Aquaculture (Tourism Development) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:31): I move

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted into Hansard without my reading them.

Leave granted.

I am very pleased to introduce the Aquaculture (Tourism Development) Amendment Bill 2021. This Bill will create a more efficient and effective regulatory assessment and approval process for aquaculture related tourism structures built within the State waters of an aquaculture zone established under the Aquaculture Act 2001 (the Aquaculture Act), similar to the current regulatory process for aquaculture.

Aquaculture is the fastest growing livestock industry in Australia and is expected to increase in value nationally to $2 billion by 2027 (at a 7% per annum growth rate) to meet global seafood demand. South Australia is recognised as a world leader in the ecologically sustainable development of aquaculture and has currently the only dedicated aquaculture legislation of its kind in Australia, the Aquaculture Act.

The Aquaculture Act allows the proclamation of aquaculture zone policies, which prescribe where aquaculture can occur in dedicated aquaculture zones, and also where it cannot occur in dedicated aquaculture exclusion zones. An extensive consultation and planning process is prescribed for the making of aquaculture zone policies, with twelve currently located in regional coastal areas of the State, including the Limestone Coast, Yorke Peninsula, Eyre Peninsula and the West Coast.

Aquaculture zones provide a one-stop-shop point of entry for industry to engage government through the Department of Primary Industries and Regions (PIRSA) to assess and approve aquaculture proposals with consideration of ecological sustainable development.

The extension of the one-stop-shop approach in the amendment Bill streamlines the application process for proponents by removing the requirement to separately seek development consent under the Planning, Development and Infrastructure Act 2016 (the Planning Act) from the Planning and Land Use Services Division of the Attorney General's Department (PLUS-AGD), via the State Commission Assessment Panel, and seek an authority to construct on the seabed under the Harbors and Navigation Act 1993 (the Harbors and Navigation Act) from the Transport Minister via the Department for Infrastructure and Transport (DIT). This will provide greater confidence for industry to invest and grow this valuable and much needed South Australian primary industry.

There are known limitations in the current Aquaculture Act that can be improved to further refine the legislative framework, particularly as they relate to aquaculture related tourism developments within prescribed aquaculture zones. Currently, the Aquaculture Act does not empower the Minister responsible for administration of the Aquaculture Act (the Minister) and PIRSA to assess and approve non-farming tourism infrastructure in an aquaculture zone, even when it is located on an existing aquaculture lease and adds value to the operation.

There have been recent developments of this type that have been located on or directly adjacent to an aquaculture lease and licence within an aquaculture zone. To get approval for the 'Salt Water Pavilion' in Coffin Bay, the proponents have had to seek development consent from PLUS-AGD. This is in addition to proponents separately needing to seek an authority to use the seabed from the relevant agency or Minister who has care and control over it, which is typically the Minister responsible for administration of the Harbors and Navigation Act via DIT. Proponents do not consider the current process streamlined and this is likely to create uncertainty for potential investors in these types of tourism developments, including aquaculture businesses who want to diversify their operations to further promote their product and industry.

To encourage and support innovation, investment and expansion of emerging aquaculture related tourism developments within aquaculture zones, I am introducing this Bill to amend the Aquaculture Act to enable the complete assessment and approval of applications for tourism developments that complement, promote, are of benefit to, or are otherwise directly related to aquaculture undertaken within the waters of an aquaculture zone established under it.

The proposed amendments remove the development consent requirement and alter the seabed authority requirement for aquaculture related tourism developments within aquaculture zones, and replace it with a single assessment and approval process under the Aquaculture Act administered on the Minister's behalf by PIRSA similar to that for aquaculture leases and licences. Arrangements for aquaculture related tourism developments that may be proposed for locations outside of aquaculture zones are not included in the proposed Bill and proponents for these developments would need to follow the current regulatory assessment and approvals process.

The Bill proposes that under the Aquaculture Act the Minister may approve aquaculture tourism development applications via the grant of two authorities which may contain conditions regulating the development. These are an aquaculture tourism development authorisation which provides approval for construction of a tourism development similar to development consent, and a tourism lease or tourism licence which provides approval for a tourism structure to occupy the seabed, similar to a seabed authority from the relevant agency or Minister who has care and control over it.

The conditions of any aquaculture tourism development authorisation and tourism lease or tourism licence will be similar with those imposed on current development consent, seabed authorities, and aquaculture leases and licences to the extent that they are required. This includes conditions relating to rehabilitation of the seabed, public liability insurance, indemnifying relevant Ministers and the Crown, navigational marking requirements, any rights of exclusive occupation, permitted use of the seabed, the term of a tourism lease or tourism licence, infrastructure maintenance, debris, annual fees, grounds for cancellation, and any environmental monitoring requirements.

To mitigate potential risks from aquaculture tourism development applications, the amendment Bill requires the Minister to refer conditions contemplated to the EPA for approval prior to granting an aquaculture tourism development authorisation. The concurrence of the relevant agency or Minister who has care and control over the seabed must also be sought by the Minister for consent to use the seabed prior to granting an aquaculture tourism development authorisation and a tourism lease or tourism licence. These proposed processes are consistent with current requirements under the Aquaculture Act for the grant of an aquaculture lease and corresponding aquaculture licence within aquaculture zones.

Importantly, to mitigate potential construction risks to public safety which are currently addressed by the Planning Act, the amendment Bill requires building certification. The amendment provisions require that as a mandatory condition of aquaculture tourism development authorisation, prior to any building work being undertaken, the building work must be certified by a building certifier as complying with the provisions of the Building Rules under the Planning Act. This provision was recommended by the Planning and Land Use Services Division of the Attorney General's Department (PLUS-AGD) and is the same condition required when providing development consent under the Planning Act. In addition, the amendment Bill provides the ability for the Minister to impose further conditions on any aquaculture tourism development authorisation to mitigate potential risks from a proposed tourism development. PIRSA will also review its current ecologically sustainable development risk assessment process for aquaculture licence applications in consultation with PLUS-AGD and amend it to specifically provide for the assessment for aquaculture tourism development applications.

Further, consistent with the current application assessment process under the Aquaculture Act for aquaculture licences within aquaculture zones, the amendment Bill incorporates a public notification process prior to granting an aquaculture tourism development authorisation and a tourism lease or tourism licence. This public consultation process will assist with the identification of risks associated with a proposed tourism development, including risks to public amenity.

If a proposed tourism building work application is to overlap any portion of an existing aquaculture lease or corresponding licence within an aquaculture zone, any associated tourism authorities may only be granted with the consent of these entities and any registered specified persons who hold an interest in them.

To adaptively manage the type, amount and location of future aquaculture associated tourism developments within aquaculture zones, there is already sufficient flexibility in the current Aquaculture Act for aquaculture zone policies to prescribe matters relating to aquaculture tourism structures authorised under the Act. In addition, there is the provision for the Aquaculture Regulations 2016 (the Aquaculture Regulations) to prescribe the types of tourism developments which may not be in scope or acceptable for assessment and approval under the Aquaculture Act.

The proposed amendments would allow PIRSA to provide a 'one stop shop' service to proponents, such as the service currently provided to aquaculture development proponents within aquaculture zones, to accept, assess and approve applications for aquaculture tourism developments within aquaculture zones.

Consequential amendments have also been made to incorporate decisions not to grant tourism authorisations or to fix conditions on them in statutory reviews available under the Aquaculture Act. Further changes are included to require the publishing of information relating to application and grant of aquaculture tourism authorities on the public register and to incorporate the holders of these authorities in the arrangements for death and bankruptcy and director liability.

PIRSA has consulted with the EPA, PLUS-AGD, DIT, and the Department for Environment and Water regarding the proposed amendments within the Bill.

There are no anticipated additional costs to PIRSA regarding the proposed amendments, as costs associated with the assessment of aquaculture associated tourism development applications and ongoing management of tourism leases and tourism licences will be cost recovered from proponents. This is consistent with the current process for aquaculture lease and corresponding licences under the Aquaculture Act.

Should this Bill receive royal assent and become an Act of the Parliament, regulations will be drafted to amend the Aquaculture Regulations as contemplated by the Bill.

Following proclamation of the Bill and variation regulations, the broader community and stakeholders will be notified of the changes, including the application process, through a media release, the PIRSA website, and letters to aquaculture lease and corresponding licence holders. PIRSA will then progressively review all current aquaculture zone policies and consult with industry to determine if any relevant provisions governing aquaculture associated tourism developments are required, and if so undertake the prescribed amendment process under the Aquaculture Act.

Enabling the assessment and approval process for aquaculture related tourism developments through the Aquaculture Act will create a more efficient and effective regulatory process, provide clarity to proponents and in turn create confidence to invest in these new and emerging types of developments. In enhancing the tourism experience in South Australia, the approvals under the Aquaculture Act will also foster greater social licence and community perception of the aquaculture industry and stimulate economic development and employment in our regions as well.

I commend the bill to the Council and look forward to further debate.

Explanation of Clauses

Part 1—Preliminary

1—Short title

These clauses are formal.

2—Commencement

3—Amendment provisions

Part 2—Amendment of Aquaculture Act 2001

4—Insertion of Part 7A

This clause inserts new Part 7A to provide for the Minister with responsibility for the administration of the Aquaculture Act 2001 to authorise aquaculture tourism development within an aquaculture zone if the Minister is satisfied that the relevant building work and commercial tourism activity comprising the development—

(a) will complement, promote, be of benefit to, or otherwise relate directly to aquaculture undertaken within the aquaculture zone; and

(b) can be undertaken in a manner that is ecologically sustainable; and

(c) are consistent with the objects of this Act and any relevant provisions of an applicable aquaculture policy.

Aquaculture tourism development is defined to mean building work undertaken on land underlying State waters within the area of an aquaculture zone for the purposes of undertaking a commercial tourism activity, but does not include an activity, or activity of a class, prescribed by the regulations.

The measure provides that the Planning, Development and Infrastructure Act 2016 does not apply to aquaculture tourism development.

It is proposed that the carrying out of aquaculture tourism development without an authorisation under new Part 7A will be an offence with a maximum penalty of $35,000.

It is proposed that the power of the Minister to grant an aquaculture tourism development authorisation, a tourism lease or a tourism licence in relation to certain land is subject to—

(a) if the land is vested in the Minister responsible for the administration of the Harbors and Navigation Act 1993, the requirement under section 15 of that Act for the concurrence of that Minister; and

(b) if the land is vested in any other entity, the concurrence of that other entity; and

(c) the concurrence of any other entity that may be responsible for the care, control and management of the land.

An aquaculture tourism development authorisation, a tourism lease or a tourism licence may only be granted in relation to certain land with the consent of—

(a) if the land is located within the area of an aquaculture lease—

(i) the lessee of the aquaculture lease; and

(ii) any person specified on the public register as holding an interest in the aquaculture lease; and

(b) if the land is located within the area of an aquaculture licence—

(i) the holder of the aquaculture licence; and

(ii) any person specified on the public register as holding an interest in the aquaculture licence.

An aquaculture tourism development authorisation will be subject to a condition that before any building work is undertaken, the building work be certified by a building certifier as complying with the provisions of the Building Rules to the extent that is appropriate in the circumstances. An aquaculture tourism development authorisation will also be subject to any other conditions as the Minister thinks fit. It will be an offence to contravene, or fail to comply with, a condition of an aquaculture tourism development authorisation with a maximum penalty of $10,000 applying or an expiation fee of $1,000.

Proposed section 58E provides that the Minister may, in connection with an aquaculture tourism development authorisation in an aquaculture zone, grant a lease of, or a licence over, land underlying State waters within the aquaculture zone as the Minister considers appropriate for the purposes of the aquaculture tourism development.

Proposed new Part 7A gives the Minister the power to issue a direction requiring action to be taken if a person fails to take any action required to be taken by the person under a condition of an aquaculture tourism development authorisation, a tourism lease or a tourism licence, or imposed on the cancellation of an aquaculture tourism development authorisation. A failure to comply with a notice will carry an maximum penalty of $35,000.

Proposed new Part 7A also gives the Minister power to issue a direction requiring certain remedial action to be taken if a person carries out aquaculture tourism development without authorisation. A failure to comply with a notice will carry a maximum penalty of $35,000.

5—Amendment of section 59—Reference of matters to EPA

This clause amends section 59 of the Act to include certain matters relating to aquaculture tourism development to be referred to the EPA in accordance with the existing provisions in that section.

6—Amendment of section 60—Reviews

This clause amends section 60 of the Act to add to the matters that may be subject to review in accordance with the existing provisions in that section, namely—

(a) a decision of the Minister not to grant an aquaculture tourism development authorisation, a tourism lease or a tourism licence; and

(b) a decision of the Minister fixing the conditions of an aquaculture tourism development authorisation, a tourism lease or a tourism licence.

7—Amendment of section 80—Public register

This clause amends section 80 of the Act to require certain matters relating to applications for aquaculture tourism development, and aquaculture tourism development authorisations that have been granted, to be included on the public register in accordance with the existing provisions in that section.

8—Amendment of section 82B—Death, bankruptcy etc of lessee or licensee

This clause amends section 82B of the Act to include aquaculture licences, tourism leases and tourism licences under proposed new Part 7A in the instruments that will be, by operation of the section, held by the personal representative of the lease or licence holder in the event of their death.

9—Amendment of section 88—Liability of directors

This clause amends section 88 of the Act to provide for liability for directors of corporations that commit offences against proposed new Part 7A relating to aquaculture tourism development.

10—Amendment of section 90—Evidentiary

This clause amends section 90 of the Act so that, in proceedings for an offence against this Act, an apparently genuine document purporting to be a certificate signed by the Minister certifying any of the following matters is, in the absence of proof to the contrary, proof of the matters certified:

(a) that a person named in the certificate was or was not at a specified time a responsible person for a specified aquaculture tourism development authorisation;

(b) that a person named in the certificate was or was not at a specified time the holder of a specified tourism lease or tourism licence.

Debate adjourned on motion of Hon. I.K. Hunter.