Bills

Construction Industry Training Fund (Board) Amendment Bill

Committee Stage

In committee (resumed on motion).

New clause 6A.

The CHAIR: We are considering the amendment of the Hon. Mr Pangallo, amendment No. 2 [Pangallo-1], which has been moved by the honourable member.

The Hon. C.M. SCRIVEN: I want to remind honourable members of the contributions made just before we adjourned, which was where the minister representing the relevant minister in the other place talked about this board being a government board. He referred to section 11A, which says that the board acts as a principal adviser to the minister. That, of course, is true, but I would point out to members that there are a further 12 functions of the board, and I remind members of the fact that this is not an instrumentality of the Crown.

Therefore, what was said by the minister is quite illustrative of the intention of the government, which clearly is to change the nature of the board, and that does reveal the real reason for many of the changes in this bill, which is to ensure that the board is carrying out the agenda of the government of the day, rather than necessarily what is in the best interests of industry. However, be that as it may, we are currently looking at the Hon. Mr Pangallo's amendment, and I have nothing further to ask or comment on that.

The Hon. S.G. WADE: It is interesting that the filibuster continues. We are going back to comments made before question time. I will address the points the honourable member is making. Clearly, a board that is established by statute and appointed by the minister can be rightly characterised as a government board. I did not say that they are the lapdog of any government program.

The Hon. C.M. Scriven: But that is what you want.

The Hon. S.G. WADE: Sorry, I would like to make my comment, as I allowed you to make yours. The point is that, because of the fact that moneys go into a fund that needs to have appropriate governance, the parliament of this state has thought the matter is so important that it has legislated for it and it has given the minister a role. I think the minister, in discharging his or her responsibilities in relation to the board, is entitled to have appropriate information.

The Hon. Mr Pangallo rightly pointed out that this is not unusual. As I understood the Hon. Frank Pangallo's advice to this chamber, two similar boards in other jurisdictions have a similar power. That being the case, I think it reinforces the point I was making, which is that this is not a board over which it is inappropriate for a minister to have a flow of information.

The Hon. T.A. FRANKS: For the benefit of your wise counsel, sir, I indicate the Greens will support the Pangallo amendment. In this case we have had no representations opposing the Pangallo amendment, although I am somewhat concerned that we still do not know who really does support it by their specific titles and representative roles. However, seeking advice, you would imagine, is not something that will do harm. So, in this particular instance, we will support the amendment.

The Hon. C.M. SCRIVEN: For the record, I point out that the opposition is also supporting the amendment, notwithstanding our concerns about how it may be misused in the future. However, I do acknowledge that the intent of the Hon. Mr Pangallo is no doubt for increased accountability, so we will not oppose this amendment.

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

The Hon. S.G. WADE: I note, for the chamber's sake, that, in terms of the efficient discharge of duty, if we are going to spend so much time attacking a clause that you then support, it has all the hallmarks of a filibuster.

The CHAIR: Minister, it is not appropriate that you criticise the considerations of the chamber.

The Hon. C.M. SCRIVEN: Mr Chairman, may I just ask a question, as I have only been in this place—

The CHAIR: No, feel free to ask a question.

The Hon. C.M. SCRIVEN: Is scrutiny and questioning of an amendment, regardless of whether the final outcome will be supported or otherwise, not appropriate for a bill?

The CHAIR: Members in committee can ask as many questions as they so choose. There are some limitations in extreme circumstances, I hasten to add, in the standing orders. I do not want to give you a blank cheque. Are there anymore comments or questions on the Hon. Mr Pangallo's amendment, because I propose to put it to the committee?

The Hon. T.A. FRANKS: I have a question of the mover because there is not a specified minimum time limit for which the board is given to comply with the request: why was that the case?

The Hon. F. PANGALLO: I imagine that the minister could ask either at any time or annually whether he needs to see any documentation or any minutes. It will be up to the discretion of the minister.

The Hon. S.G. WADE: I would like to seek some advice on that if I could.

The Hon. T.A. FRANKS: I had a question for the mover of the amendment with regard to that. Should the minister, he or she, request the information under the provisions here will there be any penalty applied for noncompliance? What will be the recourse that the minister will have?

The Hon. F. PANGALLO: I cannot answer that, if there is one, but I imagine that they would need to comply with some existing framework within the way that the board operates.

The Hon. S.G. WADE: As I understood your earlier question, the Hon. Mr Pangallo, it was 'What's the time frame?' I sought advice and my understanding is that the written notice referred to in the Hon. Frank Pangallo's amendment could include a statement as to time frame, 'I want the reports or the minutes or the what have you within a certain time.' If the minister, he or she, was putting in an unreasonable time frame there may well be a dispute. However, my understanding is that you would expect the minister, he or she, to give a reasonable time frame and for that to be accepted by the board.

The Hon. T.A. FRANKS: This is now with regard to the Hon. Frank Pangallo's amendment but it is now to the minister representing the minister. What are the penalties for noncompliance where a minister would direct the board to provide this information? What would be the process for the board should it not wish to comply with the direction?

The Hon. S.G. WADE: I thank the honourable member for her question and, for the benefit of Mr Pangallo and the house, the advice I have received is that if the board failed to comply with a request there might be at least two possibilities. The two possibilities that we have thought of are that the government might take the board to court and my understanding is that the process is mandamus; in other words, asking the court to require the board to provide the documents in the report. They are the words used in the amendment. The court would then presumably say whether that was appropriate or not and they would presumably specify a time frame.

The other consequences relate more to the board and its discharge of its duties. All board members are required to discharge their duties under the act and, if the board failed to do that, it may well have consequences for the ongoing tenure of the board, is my understanding.

New clause inserted.

Clause 7.

The Hon. C.M. SCRIVEN: Just for my clarification, we are looking at clause 7, amendment of section 21, so this an opportunity for questions about that to the minister; is that correct?

The CHAIR: Yes, that is correct.

The Hon. C.M. SCRIVEN: This amendment deletes the requirement for any changes in the rate of levy to be approved at a meeting of the board at which at least one person—under sections which are now going to be deleted if this bill passes—representing employee associations and one person representing employer associations are present, so that will be deleted. Can the minister clarify whether the board will be involved in setting any changes to the rate of levy or will it simply be that they will be made by regulation and, therefore, the minister can do that without recommendation from the board?

The Hon. S.G. WADE: I am advised that any change in the rate of the levy will affect the building industry and construction industry more broadly, and the government would expect the board to be involved in consultation with stakeholders, and those stakeholders would include the previously prescribed employer and employee organisations so that they have an opportunity to have their views considered.

The Hon. C.M. SCRIVEN: Why, then, is the legislative requirement that the change to levy must be on the recommendation of the board being removed?

The Hon. S.G. WADE: The government does not regard that as the impact of this clause. We see it as consequential to the amendments to the composition of the board.

The Hon. C.M. SCRIVEN: I fully accept that that was probably the intent but I am querying whether there has been an unintended consequence of therefore meaning that a change to the levy can be made through regulation by the government without that being made on recommendation of the board. Notwithstanding the minister's previous allegations of filibustering, this is actually a serious concern, and I am wondering whether the government may wish to adjourn and reconsider that particular aspect before continuing. It is just a thought that the minister might want to consider.

The Hon. S.G. WADE: It is simply not our reading. I am not going to express a view as to whether or not the opposition is involved in filibustering. All I am going to say is that we have had due time for consideration. The honourable member is reading into the act, as it is proposed to be amended, things that are clearly not there. Let's do our job. Let's get on with this bill.

The Hon. C.M. SCRIVEN: I will ignore the comments because they are not appropriate for my question. If this clause passes, the act will then read:

The rate of the levy is 0.25 per cent of the estimated value of building or construction work, or such other percentage not exceeding 0.5 per cent of that value as the regulations may prescribe.

That is all it will say. There will be no recommendation from the board required for that to be changed through regulation; that is my understanding. If I am incorrect, I am happy to be corrected, but there will be no legislative requirement. I am taking that that is not the intent necessarily of the government, which was the reason for my question and possible suggestion.

The Hon. S.G. WADE: Thanks for clarifying that because I think what I would suggest to the honourable member is that the honourable member has misread the bill as it is applied to the act. Could I draw honourable members' attention to clause 7 on page 3 where it states:

Section 21(2)—delete 'approved at a meeting of the Board at which at least one person appointed by the Governor under section 5(1)(c), and at least one person appointed by the Governor under section 5(1)(d), are present'

The consequence of agreeing to that amendment is that the current section 21(2) would remain. It would not be deleted. It would merely be shortened and would stop at the word 'Board' second appearing. That being the case, it would read:

A regulation must not be made for the purposes of subsection (1) except on a recommendation of the Board approved at a meeting of the Board.

The Hon. C.M. SCRIVEN: I am simply trying to understand. If that is the situation, that would certainly allay my concerns, but I am reading that it states:

delete 'approved at a meeting of the Board at which at least one person…

Does that not mean that it will no longer say—

The Hon. S.G. WADE: Yes, sorry. Thanks for clarifying that. I have actually misquoted. It stops at 'the Board' first appearing, but it still has to be on the recommendation of a board and the recommendation of the board would have to be done at a meeting. Thanks for clarifying that. My initial advice was truncated.

The Hon. C.M. SCRIVEN: Thank you for that clarification. I am now happy with that clause.

Clause passed.

New clause 7A.

The Hon. F. PANGALLO: I move:

Amendment No 3 [Pangallo–1]—

Page 3, after line 32—After clause 7 insert:

7A—Substitution of section 38

Section 38—delete the section and substitute:

38—Review of amendments to Act by Construction Industry Training Fund (Board) Amendment Act 2018

(1) The Minister must, as soon as practicable after the third anniversary of the commencement of the Construction Industry Training Fund (Board) Amendment Act 2018, appoint an independent person to carry out an investigation and review concerning the amendments made to this Act by the Construction Industry Training Fund (Board) Amendment Act 2018.

(2) The investigation and review under subsection (1) must include the following matters relevant to the amendments made to this Act by the Construction Industry Training Fund (Board) Amendment Act 2018:

(a) the effectiveness of the Board in the exercise of its functions and powers;

(b) the attainment of the objects of this Act.

(3) The person appointed under subsection (1) must present to the Minister a report on the outcome of the investigation and review within 6 months after the person's appointment.

(4) The Minister must, within 12 sitting days after receipt of a report under this section, cause a copy of the report to be laid before both Houses of Parliament.

This is a review after three years of the act and replaces the redundant section 38 review provision to consider the new changes in this act. Again, it is another element of oversight and it requires the minister to appoint an independent person to conduct any investigation arising from the start of the Construction Industry Training Fund (Board) Amendment Act, giving the minister and the Department for Industry and Skills the ability to evaluate the legislative changes.

The Hon. S.G. WADE: I indicate that the government will be supporting this amendment. The amendment will require the minister to appoint an independent person to carry out an investigation and review concerning the amendments arising from the commencement of the legislative changes. That will be required to be undertaken as soon as practicable after the third anniversary. This amendment will enable the minister and the Department for Industry and Skills to evaluate the effectiveness of the legislative changes to strengthen the board composition.

It causes me to reflect on the history of this act and previous reviews. The former Labor government received a review on the act, as I understand it, in 2004, and here we are in 2019 discussing issues that were left unaddressed after that. It is important to have reviews and it is also important to read them. The former Labor government did not take the opportunity to reform this area.

I will also be interested to see whether the opposition, for the sake of consistency, is going to take the opportunity to demonise the Minister for Industry and Skills and say, 'How could they trust him to appoint an independent person?' or perhaps the argument about what is an independent person, because the invested interests in this area are so entrenched that there is no such thing as an independent person. Considering the need for this council to process this efficiently, I will not muse on those issues.

The Hon. C.M. SCRIVEN: I am quite surprised that the minister would cast such aspersions on his ministerial colleague in the other place. I had no intention of raising either of those matters in regard to this clause. I would just point out that the review to which the minister in this place is referring recommends a number of things that his government is not supporting. Unless we are going to—

The Hon. S.G. Wade: It was 15 years ago.

The Hon. C.M. SCRIVEN: One would ask why the current government is not perhaps doing their own review.

The Hon. S.G. Wade: She is trying to provoke me for a filibuster. I will not be provoked.

The ACTING CHAIR (Hon. D.G.E. Hood): Order!

The Hon. C.M. SCRIVEN: The minister objected earlier when I made a brief interjection. I will put on the record that he is making lengthy interjections—most discourteous, I would have thought. One would have thought that if the government was so keen on a review, then maybe they would have done one before introducing legislation, but what we see instead is it shows only that they will work with one particular part of the sector in this particular case and engage with them in the development of the bill but not with other parts of the sector. My question is to Mr Pangallo and it is just a brief question. Was there a particular reason you chose three years and the third anniversary for a review?

The Hon. F. PANGALLO: Thank you, the Hon. Ms Scriven. Just going by recent legislation that we have passed, it seems to be the going figure of three years. Of course, by then, who knows who will be in government. In three years' time it may well be Labor and you will have an opportunity to review the act and appoint an independent person.

The Hon. S.G. WADE: I just wonder, Mr Pangallo, whether you might hope that there might be a government action on a review within 15 years?

The Hon. F. PANGALLO: Well before that.

The Hon. T.A. FRANKS: I rise to indicate that the Greens will be supporting this amendment, as we often support review clauses. I note that the government has accepted this review clause, which is something that I am not as accustomed to in this place, and I welcome that. However, before the government gets too excited, I do note that a review done 14 or 15 years prior is actually no longer relevant to the status of the situation today. That was the Greens' contention and indeed we maintain our contention that this bill is inappropriate. We will be opposing the bill outright but we do welcome that independent review, which will be far more timely and hopefully far more independent.

The Hon. S.G. WADE: I take the point on relevance but I do not agree with the suggestion by the Hon. Ms Scriven that the government needed to do a review before it amended an act. We amend lots of acts without doing a review. I certainly welcome a post-implementation review because this is significant change and we want to make sure that we are doing the best we can by the construction industry.

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

The Hon. C.M. SCRIVEN: And, for the record, the opposition will be also supporting this amendment.

New clause inserted.

Remaining clause (8), schedule and title passed.

Bill recommitted.

Clause 4.

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

Amendment No 1 [Scriven–1]—

Page 3, after line 14—Clause 4, after its present contents (now to be designated as subclause (1)) insert:

(2) Section 5—after subsection (6) insert:

(6a) However, if—

(a) the office of a member of the Board becomes vacant before the expiry of the term of appointment specified in the member's instrument of appointment; and

(b) a person had been appointed to be the deputy of that member,

the person who had been appointed to be the deputy of the member may act as a member of the Board in respect of the vacant office—

(c) for the balance of the term of appointment referred to in paragraph (a); or

(d) until a person is appointed to the vacant office under this section,

whichever first occurs (and a reference in this Act to a member of the Board will be taken to include, unless the contrary intention appears, a reference to a person acting as a member under this subsection).

The Hon. S.G. WADE: On behalf of the government, I indicate that the government will support this amendment. This amendment ensures that deputy members' positions do not cease upon a member's position becoming vacant. The amendment will enable a deputy member to act as a member of the board in respect to the vacant office for the balance of the term of appointment or until a person is appointed to the vacant office. It is the view of the government that the amendment will facilitate the orderly conduct of the business of the board.

The Hon. F. PANGALLO: SA-Best will be supporting the amendment.

Amendment carried; clause as amended passed.

Bill reported with amendment.

Third Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (16:00): I move:

That the bill be now read a third time.

The council divided on the third reading:

Ayes 10

Noes 9

Majority 1

Third reading thus carried; bill passed.