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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-04-07 Daily Xml
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STATUTES AMENDMENT (PERSONAL PROPERTY SECURITIES) BILL

Final Stages

Consideration in committee of the Legislative Council's amendment.

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment be agreed to.

In relation to this particular matter, there has been, as we know, a proposed amendment in the other place. I rise to advise members of this house that the amendment is not opposed. Although section 6(4) of the Personal Property Securities (Commonwealth Powers) Act 2009 provides for the state to refer power to the commonwealth over security interests in transferrable water rights, this was not part of the initial reference. The water subgroup of the COAG Working Group on Climate Change and Water agreed that, to avoid inconsistencies between the water registries and the proposed national PPS Register, security interests in water rights should be excluded from the PPS Register. Security interests are only one small part of the information contained on the register, but they are integral to it.

Given that nationally consistent registers are being established as a part of the National Water Initiative, it is most unlikely that states will commence section 6(4) of the referral act and, even if water rights were referred, states would still be able to exclude water licences from the operation of the PPS act.

The proposed amendment will not affect the scheme or the current arrangements for developing the South Australian water register. However, I note that the Department for Water was not consulted on this proposed amendment. The Attorney-General's Department was the coordinating agency for this bill and each of the amendments was developed and drafted in close consultation with and on instructions from the relevant departments so that they could properly consider the legal and policy implications of those amendments.

Ms CHAPMAN: I indicate that, on behalf the opposition, I welcome the government's decision to accept the amendment from another place. Members may recall that, during the course of the primary debate on this matter in this house, the government moved an amendment which was substantially to do two things to the bill. The first was to have a catch-all clause, which we acceded to, and the second was to deal with the issue of water, in particular that which may come to pass under the NRM Act 2004, which is an important piece of legislation in this state. I and others in another place have raised questions about the introduction of any water entitlements, rights, licences, consequential levies, and the like when there had been such a history in respect of what should be within the definition of personal property and therefore that that should be excluded.

Personal property specifically does not include currently, as a matter of law, land, water or fixtures. There has been a lot of debate over a long time about whether there should be some change to that. There has been very good reason why, in my view, water and fixtures have remained excluded from any definition of personal property. In any event, in this state, some rather unique legislation has developed and the opportunity for governments of the day to deal with levies, which I think is pertinent to this debate.

In another place an amendment was moved to ensure that water management or authorisation is not personal property for the purposes of the Personal Property Securities Act 2009, and that is a specific amendment to the Natural Resources Management Act 2004. We strongly support that and welcome it, and I thank the government for its agreement. It does give me the opportunity to acknowledge the appointment of Professor Chris Daniels as the new chair of the Adelaide and Mount Lofty Natural Resources Management Board.

I have had the opportunity, with the Minister for Environment and Conservation, to meet Professor Daniels. I have had the opportunity, in the past, to listen to him speak and I understand he has considerable experience in some of the areas, which I am sure will stand him in good stead as the new chair. I am sure he will be pleased to know that I have since located his publications, Adelaide: Nature of a City and Adelaide: Water of a City (more recently), to which he and other academics have made contributions. They have produced some rather outstanding publications, as a summary of these two important topics. I therefore take the opportunity to acknowledge his summary in respect of the area that we are looking at. He identifies in his publication, Adelaide: Water of a City, the history and current application of the Natural Resources Management Act 2004 and how the state NRM plan had been launched in February 2006. Under that, eight NRM regions operate. He is now the chair of a board which oversees an area in which some one million South Australians live. He says in his book:

Within the Adelaide and Mount Lofty Ranges region there are five 'prescribed areas' for water resources management: Western Mount Lofty Ranges, McLaren Vale Prescribed Wells area, Northern Adelaide Plains Prescribed Wells area, Barossa Prescribed Water Resources area, and Central Adelaide Prescribed Wells area. Where a water resource is prescribed, the NRM Act requires that a water allocation plan be prepared (some of the plans were established under the Water Resources Act 1997 and have been adapted under transition arrangements to the NRM Act). Once completed, WAPs became government policy. Licensed users are limited in the volume of water they may take and use from a prescribed area.

Prescription of a water resource follows extensive consultation with community and consideration of economic and environmental consequences. Where a water resource is not prescribed, it is less protected. However, if there is a mention of a water and development plan then it is possible, under some decisions of the South Australian Supreme Court, that the impacts of the water source may be regulated.

...The wording of the WAPs has created some ambiguity and it is desirable in the long-term to standardise their wording to create certainty for all stakeholders. There have been many appeals to the Environment, Resources and Development Court regarding this issue.

He goes on to outline a number of other aspects but, particularly on levies, he states:

The NRM Act gives the power to impose regional levies on all properties in order to address issues identified in the State NRM plan. This levy is one of the few of its type in Australia and in the world. In 2004, the levy became known as a 'natural resource management levy'. The levy is collected by local government along with the collection of council rates. The average amount paid per household by urban residents was between $16 to $32 in 2006/07. The levy is struck on the value of urban rateable land in the AMLRNRM Board region. It is also possible to strike a levy in relation to the amount of water taken by licensed water users which is also—

The Hon. J.R. RAU: I rise on a point of order: given that the amendment which was moved by the honourable member's colleague elsewhere has been accepted and the present remarks do not appear to be necessarily advancing this or, indeed, relevant to this particular matter anyway, I take a point of order as to whether we are doing something that we should be doing here. It does not appear to be relevant or pertinent to the matter, and, as I said, we have agreed to the amendment proposed in the other place by the honourable member's colleague.

The ACTING CHAIR (Ms Thompson): I have no option but to uphold that point of order and ask the member for Bragg to very quickly draw her argument to how her history is relevant to the definition of personal property.

Ms CHAPMAN: I regret to note, Madam Acting Chair, that it appears that neither you or the Attorney-General were listening. I am not outlining history at all. I am outlining the current position as it applies under the Natural Resources Management Act. The Attorney should note that this is an amendment to the Natural Resources Management Act 2004, specifically relating to water management authorisation to be excluded, and I am referring to the Natural Resources Management Act and how it applies levies—

The ACTING CHAIR: Order! I know that the member for Bragg knows much better than to think that the subject of the whole bill is open. What is open is the insertion of the schedule of the amendment made by the Legislative Council. I refer to the history—the history is quite brief, and much of it applies now, but it is still the history. I would ask the member to address her remarks to the definition which is before us.

Ms CHAPMAN: Regarding the Natural Resources Management Act 2004, specifically in relation to water management, the professor outlines:

A meter must be installed on the well or pump. If that is inaccurate, other means may be used to estimate the volume used (NRM Act, Section 101)...The levy can be payable even if the water is not used. There is provision to authorise special purpose levies in relevant regional plans and this can be used to pay for special projects.

This amendment is particularly important, and whilst we have noted in the principal debate that water levies and water licensing under this prescription plan are under consideration as we speak, it may well be the government's expectation that there will be the creation of obligations, responsibilities and, hopefully, rights at the conclusion of that debate, as was outlined by the Attorney when we discussed this before. We have said, and the other place has agreed with us, that it is not appropriate that we change the personal property securities legislation to include what might happen at some future date. What is appropriate is that we deal with that issue if and when it ever comes to fruition. That is exactly why this amendment is so important and why we welcome its inclusion.

I place on the record that the opposition is quite prepared to have the debate on ultimately whether water management authorisation—or, indeed, any aspects in relation to water—is brought into this legislation or whether there is any transfer to the commonwealth if and when we ever get through the debate on the establishment of water levies. But at this stage we have one levy and it is unique, and we note it is in existence. Levies for water, specifically, as I have outlined previously, are within the power of the act and we are at the stage of hot debate.

I conclude by saying that I think I understood the Attorney to say that the origin of this idea, which has been rejected in the other place and which is now being acknowledged today, came from the Attorney-General's Department. I raised this with the minister for environment in a briefing on an ancillary matter. He indicated that he had no knowledge of any approach to anyone seeking that the NRM levies be incorporated at this point. Indeed, there were a number of representatives from the Department for Water and the department of environment from whom I inquired on the day as to whether they had any knowledge of a request for this matter to be mentioned. So, I think I am hearing it correctly that the Attorney-General says, 'This is something that emanated from my department' and not from those, frankly, who it is very pertinent to; and I place on the record that is the position as I have been informed.

It is a shame, perhaps, that there was not consultation on this even by colleagues in other departments—we might not have been brought to this. Nevertheless, that has occurred and hopefully this will remedy it, and I look forward to the further debate on those aspects in due course.

The ACTING CHAIR: Attorney, do you have anything to which you could respond, although I remind you that debate is confined to the clause under debate?

The Hon. J.R. RAU: No, I think we have really covered the ground pretty thoroughly, thank you.

Motion carried.

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