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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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ENVIRONMENT PROTECTION (BOARD OF AUTHORITY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 2 April 2008. Page 2494.)

Mr GOLDSWORTHY (Kavel) (16:45): I indicate that I am the lead speaker for the opposition on this bill. I do not anticipate holding up the house unnecessarily on this part of the legislative process. I certainly do not intend to speak at length. Some of our upper house colleagues have experienced that over the past two or three weeks when two members spoke for a total of 12 hours in their contributions on another important piece of legislation which the parliament has had to deal with.

The proposal in this legislation is to separate the roles of the chief executive and the presiding member of the board of the Environment Protection Authority. I am aware that there is a bit of history in relation to this issue. Some five years ago, when the restructure of the Environment Protection Agency and the Environment Protection Authority took place, it was the government's decision to allow the chief executive and the presiding member of the board to be one and the same person. I understand that at the time there was strong opposition to that initiative from the state Liberal Party.

We all have 20/20 vision in hindsight. In her second reading explanation, the Minister for Environment and Conservation admitted that the arrangement is not ideal. Indeed, it is not ideal. The way in which our constitution is structured in this state and right across the nation is that what we call the separation of powers is paramount to the way in which the government operates.

The Hon. J.D. Hill interjecting:

Mr GOLDSWORTHY: The minister protests at my making that statement. I will draw an analogy and make a comparison. The minister might protest about it, but the way in which our constitution is structured is that parliaments around the country make laws but another administration—the judiciary, the criminal justice system, and the like—manages and administers the law.

The way in which the government structured this situation five or six years ago is that a particular person is sitting as chairman of the board, making policy and decisions on the direction the authority should go, and that same person is sitting in another position administering and managing that policy. There is a similarity with a member of parliament making the law and then administering the law. It would be absolutely outrageous for that situation to be proposed in this country. In some countries there is a blurring of the separation of the powers. Allegedly, corruption creeps into the political/judicial system.

One of the fundamental principles of our constitution is that we do not have a blurring of those lines. One can compare that situation with the way in which the government structured these roles about five years ago. The minister has admitted that the situation is not ideal. When a minister says that something is not ideal one knows it is extremely bad; it is a bad situation. If the minister admits it is not ideal, it supports and vindicates the position that the Liberal opposition took five years ago in opposing this measure.

I want to comment on the immediate past chief executive, Dr Paul Vogel. By and large, my experience suggests that he was a good chief executive. I make those comments as a result of personal dealings with him in relation to issues that came to the fore in the electorate of Kavel. I can recall a couple of examples. One of the councils had a problem with the licensing of a waste water treatment plant. I can recall that legal action was to be taken in relation to its not meeting a particular time line for some works to be completed. I spoke to Dr Vogel about that issue and he resolved it. He did a very good job, and I was most grateful for his work in relation to that issue. Lengthy and expensive legal proceedings were averted by Dr Vogel's actions.

Another matter for which I took representation from the community to the current Minister for Health, the then minister for environment and conservation, dealt with a private primary school in my electorate that was having issues with some land that it had purchased which was a contaminated site. The remedial work required to mitigate that contamination was going to be extraordinarily expensive. However, I met with the minister, and we went back to the EPA, and another option was put forward concerning measures for the remediation of this site. It was still expensive, but nowhere near as expensive as the initial proposal.

The school was particularly pleased with that outcome. Now, there are some new tennis and netball courts, a new playing area has been established at the school, and they are very pleased with the outcome of my representation and with the minister's assistance and that of the EPA. They are positive outcomes, but we also hear some particularly negative outcomes when the community and landholders and the like engage with the EPA.

I remember when the board members of the EPA came to Parliament House and heard a number of issues raised by members of parliament. It was a big shock. It came as a big surprise and a big shock. Members of parliament made remarks and comments to the board about how the authority was working, delivering services and dealing with the public and the issues that were well and truly to the fore in the community. I think they were really quite surprised, and they went back and had a good look at how they operate.

By and large, from the people in my electorate who talk to me about their dealings with the EPA, I think the attitude of the EPA has changed to a degree. It looks at matters (development and the like) in a more proactive, positive and can-do manner. It is prepared to work with industry and developers to meet some of the requirements.

As I said, it has been my experience that, by and large, the EPA has changed its attitude. Early in my parliamentary career, probably in the first year in 2002-03, I had a meeting with an EPA officer about a particular matter on site, and there was no suggestion from that person about how we could overcome the problem. I made a suggestion and the response was, 'Oh, that would completely change things; that would completely change our outlook.' No assistance was given by that person in relation to the issue that we were dealing with at the time. Recently, the feedback that I have received from the community is that the EPA's attitude has changed, and that is obviously positive.

I would like to raise one other point about the replacement of the chief executive following Dr Vogel's resignation. It is my understanding that Dr Vogel gave notice in August last year that he was going to resign, and he left the position in November. The position has been back-filled, basically, since that time, and I understand that a replacement has not been appointed. November to June is seven or eight months. For that position to be back-filled by another senior government public service officer is just stretching things too thinly.

I understand that Mr Alan Holmes has been the acting chief executive. He has a whole raft of other responsibilities to take care of. To expect that person to manage his existing responsibilities and also keep a close eye on what is happening in the EPA is spreading resources far too thinly. I would have thought that there would be somebody somewhere in Australia—20 million-plus people; big public services right around. We have wall-to-wall Labor. We know what Labor is about—big governments—so there are plenty of bureaucrats. I would have thought that it would not have been terribly difficult to find a replacement for Dr Vogel. But, no, not even eight months down the track. Maybe the government might have to look at the retired ranks of Liberal members. We have seen the government—

Mr Bignell interjecting:

Mr GOLDSWORTHY: I don't know how Gunny would go heading up the EPA; it would be interesting. The government has engaged the services of Hon. Dean Brown, a very successful past Liberal premier, in relation to water-related matters. The Hon. David Wotton took up a role offered in relation to natural resource management. I understand that Mal Brough, a past federal Aboriginal affairs minister, was recently asked to go into the APY lands to assist—

Mr Bignell interjecting:

Mr GOLDSWORTHY: No; the senior members of the Aboriginal community requested that his services be engaged. It is pretty obvious that the government is struggling to find, from its own resources, people of any quality to fill these positions, and there are reasons for that, but I am not necessarily going to explore those this afternoon. The point I want to make is that, if there are important jobs to be done, the government looks to past Liberal members and ministers to help it to solve its problems, because the government does not have anyone within its own ranks to meet those demands.

As I said at the outset, the proposal is to separate the roles of the chief executive and the presiding member of the board. Under the new arrangements, the bill will remove the chief executive as a board member and as presiding member, but that person will continue to sit in on board meetings but as a non-voting member, and they will be able to provide policy advice to the board. I think that is the correct structure, not the same person holding those two positions. As has already been indicated in the other place, the opposition is prepared to support the legislation.

The Hon. I.F. EVANS (Davenport) (17:03): As a former environment minister, I want to make some comments on this bill. This bill comes before the house at the government's discretion because the government is admitting to the house that the decision it took four or five years ago to combine the positions of chief executive of the EPA with the chair of the board was wrong. The opposition at the time argued the case that what the government was doing would put that person in a position of conflict. The reason that person is in a position of conflict is that, as chairman of the board and as chief executive, they perform two roles.

The chairman of the board is the chairman of the group that is the policy setter; the chief executive is the policy administrator. At the end of the day, it is the policy administrator's role to administer the policy, not set the policy. So, there is a clear conflict. The Liberal Party has for many years taken the view that those roles should be split, and we have been fairly consistent in the view that, when these positions come up, they should be split.

The government, of course, said, 'Don't worry; there is no conflict. This won't cause a problem; this will work.' As my learned colleague the member for Kavel says, Paul Vogel, who I think did a good job as head of the EPA, gave notice 10 months ago that he was leaving, and the government has not filled the position. I suggest to the house that one of the reasons the government cannot fill the position is that the applicants are saying to the government, 'Hello! You've got a conflict in your act.' So, the government is bringing in this bill now, tail between its legs, to correct a conflict of its own making. The opposition will support this bill, because it has been our longstanding policy on this issue.

The second issue I want to raise is the issue of not having a chief executive. The government has not had a chief executive for 10 months. I appointed Allan Holmes as head of DEH, and he is the second-longest serving executive in government, as we speak. Jim Wright is the only person who served longer than Allan Holmes. The other former minister for the environment in the house (the member for Kaurna) acknowledges that and nods. It is fair to say that Mr Holmes does a good job in DEH, but we know that the government's view is that the role of chief executive of DEH should not be combined with the chief executive role of the Environment Protection Authority, because there are conflicts.

When the Environment Protection Authority puts out a policy for consultation, the Department for Environment and Heritage signs a submission to the EPA about what the Department for Environment and Heritage thinks about the EPA's policy. Mr Holmes has been put in the unfortunate position of having to sign memos to himself—of making submissions to himself—and, of course, that naturally puts him in a position of conflict. When he sits as chief executive of the EPA, does he argue his case on behalf of his agency, or does he argue the case on behalf of the EPA? There is a clear conflict. Why the government put Mr Holmes in that position is beyond me when there are lots of other chief executives they could have picked without that inherent conflict. However, the reality is that there is a conflict, and it should be fixed.

I think it is appalling that the government has taken 10 months to fill the senior position in what is the most powerful watchdog in this state, namely, the EPA. In saying that, can I make it absolutely crystal clear that I have no criticism of Allan Holmes or his performance. I am purely criticising the position the government has placed him in.

The government was well aware of this conflict. It was this government that came to the house and said that it would make the independent EPA even more independent by not letting it use staff of DEH because there was a conflict. Other staff of DEH were answerable to the management of DEH or the management of the EPA, and it was this government that came in and said, 'There's this massive conflict here.'

Then as soon as Paul Vogel leaves, what does the government do? It recreates the conflict at the most senior level. So the minister for the environment, I think, is absolutely out of her depth and out of touch in my view in the way she is managing that agency. It is an absolute nonsense to suggest that the public servants cannot be in DEH and service the EPA and then, at the very same time, argue that the chief executive of DEH can service the EPA.

There is no consistency in that argument. The government has looked around the Public Service and said, 'Who knows something about environment? I know: the head of DEH' who actually (from memory) might have been on the board once before in the very early days. I might be wrong there.

The Hon. J.D. Hill interjecting:

The Hon. I.F. EVANS: All the way through? So they plonk him into that position. There we go.

The other issue I raise is why we are changing the sections relating to administrative units. I am not convinced about these changes, and I do not understand why they are being made. Under section 14, 'Powers of authority', the government gets the opportunity to use the administrative unit of the Public Service if the chief executive of the EPA is declared under the Public Sector Management Act to have the powers and functions of the chief executive of the admin unit.

So that is the chief executive of the current act. It restricts it to the chief executive of the EPA. This new legislation broadens it. The bill provides that the authority can make use of the services of an administrative unit's employees and its facilities if the minister agrees—that is any administrative unit. So the EPA board can go to any administrative unit and ask to use its employees.

It was only four years ago that that was a conflict. The board can do that. Clause 6 of this bill, which relates to section 14A of the act, essentially provides that, if the authority does make use of the administrative unit employees, and the minister of that administrative unit agrees, then that person (the CE of that agency) becomes the chief executive of the EPA. I quote: 'The person for the time being holding or acting in the position of chief executive of that administrative unit will be taken to be the chief executive' of the EPA.

So on my reading of clause 6 (new section 14A of the act) potentially, any chief executive in the Public Service whose administrative unit is used to service the board of the EPA can be declared the chief executive of the EPA. I do not understand why we are doing that. Maybe the minister can explain that to me.

The last issue I wish to touch on is the issue of the downgrading of the round table conference. The last clause of the bill (clause 9) makes a very simple amendment. It provides essentially that the chief executive will no longer have to chair the round table conference. This is a big burden for the chief executive. They actually have to go out and meet the public and sit through a day of consultation with the public about environmental protection matters.

What they are doing here is duck-shoving that responsibility to someone else within the agency. My experience is that it does not hurt the chief executive to have to sit through a full day of public consultation with all the various groups (the Farmers' Federation, KESAB and all the other groups), because it is a very good sounding-board, and it protects the minister, because the chief executive gets to hear the problems first-hand.

Depending on whom you believe, EPA stands for 'every problem available' if you have a negative view of the EPA, or 'every possible assistance' if you have a positive view of the EPA. My experience of the EPA is that it is generally full of good officers administering the laws that the parliament gives them. If the parliament or the politicians are not happy with the law, then draft a private member's bill or draft a bill and change the law and mount your argument.

I have sat in this place for 15 years and listened to people come in and criticise the department for the environment and the EPA on a pretty consistent basis. Some bring in their private members' legislation and others just seek to criticise without seeking to improve. My view is very simple: if you are not happy with the role of the agency and what it does or if you are not happy with the law, then change the law.

My experience of the EPA officers is that, like all policemen, they are caught between the devil and the deep blue sea. They have to administer the law and, ultimately, policing authorities are rarely popular. My experience of the EPA is that, on balance, it does a reasonably good job across the whole state. I think there are some issues structurally with the workforce in the EPA. There are so many people acting, it could be the State Opera at the moment: everyone in there seems to be in an acting position, and as a result no-one will make a decision. That frustrates business but, again, I do not think that is the agency's fault. Ultimately it is a government matter to administer the workforce and get them into permanent positions and give them the authority to make the decisions that need to be made.

They are my comments on the bill. I think we have gone full circle. I think we are trying to correct a problem of the government's making, and I will be particularly interested in why the minister has chosen to introduce clause 6 which affects the administrative unit and in who ends up being chief executive of the agency. If the minister can answer that for me, we may not need to go into committee.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (17:15): We may have to go into committee because I am not sure whether I can answer that question. I will address some of the general issues. I do thank the opposition for its support of the legislation—I understand that is the case. I took on board some of the issues made by members opposite. There is a certain amount of gloating on the part of the opposition because, as a couple of members said, this is the position the opposition was putting on the last occasion this was raised.

With the effluxion of time, it has been possible for government to judge the way the system was working. I think there were merits in the system that we introduced some time ago, but there was a view that the arrangements that were in place did put the CE, who was also the chair, in an invidious position at times because of the potential conflicts. The reason for making the arrangements that we and I made as the then minister was to create a CE and chair of the EPA who could actually act. I think one of the frustrations under the former arrangements led to the arrangements we put in place. However, time goes on and people have different views about how these matters should be arranged.

The issue is that we need to get the legislation through before we appoint a new CE, so they know what arrangements are in place. I do acknowledge the outstanding work done by Dr Paul Vogel. The member for Davenport acknowledged that as well and I think other members may have. He did do the job in a very fair and honest way. Mr Allan Holmes is acting in the position. I think that he has been on the board the entire time we have been in government and he may have been on the board in the former government's time as well. The reason for asking him to do it was that he was very knowledgeable about the organisation. I am confident that, once this legislation has gone through, the appointment can be made.

In relation to the matter about the administrative arrangements, as I understand it, now that the CE and the chair will be different people, it is appropriate that the administrative arrangements for the CE are common with the arrangements for all other CEs in the state; that is, they are appointed generally and then they are appointed to a particular organisation. That is the way, for example, the health CE is appointed. I think they are appointed by contract to the Premier, from memory. I think the arrangements were put in place so that all CEs are now responsible for the whole of government policy, not just the bit which is in their division. It is an attempt to modernise the Public Service generally so that all the chief executives are responsible for the broader objectives that are set out in the State Strategic Plan, for example. This brings this in line with those arrangements.

A board will be responsible for the broader policy and strategies and so on, so that will maintain the independence. As I understand it, the officers who work within the EPA are public servants and subject to the Public Service act generally, so it brings this particular officer in line with the arrangements that apply to all the other officers. I do not think I can add much more. I hope that explains the situation. Once again, I thank members for their contributions and I place on the record my thanks to the public servants and parliamentary counsel for their assistance with this bill.

Bill read a second time.

Third Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (17:21): I move:

That this bill be now read a third time.

The Hon. I.F. EVANS (Davenport) (17:21): The minister can take this on notice and send it to me in due course rather than hold up the house because, at the end of the day, the bill will get through and the opposition generally supports the bill. With due respect to the officers giving the advice, I think that new clause 6 (which deletes and then introduces a new section 14A in the act) allows DEH to provide the administrative support to the Environment Protection Authority, if the minister so wishes.

As the minister handling the bill knows, that is the exact provision that was changed under his reign as the environment minister so that that could not happen. While it is not directly written in the act that it shall be DEH, it can be any administrative unit if the minister agrees. It does open it up for a government, without the parliament's approval, to go against a decision made under a previous act to separate the EPA staff from DEH staff.

I think that, while it does not directly create conflict, certainly it creates the opportunity for a future minister to reintroduce the way this was administered five years ago with the sharing of administrative units between the EPA and the DEH. The minister can send me a note and just clarify that, or, if I still have concerns when I get the note, I can ring the officers and get a more formal briefing.

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (17:25): Rather than get this information in an indirect way, I will get a note to the honourable member and arrange a briefing.

Bill read a third time and passed.

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