from a person to be joined as a party to the proceedings (other than the Crown, a relevant authority applying under section 116, or a person who was entitled to be given notice of a decision in prescribed circumstances (if relevant)), determine to grant the application if the Court is satisfied that—

(i) the person has a special interest in the subject-matter of the application; or

(ii) the person is seeking to protect the environment in the public interest (if relevant); or

(iii) the person should be joined as a party to the proceedings on another ground determined to be appropriate by the Court.

(3) Despite subsection (2)(c), the Court may refuse to grant an application from a person to be joined as a party to proceedings if the Court is not satisfied that the interests of justice require that the person be joined as a party.

We have just leapt pages ahead and we are well beyond infrastructure, so we need to get our heads out of that space and back into the territory of the member for Unley in another place and the member for Adelaide in another place. I want the Hon. David Ridgway to pay attention to the interests of those two of his colleagues because the amendment that I am proposing to clause 193 relates to people who have engaged in the process of commenting on a development and what the rights of those people are once a matter has ended up in court. I will give you a typical situation. Under the current system we have this notion of a category 2 development. It is, for example, the near neighbours of a proposed development, and we have used the—

The Hon. D.G.E. Hood interjecting:

The Hon. M.C. PARNELL: Yes, the Hon. Dennis Hood's example. We have not talked about Unley Road for a while, so we need to bring it back to Unley Road. That was a category 2 development, so the people who lived nearby, the people who were the immediately adjoining neighbours or within 60 metres, had the ability to comment on that development. They had the ability to go to the Development Assessment Commission, eyeball the commission and have their say and be heard.

If in that case the Development Assessment Commission had rejected the application and said no to that apartment building on Unley Road, then the developer would have had the legal right to take that to court. There would have been an appeal to the Environment, Resources and Development Court. It would have been the developer taking on the decision-maker. The question then arises: what role, if any, should those neighbours who participated in the process have? Should they have any rights as well?

Under the act as it currently is, and under this bill, they do not have an automatic right to be part of that appeal even though, for example, the reason that the Development Assessment Commission might have rejected the development was because of the excellent arguments put forward by the neighbours. That might be why they said no.

When it goes to court, at the suit of the would-be developer who is complaining that they should have been given approval and they were not, very often the neighbours want to participate in the court proceedings. What they have to do is lodge what is called an application for joinder. In other words, they are not a party as of right, but they have the ability to go to the court and say, 'Excuse me, court. We have a very valid and legitimate interest in this matter and we think you should allow us to be part of this court case.' To be honest, what the residents are often doing is trying to put a bit of backbone into the decision-maker to stop them caving in and effectively overturning their decision.

In relation to those joinder applications, under clause 193, the way the bill currently words it, it talks about circumstances in which the court should not allow someone to join and it basically says if the court is not satisfied that the person has a special interest they should not allow them to join the court case. What I have done in my amendment is pretty much take the substance of what is there and reverse it. My amendment talks about the things that the court should take into account in deciding to allow someone to join rather than the factors that should go to not allowing them to join.

I have kept all the same requirements of the government's bill, that is, that the person might have a special interest or that there is some other ground that the court thinks is appropriate to allow them to join. I have added one extra ground and that is that the person is seeking to protect the environment in the public interest. In other words, the bill already recognises someone who has a financial stake in it. They have a personal stake in it, they own the property next door and are directly affected and, hopefully they will be allowed to join.

You might have a situation where someone is not in it for their own personal gain but there is some public interest reason why they think they should be allowed to join the court case, and I want the court to be able to take that into account. My amendment does not oblige the court to let anyone join the court case. If the court does not think someone is going to add value to the proceedings, the court is going to say no, and that is just the way it is.

I do want the court to be able to at least frame the question in terms of, 'Who should we allow?' rather than, 'Who shouldn't we allow?' and they should also have in mind not just self-interest but also the public interest. If someone has something to contribute to the resolution of the dispute, then the court should at least be able to consider them for joinder. I think it is a fairly simple amendment. Hopefully, I have not made it sound too complicated. It is not radically different from what is there but I think, symbolically, it is important.

The Hon. K.J. MAHER: I appreciate the sentiments of, essentially, flipping that, as the Hon. Mark Parnell has outlined. However, the government opposes this amendment. It is our view it would unworkably broaden the standing to include absolutely any person or individual organisation seeking to protect the environment and public interest. The current provisions do not limit the court's consideration of economic interest alone, so we would oppose the amendment and suggest it remains as it is.

The Hon. D.W. RIDGWAY: I indicate the opposition agrees with the government on this and we will not be supporting the honourable member's amendment. It is long and we still have not completed the debate. We are supportive of reform and we are mindful that the Premier is on the record worried about the state being a rust bucket and he has gone somewhere overseas to the US to have a look at how they change those things. We are really mindful of the fact that we have to get this economy moving and when it comes to development, while we need some appropriate safeguards, we do not want to broaden it too far so that it could frustrate the whole process, so we will not be supporting the honourable member's amendment.

Amendment negatived; clause passed.

Clauses 194 to 201 passed.

Clause 202.

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

Amendment No 94 [Parnell–1]—

Page 175, lines 36 to 40—Delete subclause (15) and substitute:

(15) In proceedings under this section, the Court—

(a) must, if it is considering whether to make an order to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed, take into account that matters set out in subsection (16a); and

(b) may not require an undertaking as to the payment of any amount that may be awarded against the applicant under subsection (16).

This is not consequential but it does relate to the same issue, and that is the issue of what we call third-party enforcement of planning laws. Something that is a fundamental principle of environmental law is that, normally, citizens should be able to rely on the proper authorities to do their job properly.

So, if someone has broken the law, a planning law or pollution law, you normally would expect that the proper authorities, whether it is the Development Assessment Commission or the planning commission, will take action to remedy the breach. However, there are circumstances where, for whatever reason, the proper authorities are unable or unwilling to act. In those circumstances it is important for citizens to be able to go to the umpire and enforce the law.

If the only people entitled to enforce the law are reluctant to do so, then the law becomes an ass, so we do need the ability for third parties to be able to go to court and say, 'These people have broken the law and we require orders forcing them to get back into compliance.' One of the barriers to court cases like that is the ability of the court to basically prevent groups, in particular, from mounting legal challenges by ordering what is called security for costs or undertakings as to damages. They are the two phrases.

Basically what it means is that a group, for example, would go to court and convince the court that they have an excellent case—it might even be a lay-down misère; they might be able to convince the court that there is a prima facie case that the law has been broken—and yet the developer (often the other side) can say to the court, 'We don't think their case is very strong. You need to force this group'—let's call it a residents group—'to put $100,000 into the trust account of the court before you let the case proceed.'

In other words, often the developer will say, 'We think we're going to win. We don't think they've got a strong case and we want them to put their money up-front.' Your average residents group at that point folds; it just cannot do it. You might have a meritorious case that never gets its day in court because the court orders that money has to be put in trust to compensate the developer for their legal costs in the event that the third party action fails.

Really, what my amendment No. 94 seeks to do is basically still allow for the court to make the decision. If the court thinks that it is a bit of a half-baked case and they do not think it is that meritorious and they think that the developer is likely to win, then the court can order that the money be put up-front, put in the court's trust account and that effectively will kill the court case—it will not go ahead.

What I want the court to take into account is a range of matters, including whether the application is being brought in the public interest or not. In other words, these cases are not brought lightly. If it is a group that is bringing the case because they think there is an important public interest element involved, then they should at least be given their day in court and they should not be ruled out at first base by having to put an unreasonable amount of money up-front into the court's trust account.

I have to say, for students of environmental law, that this provision has killed off some of the most meritorious cases in Australian history. They do not even get started because these groups, on the whole, do not have tens of thousands of dollars that they can just deposit into the court. They are usually volunteers, they usually have volunteer lawyers and they are usually pursuing the case in the public interest.

This is a series of amendments, Nos 94, 95 and 96—and I will do this as a test for them all—basically saying that the court, in deciding whether or not to force a third party to put money up-front, has to take into account, if it is a body corporate or an unincorporated body, what is the purpose or objects. In other words, is it an environmental group or a residents group or a human rights group or whatever—they have to take that into account—and also whether or not the application is brought in the public interest.

I can think of a good example, being a case that I brought many years ago on behalf of the Whyalla Red Dust Action Group. Even though we are now despairing of what is happening in Whyalla, that has nothing to do with the environment; that has to do with the price of steel. Certainly the Environment Court basically said, 'No, this is a group of residents. They are incorporated. It is in the public interest. They should at least be able to test their case.'

If the court had said, 'You can only bring this case if you put $50,000 in the court's account,' the case would have died straightaway, and that would have been unjust because the very first thing the court said was, 'No, this company is causing a lot of pollution; they've got a case to answer.'

That was a case under the Environment Protection Act, but exactly the same principles apply under the Development Act. I do not want to go on any more about it than that. All I want to do is give the court some extra guidance to help them make a decision about whether they should rule cases out by using a financial penalty up-front or whether they should at least allow meritorious public interest cases to go to trial.

The Hon. K.J. MAHER: I thank the honourable member for his contribution. Whilst I understand his reasoning behind this amendment, the government opposes the amendment. The clause proposed in the bill provides for what is provided for in the Development Act in section 85(15). We do not support essentially broadening that to allow one to go to court potentially without any security so that, if costs were awarded against them and they could not pay, the party could not gain redress. We support what is in the current bill and basically transposing that provision into this new act.

The Hon. D.W. RIDGWAY: The Liberal Party party room has considered this amendment and we are with the government: we will not be supporting the honourable member's amendment.

The Hon. M.C. PARNELL: I fully expected that outcome, and given the hour, I will not be dividing. I just make the point that—

The Hon. D.W. Ridgway: Don't.

The Hon. M.C. PARNELL: It is an important point. When a provision is a direct copy of something that is in the current act, we are being urged to accept it because, 'It's just the same as what we've had before.' Yet, the vast bulk of this legislation we are dealing with is new stuff. We are being invited to revisit the planning scheme and the laws around it. I do not resile from the fact that I have been against this provision in section 85 of the Development Act since 1993. This is a rare opportunity I get to reagitate the question.

I can see that we do not have the numbers and I will have to just rely on the court to make sensible decisions. They are not obliged to require this up-front money from third parties bringing cases, so I am hoping that, even without the additional guidance that I was proposing to insert, they will still exercise caution and not effectively dismiss meritorious cases simply because the community group trying to enforce the law happens to be poor.

Amendment negatived.

The Hon. M.C. PARNELL: Amendments Nos 95 and 96 are consequential, so I will not be moving those.

Clause passed.

Clauses 203 to 210 passed.

Clause 211.

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

Amendment No 93 [Emp–4]—

Page 180, after line 16—Insert:

(2a) The court must, in determining whether to make an adverse publicity order, take into account any material before the court relating to the effect that the taking of action or actions that the court proposes to specify in the order is likely to have on a person other than the offender.

This amendment has been made in response to industry concerns that the impact of naming and shaming businesses might result in job losses or business closure that would ultimately punish employees and families. The government has agreed that, while weighing up whether to issue an adverse publicity order, the court should be required to contemplate the potential broader impacts for those other than the offender beyond what was intended.

The Hon. D.W. RIDGWAY: Could the minister outline in relation to an adverse publicity order:

…in relation to the person, (the offender) requiring the offender—

(a) to take either or both of the following actions within the period specified in the order:

(i) to publicise, in the way specified by the order, the offence, its consequences, the penalty imposed and any other related matter;

(ii) to notify a specified person or specified class of person, in the way specified in the order, of the offence, its consequences, the penalty imposed and any other related matter;

I am just trying to work out in what circumstances you would make an adverse publicity order.

The Hon. K.J. MAHER: I am advised that the call would likely only be applied in quite egregious circumstances where the court thought that there was a need to warn the public.

The Hon. D.W. RIDGWAY: Warn the public of what, a clear and present danger to them, or a—

The Hon. K.J. MAHER: What circumstances?

The Hon. D.W. RIDGWAY: Yes, what would cause it? Is it their public safety, is it financial security, the building work is not safe? I am just interested to know in what circumstances you would issue an adverse publicity order.

The Hon. K.J. MAHER: An example might be if there was a builder with ongoing serious breaches about the quality of construction who is taken to court, and the court decided it was the public interest for that publicity order to then do that. That example would be a consumer protection measure, effectively.

Amendment carried.

The Hon. D.W. RIDGWAY: Mr Chairman, can I just ask a question about the amendment we have just had a vote on? I think the minister was saying that the court has to take into consideration whether the adverse publicity order will have some damaging effect potentially on employees and job losses, I think he said. If you have a builder that is doing something that is wrong and you make an adverse publicity order, they are going to stop building. That is my recollection of what your explanation was, so how can you have an adverse publicity order that does not have an impact on the business? Why would you do it?

The Hon. K.J. MAHER: That is just one factor that may be taken into account if there are groups of employees. It is just one of the factors that may be taken into account by the courts.

The Hon. D.W. RIDGWAY: What are all the other factors that the court has to take into consideration before issuing an adverse publicity order? If someone is doing something wrong and the public needs to be informed, there is no, 'Oh, well, we had better be quiet about it, we better not do it because somebody might lose their job.' If it is a public safety risk, a public risk or a financial risk to members of the public they have every right to know, regardless of the impact on the business.

The Hon. K.J. MAHER: By way of another example, it might be an ongoing planning breach, so it is not a clear and present danger (or the words that you used before) but a serious breach; but it might be one where the court does take into account the impact of that naming and shaming on the business. It is just one of the factors taken into account so that the court might decide not to name and shame that would ultimately possibly punish employees and families.

The Hon. D.W. RIDGWAY: I will ask the industry for some clarification on that.

Clause as amended passed.

Clauses 212 to 230 passed.

Clause 231.

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

Amendment No 6 [Ridgway–4]—

Page 192, after line 5—Insert:

(1a) The Minister may only act under subsection (1) if the Minister is acting on the advice of the Commission.

This is one of the amendments from set 4 of my amendments to depoliticise it, if you like, and make sure that the minister has to act on advice from the commission and cannot act alone. It is one on which we have some support from the chamber, to try to make sure that the commission has much more power and to take away as much power as possible from the minister.

The Hon. K.J. MAHER: I thank the honourable member for his contribution and his amendment. This provision is derived from section 78 of the Development Act where the minister may acquire land through the process set out in the Land Acquisition Act 1969. The government opposes this amendment. It is our view that it unduly fetters the minister's power. This provision is used very sparingly and only for genuine public importance. It is also a power, as I said, that is subject to the provisions of the Land Acquisition Act. In exercising this power, the minister would be, as they should be, subject to parliamentary and public scrutiny if it were used inappropriately.

The Hon. M.C. PARNELL: I have a question of the minister. I understand that he said that there is a provision like this already in the Development Act. I am not aware of it ever having being used but it may have been. My question is: are there not heads of power under the existing acquisition of land laws that would be sufficient? In other words, we are very familiar, and the Hon. John Darley, in particular, has done a lot of work on people who are having their properties acquired because of road widening projects. Basically with government public infrastructure projects, if you need to put a pipeline down, you can acquire land.

What disturbs me a little about this clause is that it says that minister may acquire land where the minister thinks that it is reasonably necessary for the implementation of a development authorisation of a prescribed class. What that says to me is that, for any private developer who wants to do any form of development, the government just has to put it in the regulations and all of a sudden you have private developers effectively taking advantage of the compulsory acquisition of land, hanging onto the skirt of the minister. I think that is quite a worrying trend because compulsory acquisition, given the status of the right of property in our Western society, is not one that is lightly taken away.

I can see the Hon. David Ridgway's intention is to put some rigour into it by at least adding an extra level, or getting the commission involved. My basic question is: are there not powers sufficient in the existing Acquisition of Land Act; and is it correct that the minister could effectively prescribe any form of private development as being eligible for compulsory acquisition of land?

The Hon. K.J. MAHER: My advice in relation to that specific question is that the Land Acquisition Act provisions only apply if another act points to it.

The Hon. M.C. PARNELL: I will just give you an example from my youth. In the suburbs of Melbourne there was a developer who was building a shopping centre. It was quite a large shopping centre and they, by treaty, negotiated with all of the property owners there and they bought up all the houses and demolished them, and they all became the car park of the shopping centre, except for one little old lady, who I think was in her 80s or something.

She did not want to move; she was not interested in selling her house. It was not an issue of price; she had always lived there and she wanted to stay living there. What happened was they built the development around her and so there was this little island, a little cottage standing alone by itself in the middle of a sea of car parking. People would say, 'Oh that's terrible, what is that house doing there?' Well, it was her house and she did not want to sell it.

It seems to me that, under this legislation, if we were to have a shopping centre-led economic recovery for South Australia, the government could prescribe that all shopping centres can take advantage of the compulsory acquisition of land, and it would seem to me that this provision could be used to force that person out of their home. They would be compensated, absolutely. They would go through the mechanism and they would get compensated, but it was not what they wanted; they wanted to stay. I give that as an example. I think it could lead to unfairness.

The Hon. D.G.E. Hood interjecting:

The Hon. M.C. PARNELL:The Castle. In fact, I think there is a prize for anyone who can invoke The Castle; certainly the lawyers have a prize for anyone who can invoke the vibe of the constitution, and the higher the court that you do it in I think the greater the kudos. I make that observation. I think it is a worrying clause, I accept that it already exists, but the Greens will be supporting the Liberal amendment which gives that extra level of scrutiny. The minister says it is unnecessary but I am nervous about how this clause could be used. I want an extra set of eyes cast over it.

The Hon. D.G.E. HOOD: Looking at the wording of the amendment, the amendment says that the minister may only act under subsection (1) if the minister is acting on the advice of the commission and, as honourable members have discussed, this particular part of the bill deals with the compulsory acquisition of land. We have had a longstanding practice, as the Hon. Mark Parnell admitted, where the acquisition of land is the role of the government through the minister in order to make that decision. Ministers do that very reluctantly. They certainly pay a heavy political price in the circumstances when they do it quite often, as we are experiencing at the moment here in Adelaide.

We will not be supporting the amendment. When ministers act in that regard, they are fully aware of the impact on the community and the potential political impact on them and their government if they get it wrong, so that in itself is a significant check and balance on any abuse of that. Some might argue that it is what the amendment's intention is, and that is to argue that it is ideal to have the commission have a role in that, but this amendment goes further than that. This amendment requires that the minister can only do it when the commission agrees, and that is a bridge too far for us.

The Hon. J.A. DARLEY: I will be supporting the government on this issue. I cannot think of a case where a minister has done this or any government department in the past.

The Hon. D.W. RIDGWAY: We have an opportunity. We have a select committee with the Hon. Mr Darley on compulsory acquisition of land on the north-south corridor. I would have thought the amendment we are proposing is that the planning commissioner gives advice to the minister that, yes, you must compulsorily acquire a particular property. I would have thought that is a sensible safeguard. The Hon. Mark Parnell has indicated the Greens are supporting the amendment, and his colleague the Hon. Tammy Franks I am sure will support it with him, but I am uncertain about the Hon. Kelly Vincent. I indicate that I will have to call for a division. Let's vote on it first.

Amendment carried; clause as amended passed.

New clauses 231A and 231B.

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

Amendment No 94 [Emp–4]—

Page 192, after line 11—Insert:

231A—Advisory committees on implementation of Act

(1) The Minister must establish the following committees to provide advice on the implementation of this Act:

(a) after consultation with the LGA, a committee that relates to the local government sector;

(b) a committee that relates to entities involved in undertaking development within the State.

(2) The Minister may, in establishing a committee under subsection (1), make provision with respect to—

(a) the membership of the committee; and

(b) the procedures of the committee; and

(c) the functions or scope of operation of the committee; and

(d) other matters as the Minister thinks fit.

(3) Nothing in this section limits any other committee or other entity that may be established, or any other step or other process that may be undertaken, in relation to the implementation of this Act.

231B—Inquiries by Commission

(1) The Commission must conduct the following inquiries under section 22(1)(e):

(a) an inquiry into schemes in relation to the provision of essential infrastructure under Part 13;

(b) an inquiry into the scheme for off-setting contributions and the open space contribution scheme under Part 15 Division 2.

(2) The inquiry under subsection (1)(a) must—

(a) investigate alternative schemes for the provision of essential infrastructure and make recommendations as to whether any such scheme should be adopted in this State; and

(b) investigate alternative schemes for the provision of prescribed infrastructure (within the meaning of section 161(18)) and make recommendations as to whether any such scheme should be adopted in this State; and

(c) consider such other matters as the Commission thinks fit.

(3) The inquiry under subsection (1)(b) must—

(a) investigate alternative schemes for off-setting contributions and contributing to open space and make recommendations as to whether any such scheme should be adopted in this State; and

(b) consider such other matters as the Commission thinks fit.

(4) The Commission must furnish the following reports on inquiries under this section to the Minister:

(a) a report on the outcome of the inquiry under subsection (1)(a) within 12 months after the commencement of this Act;

(b) a report on the outcome of the inquiry under subsection (1)(b) within 2 years after the commencement of this Act.

(5) The Minister must cause a copy of each report submitted to the Minister under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

(6) A proclamation for the purposes of this Act fixing a day on which Part 13 Division 1 Subdivision 1 will come into operation cannot be made until after a report on the outcome of the inquiry under subsection (1)(a) has been laid before both Houses of Parliament.

The government moves this amendment in response to consultation with industry and the local government sector. Of course, the government considers both sectors are to be valuable partners in establishing a new planning system; hence, it has always been intended to consult with both groups regarding the implementation of planning reforms.

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

Amendment No 1 [Parnell–4]—

Amendment to Amendment No 94 [Emp–4]—New clause 231A(1)—after paragraph (b) insert:

(c) a committee that relates to—

(i) community participation; and

(ii) ecological sustainability and liveability,

with respect to planning, design and development.

The Greens will be supporting the government amendment because the honourable member is proposing to create two subcommittees or, rather, advisory committees. As he said, the development industry have wanted one, so they are getting one. The local government sector wants one, so they are getting one.

The Conservation Council wrote to me and said that one of the biggest criticisms of this legislation is that it is being driven by a development agenda and yet the government, through things like the community charter, has made some inroads into making sure that the views of communities are relevant. Therefore, it makes sense for there to be a third advisory committee, and that is one that represents community interests.

The words I have used are that, as well as the local government committee and the industry committee, we will have another committee that relates to community participation, ecological sustainability, and liveability. They are words I have taken from previous amendments; some of them were used by the Hon. Kelly Vincent. I think the words 'liveability' and 'ecological sustainability' were from the Hon. Kelly Vincent's amendments, and 'community participation' is just inherent in the legislation.

This is an important amendment because if it passes it will indicate that this parliament realises that the planning system is not just about the development lobby, it is not just about local government, but it is also about the community sector. I am supporting the government's two committees, and I am urging the council to support this third committee as well.

The Hon. K.J. MAHER: I will take a reverse order. The government indicates that it will be supporting the Hon. David Ridgway's amendment. In relation to the Hon. Mark Parnell's amendment, the government would prefer not to specify each separate issue. Under government amendment No. 94, new clause 231A (3) states:

(3) Nothing in this section limits any other committee or other entity that may be established

We would say you can do that anyway without the Hon. Mark Parnell's amendment. Having said that, we are not going to oppose the amendment even though we do not think it is necessarily the best way, and it can be done under there; but we will not be opposing the amendment.

The Hon. D.W. RIDGWAY: The opposition has had only partial feedback from industry and stakeholders in relation to the Hon. Mark Parnell's amendment; lukewarm support may be the best way to describe it, but lukewarm is better than cold. Given that we will be recommitting the bill—and we are happy to support it this evening—if there is some violent opposition to it, then we will consider that when we recommit.

The Hon. M.C. Parnell's amendment carried; new clause 231A as amended inserted.

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

Amendment No 1 [Ridgway–8]—

Amendment to Amendment No 94 [Emp-4]—

New clause 231B(4)(a)—delete 'within 12 months' and substitute 'no earlier than 2 years'

As members would be aware, this relates to inquiries by the planning commission into the infrastructure schemes that we have been debating for most of the day. My understanding of this provision is that, if you could not get 100 per cent agreement, the commission could have an inquiry into that scheme and make a recommendation or give a report. Subclause (5) provides:

The Minister must cause a copy of each report submitted to the Minister under this section to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

Subclause (4) provides:

The commission must furnish the following reports on inquiries under this section to the Minister:

(a) a report on the outcome of the inquiry under subsection (1)(a)—

And subclause (1)(a) is in relation to the schemes in relation to the provision of essential infrastructure—

within 12 months after the commencement of this Act;

We think that is too short a time frame and we would like to see it pushed out to 24 months, so we are inserting the words 'no earlier than 2 years'. I encourage members to support our amendment.

The Hon. K.J. MAHER: I previously indicated that we support the amendment.

The Hon. D.W. Ridgway's amendment carried; new clause 231B as amended inserted.

Clause 232 passed.

Schedule 1.

The Hon. M.C. PARNELL: I have some brief questions on schedule 1. I think schedule 1 is a good provision. It goes to the accountability and the transparency of potential conflicts of interest when it comes to decision-makers under the planning scheme. Basically my understanding is that schedule 1 proposes that certain people will have to disclose their interests in much the same way as I guess members of parliament disclose our interests annually. Elected members of local councils disclose their interests. This is proposing that key decision-makers and relevant officials disclose their interests as well.

There is an earlier clause that we have dealt with—I think it is clause 50 or clause 80—which basically has non-voting, occasional members of development assessment panels. In other words, we have panels of five members; we have five people: one local councillor, apparently, and four others, but there is also a provision for extra people to be appointed to panels in a non-voting role. My question is: will those people be caught by the disclosure requirements? Bear in mind that they might only ever be called to serve on one panel in relation to one development, being an issue in which they have some expertise, and they are non-voting members. Will those part-time, occasional members of panels also be required to disclose their interests under schedule 1?

The Hon. K.J. MAHER: I thank the honourable member for his question on this schedule. I am advised that, under clause 80(3)(a), occasionally members are taken to be members of panels in all respects; therefore, the disclosure provisions the honourable member has spoken about would apply.

The Hon. M.C. PARNELL: I thank the minister for his answer. It is a two-edged sword because at one level, yes, they are defined under clause 80 as members of panels, and therefore they will need to fill out a form. It may have impacts on the number of people who are willing to put themselves forward to serve as additional members on panels because they will know that all of their assets, liabilities and whatever will be on the public record. I will accept the answer.

My next question relates again to schedule 1, clause 5, which is restrictions on publication. This is a provision which basically says that, if you are going to access the details about the financial interests of, for example, panel members, you are not allowed to publicise that information, unless you do so fairly and accurately (I think that makes sense), but also there is an additional one: it has to be published in the public interest. I find that a curious provision, because journalists can trawl through the members of parliament register of interests, and I do not believe they are required to satisfy a public interest test before writing articles about the shareholding or property portfolios of members of parliament. That is my understanding; I will be corrected if I am wrong.

Similarly, with members of local councils, I do not believe there is a public interest test. In other words, if it is on the record, and if a journalist, provided they are not misquoting it, basically says, 'Councillor Smith owns 57 rental properties,' they should be allowed to say that regardless of whether it is in the public interest or not. My question is: where has this public interest test come from and does it apply to any other disclosure regimes in relation to disclosure of interest registers?

The Hon. K.J. MAHER: I am advised that is based on the current schedule 2, section 5 of the existing Development Act.

The Hon. M.C. PARNELL: My understanding is that we do not currently have a disclosure provision that relates to all of the decision-makers under the current Development Act. I could be wrong. I know the act reasonably well, but I have not looked at the back for a while. If the minister is telling me that every member of every development panel already has a disclosure of interests published out there, I am not aware of it, but I will stand corrected.

The Hon. K.J. MAHER: I am happy to take that on notice and bring back an answer that may be clearer. I have got the advisers looking at it now but, for the sake of the hour of the night, I will take that on notice and bring back an answer.

The Hon. M.C. Parnell: I am happy with that.

Schedule passed.

Schedules 2 to 5 passed.

Schedule 6.

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

Amendment No 95 [Emp–4]—

Page 213, after line 16—Insert:

(2) Section 221—after subsection (6) insert:

(7) Subsection (3)(b) operates subject to the following qualifications:

(a) an accredited professional under the Planning, Development and Infrastructure Act 2015 may only grant an approval under subsection (3)(b) with the concurrence of the council; and

(b) any other relevant authority under the Planning, Development and Infrastructure Act 2015 may only grant an approval under subsection (3)(b) after consultation with the council.

(8) The requirement to consult under subsection (7)(b) does not extend to an assessment panel appointed by the council.

This amendment has been drafted in response to concerns raised by the Local Government Association councils. The bill, as drafted, amends section 221 of the Local Government Act 1999 to provide that a person making an alteration to a public road is not required to obtain a separate authorisation of the council, if the alteration is approved as part of the development authorisation under the act.

Amendment carried.

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

Amendment No 96 [Emp–4]—

Page 213, after line 21—Insert:

(6b) Subsection (6a) operates subject to the following qualifications:

(a) an accredited professional under the Planning, Development and Infrastructure Act 2015 may only grant an approval under subsection (6a) with the concurrence of the council; and

(b) any other relevant authority under the Planning, Development and Infrastructure Act 2015 may only grant an approval under subsection (6a) after consultation with the council; and

(c) an approval to use the public road as envisaged by subsection (6a) will be for a period prescribed by the regulations (and, at the expiration of that period, this section will then apply in relation to the use of the road).

(6c) The requirement to consult under subsection (6b)(b) does not extend to an assessment panel appointed by the relevant council.

Again, this is a similar amendment that is being moved in relation to a response to concerns raised by the Local Government Association councils. The bill, as drafted, amends section 221 of the Local Government Act 1999 to provide that a person does not require a permit authorising them to use a public road for business purposes, if the use of the road is approved as part of the development authorisation under the act.

Amendment carried; schedule as amended passed.

The Hon. K.J. MAHER: I will not be proceeding to move amendment No. 97. This is consequential on previous amendments.

The Hon. D.W. RIDGWAY: I think all members are aware that the bill, I suspect, as a whole will be recommitted. I want to put on the record whether the minister or the government has any new amendments to the bill. I know there has been some speculation about the potential for some other arrangements in relation to the urban growth boundary. I want to make sure that the minister here, and also minister Rau, are well aware—and we sit in a couple of weeks' time—that the opposition has a process where we like to provide our party room with information on about the Friday prior to a party room meeting.

If there are new amendments—not just recommitting existing amendments where we supported the Hon. Mark Parnell but now we might change our mind, or the other way round and we did not support him and we might change our mind—if it is not new material, then that is one set of circumstances; however, if there is new material or new amendments proposed we need to be given a reasonable amount of time to consult with industry on them.

I am fearful of what we saw last year when the minister did not have any consultation, and we have gone now for 11 or 12 days, about five weeks, of sitting, I think, because the minister failed to go through the normal process of going out to industry and consulting with a draft bill. I just want to put on the record that we will be very happy to progress the recommittal in an orderly fashion, but we ask the minister and the government, if there are new amendments or changes to the amendments we have seen, that we are provided with them in an early enough time frame, with the expectation that we will be given a reasonable amount of time to consult with industry.

This is a very important bill. I think everybody agrees that you do not come back and review the Planning, Development and Infrastructure Bill every couple of years; it is something that is done about once a generation. There was a little bit of it done when I was first elected—

The Hon. K.J. Maher interjecting:

The Hon. D.W. RIDGWAY: No, the Hon. Mark Parnell gets quite excited about all this; it is the highlight of his parliamentary year to be immersed in the Development Act. Nonetheless, and putting aside all the humour, it is an important piece of legislation and we do not want to have to come back and revisit it. We want to be given adequate time to consider them, if there are new amendments. We have not seen any and we have not heard of any, but we have heard some whispers and speculation that there will be some changes to the urban growth boundary provisions, and we wish to have adequate time to consult with industry.

The Hon. K.J. MAHER: I thank the honourable member for the contribution he has just made. I will make absolutely sure that the minister responsible sees the comments he has made.

The Hon. D.W. RIDGWAY: I know it is late, but I will quickly add that we will not entertain debating the bill unless we have had reasonable time to consult with industry, and I would like to see some support from the crossbenchers from that point of view as well.

The Hon. M.C. PARNELL: Very briefly, my understanding is that having got to the end of the bill we could immediately recommit it and go back to clause 1. However, I think that would be an exercise in folly because nothing has really changed. I would be hoping to take the next week or two, certainly, to consult other parties and other stakeholders and talk to the planning minister about where we might go. I think that if we were to go straight back to clause 1 we would find that we would get exactly the same answers as we have got over the last five weeks.

I know the minister is keen to get the bill through, but I think that the best chance for getting a good bill is to just give us a little bit of breathing space now to revisit the decisions that have been made. Hopefully, the recommittal will be much faster as a result.

The Hon. J.A. DARLEY: I certainly agree with the sentiments of the Leader of the Opposition, and we will be working towards that end.

Title passed.

Bill reported with amendment.