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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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NATURAL RESOURCES MANAGEMENT (REVIEW) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 22 February 2011.)

Clause 22.

The Hon. P. CAICA: I would like to make a couple of points and reinforce a couple. The amendment provides, as we know, for the regional NRM plan and the Water Allocation Plan to be comprehensively reviewed at least once during each 10-year period as distinct from the current five-year review. As I mentioned, that does not preclude plans from being reviewed and amended at any time and does not affect the requirement for each board's business plan to be revised annually.

The Water Allocation Plan forms part of the regional NRM plan and the 10-year minimum period is consistent with clauses 46 to 51 of the National Water Initiative which, of course, the deputy leader mentioned. I want to address a couple of the issues that were raised by the deputy leader. In particular, I want to reinforce that the amendment does not affect the power of a board to review. It has that power whenever it is necessary under the NRM Act, and a board can commence that process of amending a plan at any time.

The member for MacKillop stated that the South-East NRM board was obliged to review and rewrite an existing Water Allocation Plan by the end of June 2006. The NRM Act does not require a plan to be rewritten following a review. The review requirement does not include any obligation to revise, amend or change a plan. The only legislative requirement is that a review be completed within five—now proposed to be 10—years from the date of adoption and, following the review, the board determines whether it is necessary to begin the process of revising the plan.

This amendment will reduce statutory requirements for review procedures. It is consistent with the view expressed by the opposition. The point I would like to make is that what has occurred within the NRM system—I heard this when I was the agriculture minister as well—is that the statutory requirements or the growth, if you like, of the bureaucracy and bureaucratic arrangements were such that it was having an impact on programs on the ground. So this, quite clearly, is aimed at minimising the concern expressed by the opposition and others so that as many resources as possible can be freed up to deliver on-ground activities.

In regard specifically to the Water Allocation Plan in the Lower South-East, the member for MacKillop (the deputy leader) is quite aware that work has been undertaken on that, and there are some other circumstances that are being brought into the frame with respect to that. Ultimately, it is my decision to adopt—or not—a water allocation plan and, quite frankly, I think there is more work to be done in a couple of other areas before that plan is in a position to come back to me. So, it was really a bit unfair to blame the NRM board for that, and you know that, too.

Mr WILLIAMS: I feel obliged now to actually come back a little.

The CHAIR: You do not have to. Do not feel obliged.

Mr WILLIAMS: I do feel obliged, Madam Chair—compelled. If there was any misunderstanding that I was saying that it was written in the act somewhere that the NRM board had to revisit and rewrite its plan by the end of June 2006, I apologise. The reality is that, in June 2006, the pre-existing plan, a plan that we are still operating under, had come to its five-year life. So, it had already been in existence for five years. It was a 2001 plan, and it was due to be reviewed by then.

With regard to that particular NRM board, the minister is absolutely right, and I congratulate the minister and his predecessor for not having signed off on some of the plans put forward by that board, simply because the plans that board had been working on for all of these years were not compliant with the legislation that had come out of this parliament—they were ultra vires: they did not comply with the statutes of this state, and that was the problem.

This board in the South-East had been working on developing a water allocation plan. Then, in the first instance, minister, the board went to your predecessor, gave him the plan to sign off on and said, 'Oh, by the way, minister, before you can sign off on this, you have to change the legislation so that it will be compliant.' There is a section in the draft plan that goes to the compliance with the relevant legislation, and that section in the draft plan I received probably 18 months or two years ago had all the boxes ticked, but it still needed this parliament to change the legislation so that it would be compliant. I have had some trouble with that for some time, and I congratulate the minister for not signing off on the plan.

Just whilst I am here, I want to advise that the following came to my attention the other day, and I want to draw it to the attention of the committee and particular to the minister because I suspect that this is not unusual. In relation to these NRM boards, the minister talked about their resources and that, if parliament accepts this amendment, their being able to apply their resources to on-the-ground works. As luck would have it, when I was home on the weekend, minister, for some reason I was riffling through my desk at home and I came across these envelopes, five of them, all dated 11 August last, and all containing the same piece of information—important roadside winter weed information is important and it is good that is sent out to landholders.

The first one is addressed to 'Williams Estate, DG and a post office box; that is my late father, who died in 1986. The second one, 'Williams, Michael Richard'; that is me—same address and same post office box number. The third one, 'Williams, Michael Richard; same post box to the exact same name. The next one is just 'Williams', same post box. The last one, no name, just the post box. Five of them, minister. I am not arguing—please, nobody think that I am arguing that the NRM board is under-resourced. In fact, I have been arguing for some time that it is over-resourced, and it annoys me because I actually contribute greatly to those resources through my NRM levies. There are some problems, minister. I bring that little instance to the attention of the committee, because that is the sort of nonsense farmers are putting up with and are being charged levies to cover.

I did point out to the committee when we were last debating the clause that the opposition accepts this clause, and we will be supporting it in the other place as well. I have some concerns, not about the clause itself but about the way the NRM boards are failing to meet the obligations that they have been up to date—the requirement was that they did meet them. It was that failure I was trying to make the point about, minister.

The Hon. P. CAICA: I thank the deputy leader for his support for this amendment, both here and in the other place. I am sorry—and I am genuinely sorry—that your late father receives correspondence through the mail.

Mr Williams interjecting:

The Hon. P. CAICA: I don't think it is proper. The point I would make is that what you are describing to me now is not appropriate or efficient, and it is not an efficient use of their existing resources. I want their resources to be used most effectively and as efficiently as they can possibly be, which is something I know you support. I will look into that matter in terms of certain practices. This is part of the reason, of course, that we are looking at the integration, if you like, between the department and the NRM boards, that is, to make sure that work that might best be done by the department, for example, could be undertaken to free up those resources for doing what it is they do best, which is, clearly, not what you have just described to me.

Amendment carried; clause as amended passed.

Clause 23.

Mr WILLIAMS: I seek an explanation from the minister. First, I think I understand that the clause is about introducing into the act a matter which I was responsible for having introduced into a number of our statutes which would allow farming businesses to amalgamate, for the purpose of levies, notwithstanding that they had more than one property or assessment—however you describe them—as part of that business. However, because this clause is specific to outside council areas, my colleague the member for Stuart is most anxious about it and wants an explanation as to whether there is any potential for this to impact on pastoral lease, as opposed to other land titles.

The Hon. P. CAICA: The short answer is no. As has been my wont today, I will not let that short answer suffice and I will make an explanation. Of course, it mirrors what is in the Local Government Act, and I am told these subclauses, as you have identified, are meant to clarify the meaning of single farm enterprise and farmland. They are consistent with the Local Government Act. Of course, where a leaseholder is able to verify that the entire property is part of his farm—and this is meant to deal with outside and inside local council areas, to address the issue that you have raised—that would attract just the single levy rate.

Mr WILLIAMS: Can I confirm that the definition of the word 'farm' would also apply to a pastoral lease? If we had a pastoral lessor who had more than one lease, would they gain the benefit of this as well?

The Hon. P. CAICA: Yes, if it is the single farm enterprise, as I am advised.

Mr VAN HOLST PELLEKAAN: I thank the member for MacKillop for raising a couple of things. I was not sure whether or not I would be here. I think, and I trust, that the intent of this is quite clear and straightforward and helpful, but there are potentially quite a lot of complications, so I would like to ask a couple of questions just to get on the record what I expect the minister will say. The reason it is a bit complicated is because there is some freehold land outside council areas and there are some pastoral leases inside council areas. There is a range of potential complications.

My first question: is that the intent is purely about the amalgamation and no intent whatsoever to change fees, adjust fees or change any authority for the way in which fees are charged. The second thing I would just like to have clarified, please, is that the clause talks about amalgamating properties and parcels of land that are occupied by the same person. I would like to clarify that that means 'owned and operated', if you like, because it is quite common to have separate parcels of land owned by one person, family or company.

However, there might be another house on one of the separate blocks where a different family lives. It might be an employee. It might be that the house is rented out to someone else on a separate block. I want to be 100 per cent sure that the 'occupation' that is referred to here is with regard to the owner of the pieces of property, or the lessee in the case of a pastoral lease.

The third thing I would like to clarify is that I understand the definition of 'farm land' here is to do with primary production. The minister has clarified for the committee—through the question from the member for MacKillop—that that includes pastoral leases. How does that apply to pastoral leases that are not used for pastoral purposes, because, as we know, there are technically pastoral leases but they are not running stock. They might be used for tourism, mining companies might own them for the water rights or they might be for Aboriginal and cultural pursuits, or various ecological/conservation purposes. So, there is a group of pastoral leases not actually used for primary production. I would like to know how they would be dealt with.

The Hon. P. CAICA: I thank the member for Stuart for his questions. Of course, we are dealing with two aspects which, obviously, are linked under the same clause. I will just deal with them in the order in which the questions were asked. Quite clearly, it is meant to have a rateable levy (which, in essence, I am responsible for collecting), which is able to be collected in the unincorporated lands as well. So, that will apply to those pastoral leases as it will to other property that is being farmed for primary production in those other areas. It is about clarifying that.

The second question, as I understand it, is about the rateable land. My understanding, as I am advised, is that, where a collection of the levy under section 97 is to be imposed in areas outside the council areas, this amendment, as I mentioned, provides for contiguous land to be identified in separate landholdings considered as a single farm enterprise; so, they would need to be under this 'contiguous'.

They still might be part of your farming empire with bits and pieces all around the place but, for the purposes of this, it is about consolidating what historically might have been seen as being two sections of the single farming enterprise, if that makes sense. That is what that clarifies. Thirdly, for the purposes of these clauses here, it does apply specifically to farm land or land being farmed as a single enterprise and being occupied by the same person. In essence, if it is being used for another purpose that will still attract a levy but it will be a levy under a different section than this, if that makes sense to the honourable member.

Mr VAN HOLST PELLEKAAN: Just to clarify, and I think that this goes back to the first point the minister made, the effect of this clause is about the amalgamation of the properties. It is about the adjoining blocks and essentially treating them as one area, if you like. However, it has no impact on the fees that could or might be charged; is that correct?

The Hon. P. CAICA: Again, I thank the honourable member for his question. The fees are set through the plan, and this is to allow processes that clarify what is to be—not so much the total collected, because that will be determined through the plan and then subject even to an appearance before your committee if it goes beyond a certain level. So, this is about the administration perspective of what constitutes that rateable property, more so than the setting of the levy itself.

I want to clarify something, and I think it is important that I correct the record. I mentioned earlier to you, and I apologise for this, that it needed to be contiguous. As I understand, they can be parcels of land still part of what is the entire farm that do not necessarily have to be contiguous, and then still seen as being the single farm entity or farmland for the purposes of this rating.

Clause passed.

Clause 24 passed.

Clause 25.

Mr WILLIAMS: Minister, this one interests me because an issue arose during the construction of the Northern Expressway about the contractors taking water. I can fully understand and appreciate the intent of this clause where it would exempt water taken for the purposes of construction or repair of a public road in determining the quantity of water taken. In that particular instance, when the Northern Expressway was being constructed, as the shadow minister I received a number of complaints from people in the Northern Adelaide Plains, principally water users who had been under significant restrictions for some time, who were furious that the contractors involved in that construction were pumping—in their words—vast quantities of water which were not being metered, and were in no way being accounted for.

I am not suggesting that it was not a necessary use of the water and that we should not be building roads—God forbid—but I can appreciate that, in some instances, notwithstanding we should not be stopping them from this activity, I think we should be monitoring how much water is being taken. I have a concern about giving an open exemption for that activity and I wonder if you have any comments to make about why this has been put into the act, and have you considered the instances such as the construction of the Northern Expressway, which was a major project and used a considerable amount of water?

The Hon. P. CAICA: I thank the honourable member for his question and, as he is aware, and I think we all are, where an NRM water levy is based on the quantity of water taken, water used for purposes such as firefighting and drinking water for stock is required to be excluded under the relevant section of the act. Certainly, from the government's perspective, it is considered appropriate that water used for road making should also be excluded from the basis of the levy. To get to the point that was made by the honourable member, the effect of this amendment is not to remove any requirements to be authorised to take water for road making but to ensure that levies will not be charged on water taken for road making from the licence holder.

It seems to me to be particularly relevant in a prescribed water resource area, where, in some cases, water for road making is accessed from the existing licence holder's bore or dam because that is more practical than creating new bores or dams to access water in the short-term construction period. It would not be appropriate then, for the licence holder to be liable to pay a levy on the water that has been taken from their bore for road making. Of course, all water from prescribed water resources for public road making is authorised under the statewide authorisation under section 128. Specifically, I know that, when the extraction of water is coming from any bore, the quantity needs to be taken into account so that it is not having an adverse effect on that resource.

I am happy to look into this little bit further on the basis that, if I read you right and hear you right, what you are saying is that there may be circumstances like the Northern Expressway, which is a huge undertaking, that may have a greater than expected impact on that particular resource, and a consequence of that, circumstances like that, for the purpose of this exercise, should be measured and then the impact on that resource known before that water is extracted. That is essentially what you are saying. I am happy to speak to my colleague, the Minister for Transport, on this particular matter to see if we can come up with something that might be appropriate to ensure that there is a clear understanding of what, for the purpose of this exercise, that extraction will have on that resource.

Mr WILLIAMS: The Salisbury council at that stage, during that project, was willing to supply water from their recycled stormwater; there would have been a cost, I believe. They were a bit dark about the whole situation of what happened there too; so, I am pleased that you have undertaken to look into that.

Clause passed.

Clause 26 passed.

Clause 27.

Mr WILLIAMS: Again, I have a concern with this and would like an explanation of exactly what the intent here is. My concern is about the ability of this amendment to be put into practice. What we are doing is adding in the words 'an adverse effect' on the productive capacity of land. This is the definition of the word 'degradation'. The current definition provides that:

degradation of land means any change in the quality of land, or any loss of soil, that has an adverse effect on water, native vegetation or other natural resources associated with, or reliant on, land, any other aspect of the environment, or biological diversity.

Why would we want to add on to that those very words on the productive capacity of land? I am particularly concerned, because I am not too sure that the NRM boards physically have the capacity to make a determination about the productive capacity of land. I am probably as disturbed about that aspect as any other. I certainly would like an explanation from the minister as to why he is seeking this particular amendment and how he sees it working.

The Hon. P. CAICA: I could recount the time when I was kindly hosted by the member for Flinders recently and the working relationship between the local farmers in the southern region of Eyre Peninsula, and their relationship with SARDI, but also the NRM board and others, with respect to improvements that are made to the quality of the land and the increased production that comes as a result of it. It was fascinating stuff.

This amendment provides for the degradation of land to include any change in the quality of land or unreasonable soil loss that has an adverse effect on the productive capacity of that land. In the current definition a change on the quality of land or any loss of soil is not sufficient on its own to constitute degradation. It must also be established that there has been an adverse effect on water, native vegetation or other natural resources.

Certainly, in the work that has been undertaken in respect of a review of this act, it was determined that it sends a poor signal on how the soil resource is valued, but this has been improved by tying the resource to the productive capacity of the land, and that is the thrust behind it. This amendment does not give a regional NRM board the authority to take action where water availability varies on a piece of land, as the inherent productive capacity of the land does not change.

The productive capacity of the land in this instance is not connected to the availability of water, but the nature and amount of product that can be grown does vary with water availability, either rainfall or irrigation. In simple terms, this amendment provides that the definition of degradation of land now includes two possibilities: one, any change in the quality of land, or any loss of soil, that has an adverse effect on the productive capacity of the land or the capability or potential of the land to produce; or, two, any change in the quality of land, or any loss of soil, that has an adverse effect on water, native vegetation or other natural resources associated with, or reliant on, land, any other aspect of the environment or biological diversity. That is the clarification I hope you sought.

Mr WILLIAMS: I am still confused, minister. I wonder who makes the assessment about the productive capacity of the land, to be quite honest, because from time to time land use obviously changes from one land use to another, and the factors which underpin the productive capacity of the land might vary with the land use that the land has been put to. A simple case in point is land adjacent to the town of Mount Barker currently being used as farming land. It will be rezoned and it will be used to build houses on—a totally different land use. I think that is an extreme example but I fail to understand how an NRM board is going to make an assessment of the productive capacity of land.

The Hon. P. CAICA: I thank the deputy leader for his question. The NRM board cannot make that assessment independently of advice being sought. The example I used, which might not have been a very good one, was the collective way in which the production or the quality of the land on the Treloar farm was not done just by Peter but through a whole lot of very good and astute farmers working with other scientific people, but also the NRM boards working collectively.

Quite frankly, this cannot be done by the NRM board independently of the advice that it needs to seek in relation to what would indeed constitute that loss of productivity or that reduction of productivity of that land.

Clause passed.

Clauses 28 to 34 passed.

Clause 35.

Mr WILLIAMS: This clause is about carryover provisions. I know the minister would be incredibly disappointed if I did not have some questions of him regarding carryover. Section 52(1) of the principal act talks about water allocation, interstate water entitlements etc., and the transfer of them. This amendment is to try to strengthen and underpin the carryover provisions.

We have seen a very sad—for want of a better descriptor—situation in South Australia this year where irrigators on the River Murray have been told that they can carry water over. In fact, it seems that they have not been able to physically carry the water over. The amount of water in their account, which they are ostensibly using this year as carryover water, has actually come from the state's water account for this year. So, notwithstanding that they were told they would be able to carry water over from one season to the next, the water that they did not use in the previous water season—that physical volume of water—was not allowed to be carried forward in the state's water account for the next year. In a practical sense, they were not able to carry that water over at all, and the water that is in their carryover account is water that they would have otherwise received as their share of the allocation in this water year.

As luck would have it, with the improving water flows in the system, all irrigators would have otherwise received 100 per cent of their allocation in this water season. Interestingly enough, an irrigator on the River Murray who currently has a 67 per cent allocation and has carried forward, say, 50 per cent of their allocation—giving them a nominal amount of 117 per cent of their allocation—is unable to use that 17 per cent which is over their 100 per cent allocation, because not only do irrigators have a water allocation, they also have a site allocation, and their site allocation prevents them from using more than 100 per cent of their water allocation. So, we have a whole host of irrigators in South Australia at the moment and, unfortunately, the minister said that the average irrigator has 105 per cent of their allocation. That is an impossibility.

The Hon. P. Caica interjecting:

Mr WILLIAMS: Yes, an average. If the average irrigator has more than 100 per cent, the total must be more.

The Hon. P. Caica interjecting:

Mr WILLIAMS: Yes; an impossibility, minister, if you think about it. Notwithstanding that, a proportion of irrigators who have carried water over, ostensibly, and added that to their 67 per cent, have got more than 100 per cent of their allocation. They cannot use that additional portion; they physically cannot use it, yet there are other irrigators with less than 100 per cent. Some are on 67 per cent and some, obviously, have smaller portions of carryover—somewhere between 67 and 100 per cent—and obviously cannot use 100 per cent. We are all agreed that we have a problem with the carryover system. We can all see that. My question, I guess, to the minister is: in what way does this amendment solve that problem?

The Hon. P. CAICA: I thank the member for his question. I am not going to go into a longwinded response to some of the things he said, but I am extremely glad that we finally have agreement that the amount of water available to irrigators is enough. We also agree, finally, that the aggregate is fine; it is the distribution of it that creates a problem.

This amendment does provide for water allocations to include water carried over to a subsequent water year where a full allocation was not used in the relevant year. It does not mean that carryover will apply. Action needs to be taken under the provision of 35(iii) to implement carryover policy. The point I would make is that carryovers that relate to—and, to a very great extent, this is talking about the NRM board—the example that was provided by the honourable member are subject to reaching further agreement as it relates to permanent storage, and that is something that is being discussed with the upstream states. In fact, one of the issues that needs to be addressed—and it was a direction at the ministerial council meeting, and it has been for some time—is that respective schedule. So, we need to secure a permanent, if you like, place to store that water.

From there, we then need to develop the carryover arrangements that will apply. Once we have that permanent storage, it has certainly been my comment, both privately and publicly, that the agreement we would like to secure in the future is one that has this carryover in addition to existing allocations, not forming part of that following year's allocation. That is the objective, and I think it is an objective the opposition supports our pursuing. However, it is going to take the agreement of the states. We want this to be addressed sooner rather than later, so that we can implement that. Of course, it would need to be based on certain provisions that apply elsewhere where carryover is taken into account, such things as evaporation and the like. We are a little way off.

The first port of call has to be securing those permanent storage rights, and I have given that commitment to the irrigation industry, particularly the trust, to develop what would be a transparent, appropriate and proper carryover policy that will take us to what will be the new world of water management as it applies to the Murray-Darling Basin. What I am saying is that that needs to be resolved. This amendment facilitates water allocations being carried over to a subsequent year, but the amendment specifies that carryover may be authorised in a relevant water allocation plan (and that is what I was speaking about in relation to the Murray-Darling Basin), determined in a particular case or cases by the minister, and established by the minister by notice in the Gazette.

I am not going to go on about the carryover, because I hope I have answered that and answered it well. There will not be a carryover policy for next year, and I have announced that as well. I have also announced that there is a 99 per cent chance of there being a 100 per cent allocation, which is what they would all want, and that will be announced sooner rather than later, given the water resource at the moment. That does give us time to determine the longer-term or, we hope, medium-term question, about carryover as it applies to the River Murray irrigators.

Mr WILLIAMS: I am going to ask the minister to confirm what I think he has just said, and that is that we do not at this stage have access to permanent storage, and I am principally talking about the Hume and Dartmouth storages. I will check the record, but I am absolutely certain that one of the minister's predecessors, the former member for Chaffey, told this house that, when we changed the legislation and handed certain powers over to the commonwealth to allow it to proceed with the commonwealth Water Act, one of the agreed positions was that we would have access to those permanent storages. Now the minister is telling us that that agreement still has not been reached.

The Hon. P. CAICA: I apologise for any confusion there. Formal agreement for the provision of South Australia water storage rights was finally provided by the agreement on the Murray River reform 2008, which was signed by the Murray-Darling Basin Ministerial Council. That agreement endorses providing South Australia with access to upstream storage rights we did not previously have. As a result of that, two new schedules (G and H) to the Murray-Darling Basin Agreement, which detail South Australia's water storage and sharing rights respectively, are those which are currently being negotiated to provide improved security and flexibility to South Australian water users.

It is safe to say, too, that the agreement that was reached is being met or followed by a degree of tardiness, I believe, by the upstream states with respect to fulfilling the commitment that was agreed to and signed back in 2008. That is why I raised it at our most recent ministerial council meeting and it was reinforced as a matter that needs to be fixed and addressed as a matter of urgency. Quite simply, that is what is being negotiated—to provide and improve security and flexibility to South Australian water users. But what we also want, contained within that subsequently, is the ability to be able to store carryover water that can then be used the following year, if you like, that doesn't have an impact. That is another debate that we still need to have in line with what I said earlier. I know you support us having that debate and supporting that right.

Once schedules G and H are agreed, as I mentioned and I reinforce this point, a long-term, robust carryover policy will be developed to utilise the storage and sharing rights that they provide, and I will not be doing that independently of dialogue that needs to occur with, amongst others, the very good people within the member for Chaffey's area.

Mr WILLIAMS: I am still confused. The minister has told us that we established this back in 2008, I think, that we did have access, and our irrigators have been told for the last three seasons, I think, that they could carry over water. They had no way of knowing that they were not actually carrying over that water until we got to this year when they should all be enjoying 100 per cent allocation. Suddenly, they have come to the realisation that they have probably never physically been able to store that unused water and carry it forward into the next season. The government has now been caught out, and now—

The Hon. P. Caica interjecting:

Mr WILLIAMS: Don't explain that to me, minister. Explain that to the irrigators, because they think you have been caught out. Now you are saying that we have this agreement, so I am not quite sure what we have and what we do not have. You may wish to try to relieve my confusion, minister, I am not sure. The minister said that one of the things that was up for negotiation is the allowance for evaporation.

The Hon. P. CAICA: What I meant was that when we actually agree on certain arrangements for future carryover arrangements subject to the actual signing off—I apologise, Madam Chair. I will wait until the member finishes.

Mr WILLIAMS: Will the exact same arrangements apply to critical human needs water? I want a confirmation that if we have a situation where irrigators can have access to upstream storage and can lock away an unused portion of their water and carry it over into the next season, will they be treated exactly the same as, say, SA Water would be if it chose to do the same with an unused portion of its water and chose to carry it forward into the next year?

The Hon. P. CAICA: I want to clarify this as best I can. The simple fact that a formal agreement for the provision of water storage rights for South Australia was signed by the ministerial council does not necessarily mean that it is going to happen in a hurry. We had difficulty in our discussions with both Victoria and New South Wales, our upstream partner states, about fulfilling what it was they signed up to. We say they are obligated to do that, they ought to put pen to paper, and they ought to do it sooner rather than later.

In relation to carryover arrangements, my understanding was that it was always a short-term drought contingency—one that was very much welcomed, as I understand it and was told by the majority of irrigators who were able to access that storage. They were very much appreciative of that. We, naturally, had changing circumstances that created the situation that we spoke about in regard to the 67 per cent. I would make this point, too. It would depend on the circumstances that apply in relation to what water would be then carried over and whether that be critical human needs or not. I am presuming that the member is not saying that the ability to provide critical human needs water, depending on the circumstances, should be compromised in any way. I know the member is not saying that. That is critically important to the entire population of South Australia so we will not compromise that.

What I want, and I think what everyone wants, is a Murray-Darling Basin agreement that, for the majority of years—99 out of 100—is managed in such a way that everyone gets what is their entitlement in any one year. That ought to be our objective, and it ought to be the objective that we are seeking from the final development of the Murray-Darling Basin plan. So our requirement may be then to store more than what we necessarily might, or to carryover more than we necessarily might, and there still might be special circumstances, depending on the climatic conditions of the day. What we know is that, if we manage the resource in such a way, it is more sustainable than what it is at this point—or has proven to be over the last year. What I want, then, is for the majority of irrigators—and, indeed, SA Water and anyone else who has an entitlement to take water from that system—to be able to have 100 per cent of that provided 99 years out of 100. In fact, I would prefer 100 out of 100, but that might not happen because of the climatic circumstances of the day.

Mr WILLIAMS: I am not blaming the minister, and I understand that what he has just said is that we have had an in-principle agreement for access to storage, but it seems that we are still negotiating how that will work in practice, principally with—

The Hon. P. Caica: What we say is, 'Fulfil what it is that you signed for.'

Mr WILLIAMS: Let me say, minister, that my information is that one of the problems we had in South Australia—and I repeat: I am not blaming you because I do not think that you have been responsible for this—is that a lot of cheap politics has been played in this state over the recent years. Your interstate colleagues, particularly in New South Wales and Victoria, are not of a mind to go out of their way to help you or anyone in South Australia.

One of the cheap bits of politics that has been played was this nonsense of running off to the High Court about the 4 per cent cap, even though an agreement had been struck between Victoria and the commonwealth that water sold to the commonwealth government was excluded from that cap, even though the agreement was already struck that the cap would be wound back as of next year. We have still had this ongoing nonsense about a High Court challenge. We have had a number of instances where your government has claimed some small victories from that process when, indeed, there was no victory associated with that process at all. That is why the irrigators in South Australia are now being burdened with the upstream states not fulfilling that earlier agreement. They have been put in a position where your government keeps poking them in the eye, and then you walk around there and say, 'Please, can you help us?'

Well, whilst they are rubbing their sore eye they are using their other hand to make another rude gesture back to you. Unfortunately, minister (and it might be giving you a bit of heartburn because I know you are not in a comfortable position), it is costing real dollars to irrigators in South Australia, and that is the reality. There are small business operators and large business operators, particularly in the Riverland but all along the river, who are suffering today economically, and the state's economy as a whole is suffering economically because of that sort of small-minded politics being played out by your government, and that is a damn great pity.

Minister, I suspect that this will be my last question. I understand that SA Water (and it is probably in your name) holds a significant amount water which has been purchased—it might be as much as 167 gigalitres over and above your allocation this year—and that that is held in storage. Will that be treated the same as irrigators' water, or will you seek to use some device, some mechanism, to carry that over into the next water year or will that disappear also at the expiry of this water year?

The Hon. P. CAICA: I just want to make the point that the deputy leader spoke, not ad nauseam but for an extended period of time, about the politicking; and, quite frankly, that was the biggest load of politics I have heard for some time with respect to his contributions on this bill. The other point that I make is that the state makes no apologies for going in hard on behalf of South Australia, and you wouldn't expect us to do otherwise. I remind everyone that we are at the bottom end of the system, and others are at the top, and they have access to water up there.

I welcome the bipartisan approach of the opposition in this regard, and when the Murray-Darling Basin Authority plan is fully developed, the opposition needs to join with us in making sure that we not only remain the conscience of the system as a whole but that we also get an outcome that is beneficial to South Australia—because it will be beneficial to South Australia if it is dealing with the system as a whole. I look forward to the removal of that politicking, and to approaching this in a bipartisan manner.

In regard to the water that was purchased by SA Water, that is water that was purchased at the height of what was the most unprecedented drought, it is water for critical human needs and it will still be used in the future for critical human needs. With respect to it not being carried over, if we still have that water, if we haven't used it by that time, I will be making sure that that is still in reserve for critical human needs.

Clause passed.

Clause 36 to 38 passed.

Clause 39.

Mr WILLIAMS: I am really disturbed with this clause. Notwithstanding, as I indicated, I think in the second reading contribution, that the opposition will be allowing all clauses to go through here, we will certainly be seeking to disallow this particular amendment in the other place. This amendment basically changes the powers under the act to make regulations to powers to make new law, simply by giving notice in the Gazette. I think I can say that I have constantly argued in this place against the amount of regulation making powers that we give.

The parliament is the place where laws should be made. We give ministers the head powers under a number of our statutes to allow them to make regulations, which is law—a regulation is a piece of law. The parliament reserves its right to disallow regulations through the Subordinate Legislation Act and there is a process. Already that process is being abused. There is a facility within that process for a minister to make a claim that regulation should come into effect immediately.

It is only since this government has been in power that that facility is being used all the time. I think virtually for every regulation that is made by this government today, part of the process is utilised and the regulation is brought into effect immediately. That, again, is usurping the power which should be reserved for the parliament. If we want to hand over all of the power to the executive government, this is what we will do. We saw in the house only today, minister, with regard to an area of your responsibility, that the EPA, it seems, has been working on a ground water pollution issue in metropolitan Adelaide for at least 18 months, and the first time you had heard about it was last Thursday.

The Hon. P. Caica interjecting:

Mr WILLIAMS: No, I am only going on what you told the house yesterday and today. You told the house yesterday that the EPA was aware in August 2009 and that there was a pollution issue down at the old Hills Industries site, and that it then sought a further study to be done, and that a report was given to them, and that they informed you last Thursday, and you brought it to the attention of the public yesterday. That is my understanding of the order of events.

What I am trying to say, minister, is that if this parliament did not hive off so much of its power and so many of its obligations, particularly obligations which I believe should rest with the executive, you and your predecessors would have been well aware of that situation much earlier. I am amazed that the EPA did not advise the minister concerned, way back in August 2009, that there was an impending issue.

The CHAIR: Sorry, member for MacKillop, just to indulge me for a moment, what precisely does the argument about 2009 refer to in clause 39 and the 13 subclauses involved?

Mr WILLIAMS: It is a very current example of what happens when the parliament gives up its powers and transfers them to the bureaucracy. It is a very current example of what happens. Madam Chair, it breaks down that chain of accountability. We are part of what is called responsible government. We are called responsible government because the executive arm of government is responsible to this parliament, and this parliament, through each one of us, is responsible to our constituents. That is the way the Westminster system works. This particular clause—

The CHAIR: Thank you, member for MacKillop. I am familiar with the way it works, and I see where you are going; however, I think it is a very long bow to draw.


[Sitting extended beyond 17:00 on motion of Hon. P. Caica]


Mr WILLIAMS: This is a matter which I think I have consistently raised during the third reading debate on many bills. The amount of regulating-making power that we put into our statutes disturbs me, because I think it is an abuse of the parliament. It is abused by ministers regularly, particularly, as I was saying a moment ago, using the process under the Subordinate Legislation Act to bring regulations into effect immediately. That was never the design of that piece of legislation and it overrides the right of the parliament to review regulations.

Now we have before us an amendment which would propose to go a step further, where the executive would seek to not have these powers to make regulations, but to take the next step and simply have a power to make new laws by putting a notice in the Gazette. That is what this amendment is asking the parliament to do. It is asking the parliament to give the executive, an executive which already abuses its existing powers to make regulations, the power to make new laws simply by putting a notice in the Gazette. It takes away any ability of the parliament to review that new law and I do not think that is what we are here to do. I think we are here to maintain that chain of accountability between the laws that are made and the people who those laws impact on, namely our constituents.

The Hon. P. CAICA: Again, I do acknowledge that this is an issue that has been raised previously by the member. Again, I would say that to a very great extent he is politicking in the way in which he delivers that, but that is his desire to do so.

An honourable member interjecting:

The Hon. P. CAICA: He is indeed, but there is a time for everything in politics.

Ms Chapman: Here, in the parliament.

The Hon. P. CAICA: But he ought to just get the facts right; that is what I am saying. This series of amendments provides for water conservation measures to be established, as was mentioned, by notice in the Gazette rather than by regulation.

Water restrictions that apply only to reticulated suppliers, for example SA Water, are imposed by gazettal under the Waterworks Act 1932, at any rate. I acknowledge your philosophical or ideological bent that that is inappropriate, but that is what exists at this point in time; and the requirement to make regulations, in my view, limits the capacity to change water conservation measures rapidly and, in particular, as the resource conditions change.

What I will tell you, and I think you know this, is that from time to time it is said that the bureaucracy of various levels of government is not the speediest way by which action normally occurs. It can also be said that parliament itself is not necessarily a way by which matters are resolved in a timely fashion or, indeed, resolved at all.

What I am saying here is that the ability to be able to impose restrictions under the gazettal notice, which already exists under the Waterworks Act 1932, is proposed here because to do otherwise, through regulation, limits the capacity to change water conservation measures readily as resource conditions change and we adapt to what is required under those changing circumstances. It also limits the capacity for consistency of water conservation measures and water restrictions; the latter being adjusted far more quickly.

It is a lot more difficult to monitor compliance if water conservation measures and water restriction requirements are different; and the introduction of urgent water conservation measures would, I think, be more immediately progressed by utilising the Gazette rather than regulation, and will provide consistent measures across both acts.

Mr WILLIAMS: Might I make two points. The first is that we see the growth of legislation in an incremental way and I do not think it is a viable reason to put something into a statute because it is in another statute, without asking ourselves: is it necessary in that statute, and even if the answer to that is yes, is it necessary in this statute?

I think we have imposed incredible restrictions on our constituencies by this incremental acceptance that, because it has gone through the parliament in one act, that is reason enough to have it put it in every other act. So I make that point.

The other point I make is that I have already pointed out that under the Subordinate Legislation Act there is provision for a minister to make a regulation and to have it apply immediately. I simply do not accept that a minister can make a gazettal notice change to the law any more quickly than the minister could achieve the same end through a regulation and using the provisions of the Subordinate Legislation Act appropriately. I do not accept that that is an issue. What I do know is that, if we accept this amendment, there is no opportunity for redress. There is no opportunity for the parliament to have a look at the change of the law; we are stuck with it. That, in my opinion, would be a bad way to go.

The Hon. P. CAICA: I thank the deputy leader for his comments, and I will be very brief. To me, it is very sound for it to occur this way, that is, via a gazettal rather than by regulation. It is cleaner, more efficient and far more practical, and that is why it has been proposed. However, I will look at how the debate occurs in the upper house knowing full well that this is my position at this point in time: that it is appropriate, otherwise I would not be proposing it. However, I am happy to have a look at it if it means that we can go forward.

Clause passed.

Remaining clauses (40 to 46) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. CAICA (Colton—Minister for Environment and Conservation, Minister for the River Murray, Minister for Water) (17:06): I move:

That this bill be now read a third time.

Mr VENNING (Schubert) (17:07): I want to take this opportunity to have a say before we close the book on this legislation. I was not that active during the course of this amendment bill, but I want to have a say now. As this bill goes from this house to the other, certainly consideration should be made.

The original debate—which I have read just recently—was in March 2004; in fact, it finished at two o'clock in the morning on April Fools' Day, and we wonder why this bill was not properly constructed. It was agreed during the debate on the clauses—and I followed that one right through, as did the previous member for Stuart—that the minister (of course, it was minister Hill at the time) would liaise with members, particularly the then member, the Hon. Graham Gunn, and others, to revise the powers of NRM officers, but it never happened. I understand that this part is not considered in this amendment bill, but there is no reason why, while this bill is open for discussion, we cannot move amendments between the houses, or in the other house, to now add or change some of the things that were never addressed back then.

Time has proven that much of the concern raised during the debate all those years ago has come about, and the government now sees fit to introduce the NRM amendment legislation to address the problems that we (the opposition) said were going to happen. We need to understand that we started legislating on an organisation that was working extremely well. Why the heck did we ever go there? Why did we need to mess with something that was working well? What we have now is a bloody mess, an expensive mess, where people are no longer with us and where the cooperation is not there. It is a pretty sad day, indeed. I want to particularly address the powers of officers. I know that the minister will tell me that this is not in this amendment bill. It is not, but it can be because the bill is open for discussion and amendment. The power of the officers has been in the news. We need to amend chapter 3, part 6, section 69 of the act, specifically subsection (1) which currently provides:

An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this act, at any reasonable time—

We should move an amendment to delete the words, 'at any reasonable time' and insert—this is up to somebody else—'after giving 48 hours' notice to the person(s) under investigation.' The reason for the visit should also have to be stated and a directive given as to why documentation is required to be viewed or seized.

I also believe we should move an amendment to disallow an NRM officer from being able to enter a property without a warrant. I suggest we move an amendment to section 69(1)(d) that reads: After the word 'magistrate', delete the words 'or in circumstances in which the authorised officer reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on, any place or vehicle'. Also, I believe the NRM council needs a better balance. I believe it is top heavy with theorists and light on practitioners. Why can't we have, for example, stock agents represented on the council, as well as a direct representative from pastoralists, because we do not have that. I realise that we do have SAFF representation on this committee already, but I believe we need to have representation from specific areas.

I am most concerned that, over the years, we have not addressed some of the real nubs of this problem. When you pick up the original act, you will see that it is incredibly bad legislation, particularly section 69(1)(d). How did we allow this to go through the parliament? It provides:

An authorised officer may, as may reasonably be required in connection with the administration, operation or enforcement of this act, at any reasonable time...

(d) with the authority of a warrant issued by a magistrate—

and cop this—

or in circumstances in which the authorised officer reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on, any place or vehicle;

I cannot believe you could write legislation that says 'authorised officer reasonably believes'. What sort of accountability is that? What protection is afforded to our constituents against an over-zealous officer? There are two open-ended judgments there: first, the officer has to reasonably believe; and, secondly, what is reasonable force? It is up to the officer who is standing there to make that judgment. We have seen some pretty horrific incidences, and you wonder why we have the hostility out there we have. This legislation did not need to be written like this.

The Hon. P. Caica interjecting:

Mr VENNING: I am just saying to the minister—

The Hon. P. Caica interjecting:

Mr VENNING: There are lots of other different—

The Hon. P. Caica: Give them to me?

Mr VENNING: There are other ones, too—a lot of them. We should not have officers with that power. It should not have been written. The act would still work really positively, without having that there. If they give 48-hours notice, you will still get your man if you need to get him, or her. Without any further ado, I make those comments. All I can say is that I cannot understand why in this parliament—and I have been here a little while now—do we introduce laws in relation to a body that was working extremely well? And it was. We had a very good volunteer involvement. It was a low-cost operation and extremely effective and, most importantly, the stakeholders (the landowners on the land) felt they got good service. So, what is happening now? We have built a massive bureaucracy.

I told the minister at the time this would happen—not this minister; I do not blame him. His chief executive was a fellow called Mr Wicks, who happens to be my constituent. I said at the time, 'You are just going to build a massive bureaucracy,' and that is what we have done. Not only that, we have cost-shifted the cost away from state government onto the landowners, through the levies. Even worse, we are getting a lot poorer service for that. I say that guardedly. It is easy to stand here, as the minister would say, and slag public servants. I do not do that. A lot of these public servants are my friends, and I worked with them in my previous vocation in these areas of landcare—animal and plant control, vertebrate pests; I was a regional chairman. I am sure that local government will tell you that no way are we getting the service we used to get, and we are paying about 10 times more for it, and we do not have that good feel that was going.

Landcare was being driven by the practitioners back then. Now I believe it is being more shoved down their throat by the bureaucracy, laws, legislation and officers, and I think that is very regrettable. This is a movement I could be accused of beginning probably 23 or 24 years ago by putting these groups together, and I never intended it to finish like this. It should have been done gradually, as we were doing, one at a time, keeping the costs where they were, with the three levels of government sharing those costs and not having one level of government shoving it over onto someone else, as has happened here. I feel very much for local government and, indeed, the landowners because, through the levies, they are now paying a huge amount of money.

So I regret that, and it is really annoying to say, 'Well I told you so.' In this instance I do not want to do that. I just wish we could fix this. I plead to the next government, when the Liberals win the election in 2014, that one of the first things they do is address this. The member for Stuart will be here and the member for Flinders will be here. I do not know whether you can reinvent this—I doubt whether you can—but, surely, you have to put ownership of this back with the people it affects—that is, the landowners, the people who love and respect their land—and let them make the decisions themselves rather than shoving it down their throats. I certainly hope that the upper house members—and I have been fairly judgemental of them over the years—are able to address these matters so that the legislation can be a lot more user friendly.

The Hon. P. CAICA (Colton—Minister for Environment and Conservation, Minister for the River Murray, Minister for Water) (17:16): I feel inclined to address the issues that were raised by the member for Schubert, but the fact is that he acknowledged himself that he did not make much of a contribution during the debate so it is probably inappropriate for me to address the issues he raised during his third reading contribution.

I make this point. If he has some examples of the heavy-handed work that is being asserted by some NRM officers, bring it to my attention. I was on the West Coast last week and what impressed me was the working relationship that exists between NRM officers, farmers and other members of the community in what needs to be the next evolutionary process in natural resource management, and that is whole-of-landscape management. I will take that up with my very good friend the member for Schubert at a later date.

I want to thank all members who participated in the debate. I particularly want to thank the member for MacKillop, who undertook what I believe to be a very thorough analysis of the bill—sometimes, as I said, sprinkled with politicking, but that is the nature of the business we are in. I said at the beginning that this bill is fundamental in making the operation of the Natural Resources Management Act 2004 more effective and more efficient, thereby ensuring that South Australia is well equipped to meet the future challenges in natural resources management that I flagged just a moment ago.

I particularly look forward (and I do not know whether it is going to come, given the comments of the member for Schubert) to bipartisan support for the passage of this legislation in the other place and through the process. I thank members for the way in which they have worked with me to progress the bill. I gave the house a number of undertakings in relation to consideration of further amendments—certainly, to give consideration to some issues—and I will go through that process as quickly as possible at the appropriate time.

I also take this opportunity to sincerely thank the officers of my departments—the Department of Environment and Natural Resources and the Department for Water—and from my office who assisted me in this process. I also say thank you for the valuable input of parliamentary counsel, in particular, Richard Dennis and Mark Herbst, who have supported the processes in here. Finally, I thank all members again for their contribution to the debate and the staff who have helped us through this process. Again, I reinforce that I look forward to ongoing bipartisan support for this bill.

Bill read a third time and passed.


At 17:20 the house adjourned until Tuesday 8 March 2011 at 11:00.


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