Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: I thought I might use the opportunity at clause 1 to speak on an issue that was raised by the Hon. Tammy Franks in relation to training that had been provided for the APY Executive. I indicated, I think, off the top of my head, that I understood that training had occurred. I am happy to advise that governance training has been provided to the new executive. I think the new executive at the end of this week were having their second meeting. During the first meeting, the APY Executive received training from Crown Solicitor's Office representatives, who travelled up to Umuwa for the first meeting.

The Crown Solicitor's Office went through the APY act and went through the roles and responsibilities that members of the executive bore under the act. I am informed the training session went for several hours and the Crown Solicitor's Office representatives fielded many questions from the board. I am informed that the training provided was appreciated by those who were in attendance.

I think the South Australian State Aboriginal Heritage Committee had previously commented on just how valuable the training that particular officers from the Crown had provided them over the course of the last year had been in their better and more deeply appreciating the roles and responsibilities they have under their legislation. So, I am pleased that that occurred for the new APY Executive.

Also, the state and federal governments have been working closely together and will contribute funds for ongoing governance training for APY Executive Board members. The final design of this ongoing training has not yet been settled, but it is looking to involve ORIC (the Office of the Registrar of Indigenous Corporations), which has a very long history and capacity in the area of providing governance training for Indigenous organisations, to provide ongoing training for the APY Executive.

Clause passed.

Clause 2.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 2, lines 6 to 9—Delete clause 2

In doing so, I note that while this is a commencement clause, my other two amendments as filed are all on the same issue. The reason the commencement clause is the first one to come up is, of course, that should my following consequential amendments succeed, we would not need the commencement clause for this particular bill. So, what I will do is outline the arguments of all of my amendments in 1, and I will take this as an indicative position in terms of support or otherwise for my proposal, the guts of which, if you like, is amendment No. 2 [Franks-1].

This amendment seeks to reinstate the previous situation prior to the government coming into this place some three years ago and creating a provision where the minister may suspend the executive board of the APY for any reason that he or she thinks fit. There were already, and there are already, many ways that the minister can not only direct the APY and can not only direct the APY to sack a general manager; indeed, the minister could already, prior to that change to the act, take action to remove members of the board.

These provisions are at section 9D(4), 13A(3), 13G(4) or 13N, as outlined in my amendment No. 2. They also have knock-on effects, under those particular sections, to 12B, 12C, 12D and 12F. These cover things such as duty to exercise care or diligence, duty to act honestly, duty to respect conflict of interest and to comply with the code of conduct. They also cover such areas as attendance at meetings, reporting and budget requirements and quite a general 'minister may direct executive board' provision.

Prior to that debate three years ago, former minister Hunter already had at his disposal a range of tools with which to direct the executive board and to suspend members of the executive board, or to direct the executive board to sack a general manager. These provisions were codified and continue to be codified. Three years ago, the government came to us and asked for the ability to do it for any reason that the minister saw fit. The Greens oppose that approach. We do not think it is good enough to expect that the minister does not have to justify why they would suspend an entire executive board and so we seek to reinstate the supremacy of that codified range of reasons for a minister to act in that way. With that, I have already moved the amendment and I commend it to the council.

The Hon. K.J. MAHER: I thank the honourable member for her explanation about the suite of amendments that she is moving. Whilst I understand the intention behind her moving those amendments, and effectively returning the act to how it used to be, the government's position is that the provisions that came in three years ago have had a significant effect on helping with accountability and transparency in the administration of the act and with the board and we will be opposing those amendments.

The Hon. T.J. STEPHENS: I rise to indicate that the opposition will not be supporting the amendments. In fact, throughout this, we will be supporting the government. Whilst this provision was rushed in and we were very unhappy about the way it was rushed in at the time, I believe the minister when he says that the ability to act and act swiftly has been quite dramatic with regard to giving the minister the ability to ensure that the board gets on with the business that is really important to people on the ground, on the lands. In my time visiting the lands over the last dozen or so years, we have only wanted to see conditions improve and the lives of people improve.

The reality was that, under the old provisions, the minister's hands were virtually tied because he would have to put in a long-winded argument before he could act. We have seen a revolving door with regard to CEOs being bullied by certain members. If they did not provide preferential allocation of moneys or advances, then all of a sudden they were deemed to be unsuitable as CEOs and were virtually bullied out of the position, which was an untenable situation for people on the land. For those reasons, the opposition strongly supports the government's position and will continue to do so until the passage of the bill.

The Hon. K.L. VINCENT: For the record, the Dignity Party supports this amendment.

Clause passed.

Clause 3 passed.

Clause 4.

The ACTING CHAIR (Hon. T.T. Ngo): I believe the Hon. Tammy Franks has an amendment. Are you pursuing those amendments?

The Hon. T.A. FRANKS: I indicated in my moving of an amendment at clause 2 that I see these as consequential, and I see this as consequential. I will not be moving this amendment. I simply add, quite honestly, I think the difference in what we are seeing on APY at the moment is more to do with the lack of a revolving door for the minister for a change, rather than a revolving door of general managers and APY executives. I hope that continues. I think this minister is more engaged and more active and more interested. If perhaps the minister had been in place some three years ago, we might not have needed to have made such a radical change to the act at that time.

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

Amendment No 1 [AborAffRec–1]—

Page 2, after line 19—Insert:

(2) Section 13O—after subsection (1) insert:

(1a) Without limiting subsection (1), the Minister should, unless the Minister considers it inappropriate to do so, advise Anangu Pitjantjatjara Yankunytjatjara and the Executive Board of the Minister's intention to suspend the Executive Board at least 7 days prior to the suspension taking effect.

This amendment suggests that the minister, if they are considering suspending the board, ought to give APY seven days' notice of their intention to do so. It does allow, though, if the minister considers it inappropriate not to do that, that there may be a day when time is of the absolute essence to act. I think we canvassed, when the act was changed a few years ago, that there may be a rare and exceptional circumstance that that is the case. This amendment has come about in part with consultation with the APY Executive. The government felt it was not unreasonable to give, in the ordinary course of events, seven days' notice of intention, if this part of the act is to be used.

The Hon. T.J. STEPHENS: On behalf of the opposition, I indicate that we will support the amendment.

The Hon. T.A. FRANKS: The Greens will support this amendment. A wise person once said it makes a bad act better.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 2, after line 19 [clause 4, after inserted subsection (1)]—Insert:

(2) Subsection (1) (as enacted by the Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board) Amendment Act 2017) will expire 5 years after the day on which it comes into operation.

As indicated in my second reading speech, my amendment provides for a sunset clause for this provision to expire after five years. The minister indicated in his briefing with me that he considered this tool to be important, especially given the actions of the previous executive. A new executive board has now been voted in and we are yet to see how they will perform. We do not know if these powers will be needed with the new executive. I am willing to give the minister the benefit of the doubt and provide these powers to him for another five years before bringing the matter back to parliament to consider whether these powers are actually necessary.

As I previously indicated, it is not so much the power to suspend the executive board that I am uncomfortable with, but rather it is the fact that the minister is not held accountable for the decision. They do not have to conduct an investigation into the executive before the decision to suspend is made. They do not have to provide a reason for suspension. Neither the bill nor the act outlines any avenues of appeal on the minister's decision. These are extraordinarily broad powers, and I may be more comfortable with the amendment bill if it contained some checks and balances, but there are none.

The minister wants ultimate discretion over the matter. This is very different to provisions in the Local Government Act, where the minister can appoint an administrator after a lengthy review and investigative process. This bill does not have these provisions or anything that remotely resembles them. I asked during my second reading contribution whether the minister was aware of any other minister who has similar broad powers. Can the minister advise the committee about these?

The Hon. K.J. MAHER: I thank the honourable member for his contribution and for his amendment. The officers will look at whether there are analogous things in our legislation. I am happy to come back and provide the honourable member with a response. The government opposes the honourable member's amendment. We have had a number of years of the act in operation as it currently stands. As I said in my second reading speech, and as I have said publicly inside and outside this chamber, I think the changes that have been made have had a significant effect on the operation of the elected executive and the administration of APY. For those reasons, the government is comfortable that it has operated effectively, so we will be opposing the five-year sunset clause that the honourable member seeks to introduce.

The Hon. T.J. STEPHENS: On behalf of the opposition, I indicate that we will be opposing the amendment. The reason we are back is because of the sunset clause that was initially put in. The minister has not officially had to use these powers, but they have been a valuable tool in his kitbag, and I think it is in no small part why we have seen quite a dramatic improvement in the cooperative way in which the APY Executive have worked with each other—we have had new elections—and we see this as an important tool going into the future. If in fact, at some stage, we can see that this is not working, I am sure that members in this place will be on the floor of the parliament with amendments in the future, but at this point we are very pleased to see the progress that is being made.

The Hon. T.A. FRANKS: The Greens will be strongly supporting this amendment, not that that increases our numbers or, indeed, will see it pass. It is disappointing, however, that a question that was raised at the second reading and again raised with regard to this clause and this amendment being moved by the Hon. John Darley has not been answered by the government. Does the government not have a single example of where such unfettered powers and such lack of a codified process exist for any other similar organisation?

The Hon. K.J. MAHER: I thank the member for her contribution and her support for her fellow minor party crossbencher in this matter. To trawl through all provisions in all acts that relate to a minister's power would be quite a large task, but we will continue looking. I am happy to bring that answer back to the honourable member at a later date.

The Hon. T.A. FRANKS: I am not asking the government to trawl: I am asking for one example—one single example.

Amendment negatived; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (16:30): I move:

That this bill be now read a third time.

Bill read a third time and passed.