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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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WATER INDUSTRY BILL

Committee Stage

In committee.

(Continued from 8 November 2011.)

Clause 58.

Mr WILLIAMS: I have a couple of questions on this. I was really concerned about this and I asked officers of the department why this clause was in here. To be quite frank, I was not convinced, with the answers I got, that we need to have this particular power, and it somewhat disturbs me that it is here.

The bill is licensing water entities to be a retail service provider, and then it is giving a power for them to, under certain circumstances, desist from providing the full service. What I think we are endeavouring to move towards, what I would like to think we are moving towards, is a system where water entities have a contract between themselves and their clients, but this seems to me, at least, to give an out where they can walk away from that contract. I do not know why we would be putting that sort of power in the legislation and I would like the minister to explain to me why.

I would have thought that, if the water service or the water entity was supplying a water service to a client or a range of clients, there would be a specific contract between them. This is the way business is normally done and, generally, if there is some risk to the continuation of that service—24/7, 365 days a year, forever—it is written into the contract. Most contracts have out clauses in them and I do not see why we would be putting this in the bill.

There are other clauses in the bill which allow the minister to make decisions to impose water restrictions on water users where there is a serious need for that, such as a lack of water due to drought—something we are all very familiar with. I would love the minister to give the committee a really good explanation for this; otherwise, I have to inform the committee that the opposition will be opposing this particular clause.

The Hon. P. CAICA: This is a procedural amendment affecting the technical regulator and publishing of standards. Clause 58 provides the powers for water industry entities to respond to a set of circumstances that may impact their ability to provide a reliable or safe service. Under this clause an entity may restrict or discontinue supply in accordance with any requirement stipulated in the regulations, for example, if the quantity is insufficient to meet demand, if the quantity or quality is below standard, or the capacity of the water infrastructure is insufficient to cope with demand. This should not be confused with the water conservation provisions in clause 90 which prohibit certain types of water use and the time of use.

I guess the best way of summarising this—and I could go on for a while but we might be able to manage this a lot more efficiently by just addressing the concerns expressed by the member for MacKillop—is that, technically, he is right and, of course, I presume his concerns are about water companies walking away from their customers and, in turn, not supplying water. The thrust of this is to be able to respond to, for example, emergency situations and the like, and I think the concerns being expressed are unfounded because that is not the thrust behind it.

There are a number of examples where the powers in clause 58 would be used by SA Water and other entities. As I mentioned earlier, it might be a lack of supply or the quantity or quality of the water is below standard or if the capacity of the water infrastructure is insufficient to cope with demand. This clause is about dealing with those types of circumstances, not as was advanced by the member for MacKillop.

Mr WILLIAMS: As I said, I am still not convinced. I think the clause is totally superfluous. I cannot see any purpose or any need for this particular clause. As I said, water entities will be entering into a contractual arrangement with their clients and I think they could write all the necessary clauses into those contracts to cover those things that are contemplated here.

Again, I will raise one of my favourite topics. This also gives powers for the making of regulations so, again, there is a possibility for regulations which certainly have not been contemplated by the opposition at this point because we do not have a full understanding of exactly what the government is trying to do with this clause. I do not think there has been a satisfactory explanation.

I would say to the minister that I would have thought that, if you can justify having this clause, it should, indeed, have another subclause in it with a reporting function where, if a water entity did take action here, there would be a public reporting function within the clause, too. So, if you are going to insist on this—and you have certainly got the numbers in this place—I would suggest you consider that.

At this stage I am unconvinced of the necessity for this. You talked about emergency situations and if there was a lack of supply. All of those things we have been through in recent years and they are all adequately handled by other parts of the bill, just as they have been handled quite adequately over the last few years. I think that it is right and proper that decisions to cut off supply outside of contractual arrangements be done with the minister's approval, and that is the way it would happen under the other clauses in the bill that do allow for reduction in supply under certain circumstances and restrictions and so on. I do not see why we need this clause as well; so, the opposition will be opposing the clause.

The Hon. P. CAICA: I will try to help the member for MacKillop by being a bit clearer. Importantly, the powers similar to those in clause 58 have been afforded to SA Water in the past under section 33 of the Waterworks Act, and they will now be available for other water entities. Of course, we know that licence water entities will be obliged to provide certain standards of service as a requirement for and of their licence, and this would include matters such as continuity of supply.

However, this clause is about unforeseen circumstances, and I will go through them because it might add clarity. For example, the first instance is about lack of supply. A number of SA Water's rural systems have been developed to provide water for domestic and stock watering purposes. Without the ability to restrict supply, experience has shown that some customers have taken much higher volumes of water, for instance, to store water by filling large dams. This then interferes with the system's ability to provide water to downstream customers and has the potential to exhaust water allocation, potentially making SA Water noncompliant with its licence requirements.

I will mention another example. The powers in clause 58 would also be used in situations of poor water quality. Drought conditions typically lead to a deterioration in water quality, such as higher salinities and the potential for toxic algal blooms. Whilst this has been managed in the past, issues with salinity or nutrient levels could lead to the need to discontinue supplies should the water become unsafe to drink.

Finally, on the topic of short-term system failures, the powers in clause 58 could also be used in situations where there are such system failures. Circumstances arise from time to time that require the water supply system to be shut down. For example, in 2005 SA Water lost pipelines on Eyre Peninsula due to bushfires and supplies were severely interrupted for two weeks, with water supply subsequently restricted. It is examples like those that this clause deals with.

As I said earlier, for those water entities that are licensed, ESCOSA's codes could place conditions on how the statutory powers in clause 58 might be exercised, such as requiring additional steps to be taken prior to discontinuing water supply; for example, phone calls and leaving letters or notices at the supply address.

If ESCOSA does adopt a similar code for water as it does for electricity (and I do not want to go down the road of comparing electricity with water because we have had that particular debate), we can expect that it will cover disconnection in this way. Furthermore, the extent to which conditions might be imposed around this power will be the subject of public consultation on any industry code as required under part 4 of the Essential Services Commission Act 2004.

The government will certainly argue that the absence of powers such as those in clause 58 would mean that each water industry entity would need either to provide sufficient infrastructure to guarantee continuous supply under all situations regardless of costs or allow systems to run dry when available water was exhausted. I think that this is a very sound provision within the bill. I hope that has clarified the situation for the member for MacKillop.

Clause passed.

Clauses 59 to 64 passed.

Clause 65.

Mr WILLIAMS: I move:

Page 49, line 33—Delete paragraph (b)

I am aware of the time we are taking on this and I have given an undertaking to the minister that we can get through this fairly quickly, so I will endeavour to do that. I have said this a number of times already in the debate on this bill. Clause 65(10) provides that subsections (5), (6) and (7) do not apply—and they are about the establishment of a code, variations to a code and the publication of those variations. Subclause (10)(a) basically says that if the minister certifies on the advice of the technical regulator, those subclauses (5), (6) and (7) do not apply—that is, if it is only a minor variation and you do not have to go through all the notifications and publications for a minor variation as per those clauses.

Paragraph (b) says 'in any other circumstances prescribed by the regulations'. Again, why would we give the power to make a regulation such that subsections (5), (6) and (7) do not apply? I do not know what is contemplated here and I question the sensibility of giving a power to make regulations when we have no understanding of what is contemplated. The opposition has moved this amendment in order to delete paragraph (b).

The CHAIR: Minister, do you wish to respond?

The Hon. P. CAICA: Yes, I think I do because I think it is wise that if I am going to oppose an amendment that the member for MacKillop understands why. This is a procedural amendment affecting the technical regulator and publishing of standards. This amendment forces the technical regulator to cause a copy of a standard to be laid in both houses of parliament in any instance other than when a standard is classed as a minor variation.

There are instances where a standard may not be considered a minor variation but has been adopted from a national set of standards. In these instances, these standards have usually gone through significant assessment and consultation on being adopted to promote consistency across jurisdictions. To subject these standards in these instances to the process outlined in the subsections that are referred to is unnecessarily bureaucratic and would cause inappropriate delays including on matters related to improvements or perhaps improvements to safety.

It was the government's intention to prepare regulations that prescribed the circumstances on which the subsections (6), (7) and (8) will not apply to these non-minor variations. These regulations were to be brought before parliament next year and can be disallowed. It is there for that particular reason. As I said, we will not support it, and I hope that clarifies things.

Mr WILLIAMS: I accept the example that the minister gave. Why didn't he put that in under those circumstances and then dispense with the much broader power of making the clause apply in other circumstances prescribed by regulations? If the government is aware of a further circumstance or even a number of further circumstances, I suggest that they specify them and put them in the bill and it will be much more acceptable. I continue to find it unacceptable that we give powers to make regulations on things that we have not contemplated, so I will leave it there. We will not be supporting it.

The Hon. P. CAICA: I will just say this. We are dealing with an industry that we wish to reform and we both support that. We are dealing with very complex matters with respect to the issues related to the water industry and, of course, with respect to what the member for MacKillop said that might well be the outcome. But I think as opposed to putting it in the legislation at this point in time, it requires further consultation with industry and potential entrants into the industry, and we would get a better outcome than pre-empting what it might be that arises from that consultation.

The CHAIR: Just before I put the question, I draw members' attention to a clerical error in subsection 10 of clause 65 that needs to be acknowledged. Where is says 'subsections (5), (6) and (7)', it should actually read '(6), (7) and (8)'. Does that change anything for you, member for MacKillop?

Mr WILLIAMS: It may.

The CHAIR: I am happy to give you a moment to gather your thoughts.

Mr WILLIAMS: Thank you.

The CHAIR: I apologise; I should have raised it with you earlier. Member for MacKillop, parliamentary counsel are happy to talk to you, if you wish.

Mr WILLIAMS: Thank you, Mr Chairman. It does make a material difference and I was unaware of that until right now. I will have a look at that between houses and we may change our attitude. At this stage, we will let the clause stand as printed. I withdraw my amendment.

Clause passed.

Clauses 66 to 79 passed.

Clause 80.

Mr WILLIAMS: Hopefully, this is in order: can I move both amendments Nos 28 and 29 together?

The CHAIR: Yes.

Mr WILLIAMS: I move:

Page 59—

Line 2—Delete 'Subject to subsection (2), a' and substitute:

A natural

Lines 5 to 23—Delete subclause (2)

Again, this is one that I bang on about quite regularly. It is about self-incrimination. We continue to put powers in our statutes, particularly in the case of environmental law, that are more stringent than the powers we give to our police—more stringent than we give to sworn police officers. The principle of having the right to remain silent to protect one from self-incrimination is a fundamental in our law, in my opinion, and I think we have been trampling all over that fundamental in this state, and I am certainly going to continue my campaign to put a stop to it.

Interestingly, we have just spent the last couple of days in this house debating the Roxby Downs (Indenture Ratification) Act, and in that act the self-incrimination—no, I won't go there, it is a bit different. But I will say that this goes hand-in-hand with the powers of authorised officers to collect evidence, and in that ratification act to the Roxby Downs indenture, the powers assigned to authorised officers are incredibly mild compared with the powers that we have been putting into particularly our environmental law.

I am sure that in the discussions that were held between the government BHP Billiton, BHP Billiton won the day on that. I am on the side of BHP Billiton; I think that we have been giving far too much power to authorised officers, and one of them is to demand information from people where that might create a situation of self-incrimination. I think that this totally unfair, and it is something that I don't think this parliament should be contemplating. So, with the first amendment, it would thus read:

A natural person is not required to give information or produce a document under this part if the answer to the question or the contents of the document would tend to incriminate the person of an offence

The second amendment (No. 29) deletes all of subclause (2) because it would no longer be necessary. Subclause (2) also provides that if a person is a body corporate—I think we already have case law in Australia which has taken away the right of corporations to remain silent under these circumstances. I am not a lawyer, but I don't know that we need to repeat that in here; I think that is an accepted part of our case law.

The Hon. P. CAICA: Clause 80, as proposed in the bill, already includes appropriate protections, and balances these against other policy outcomes. Notwithstanding that, I know from the Natural Resources Management Bill that we were dealing with, some of the difficulties associated with this particular clause, and I have given publicly a commitment with regard to what would happen with that in the passage between this and another place, if that bill is indeed to be debated for the end of the year.

I would like to give some examples, because I think this is an important clause, and to that extent, I will be opposing the opposition's amendment here, and we will see what happens between here and the long road to the other place. So, for example, if a natural person is required to provide evidence that is incriminating, then that evidence cannot be used against them in court; however, the information obtained could still lead investigators to other evidence that could be used to prosecute a person.

Clause 80 also provides protection in the instance where a company is required to produce evidence that is incriminating. Again, that evidence cannot be used against them in court, but the information obtained could lead investigators to other evidence that could be used to prosecute a company director. The effect of this opposition's amendment would be to remove this clause in relation to companies.

If evidence or information cannot be obtained in this way then it may not be possible to prevent continuing harm, or to manage risk of harm, to persons, the environment or the public. We are talking about a very important essential service being provided to people. I cannot support the opposition's amendment, but I will finish off by making this point. Interestingly, in April this year the opposition supported self-incrimination provisions in the Safe Drinking Water Bill that were similar to the provisions in clause 80 of the Water Industry Bill.

In fact, the provisions offered less protection for a person who has to produce documents or provide information. I make no reflection on why the opposition supported that clause within that particular bill, but I would presume it was because it was an important clause, and I argue that this clause is equally important in the context of what we are dealing with and seek their support for it.

The CHAIR: You may be disappointed, minister.

Mr WILLIAMS: Thank you, Mr Chairman. I can inform the minister that the opposition is in the process of looking at a raft of statutes that have these sorts of clauses in an effort to standardise them. That is something that myself and some of my colleagues are doing. You confirmed my point, minister, when you said that the evidence given, if it would tend to create a situation of self-incrimination, could not be used in a court against a person, but it may well lead to other evidence which could be used against them, technically.

Minister, it is that very evidence which has created the self-incrimination. This sort of legislation is turning on its head the principle that a citizen should not be required to provide evidence against themselves which would self-incriminate them. That is a longstanding principle in our law and, until I have seen a very good reason why that fundamental principle should be overturned, I do not think that we should be trampling that principle in this manner.

The reality is that you are giving authorised officers, in the case of environmental-type legislation, more powers than the sworn police have to investigate a murder. That is the reality of what we are doing here. I think it is poor law making. I think it is a very poor principle. I know that it is all well and good for departments who want to be able to get prosecutions to go to the executive government and say, 'Ministers, we are having trouble getting convictions. There are some really bad people out there, and we want you to make it a lot easier for us to get convictions.'

That is what this is about. It is not about protecting the community or the environment before the act, and that is the impression you are trying to give us, minister. This is about gathering evidence after the act in order to get a conviction, and that is why I do not accept your argument that it is important to be able to gather this evidence. This evidence is all about getting a conviction, it is not about preventing something from happening, so I am unconvinced by your argument, and the opposition will continue with its proposal of amendments Nos 28 and 29.

The Hon. P. CAICA: I will recap a few matters because I am not sure that the member for MacKillop necessarily heard what I was saying the first time around. The last comment about convictions, and the comments that were made about officers who would be discharging their responsibilities, is actually a nonsense.

If you had heard me the first time, I said that if evidence or information cannot be obtained in this particular way then it may not be possible to prevent continuing harm—and I repeat the words 'continuing harm'—or to manage risk of harm to persons, the environment or the public, and that is the thrust behind this. I will recap, and I acknowledge that the Deputy Leader of the Opposition said that he is doing a forensic (and I use the word 'forensic') analysis of the statutes to see where this exists elsewhere.

I will make this point, because he might not have heard me the first time around. In April this year the opposition supported self-incrimination provisions for the Safe Water Drinking Bill that were similar to the provisions in clause 80 of the Water Industry Bill. In fact, the provisions offered less protection for a person who has produced documents or provided information. So, I would just suggest that forensic analysis needs to also be undertaken to a bill that was recently supported by the opposition in April this year. This is an important clause that we are promoting.

Amendment negatived; clause passed.

Clauses 81 to 86 passed.

Clause 87.

Mr WILLIAMS: I move:

Page 64, lines 27 and 28—Delete subclause (2)

We have been through this issue previously, too, and I do not think the government supported it the last time. I have not checked, but it was a fair while ago that we did all of this. Again, it is about having a power to on-delegate a delegation. I put down the reasons for it quite strongly earlier in the debate on this thing.

Basically, I have no problem with the minister being able to delegate a function or power conferred on the minister, but then I think that if the person to whom that power has been delegated is no longer able to carry out that function, or there is a belief that the delegation should be made to somebody else, the delegation should be revoked—the power is there to revoke the delegation—and a new delegation be made rather than quite simply on-delegating to somebody else and then on-delegating to someone else, because you lose track of where the function is.

I think I cited last time one of our statutes (from memory think it was the Mining Act) that I asked the agency who had delegated authority for certain functions, and it was almost impossible to provide the information. I have not had the privilege of being a minister and I am not quite sure how the agencies manage this, but it seems to me, from trying to get my head around who has delegated powers, that we use a very clumsy system. I think it would be a much better system if we stopped this on-delegating and just revoked the delegation and re-delegated it to the new person who was going to carry out the function.

The Hon. P. CAICA: I will be very quick. This is similar and has a similar effect to amendment 9 that was the subject of some debate earlier. I was not persuaded by the reasoning of the member for MacKillop and now I am not persuaded by his latest contribution. My position is the same as dealing with clause 9, that we will not be supporting this amendment.

Amendment negatived; clause passed.

Clauses 88 to 90 passed.

Clause 91.

Mr WILLIAMS: I move:

Page 68, after line 30—Insert:

(11a) This section does not apply in relation to land—

(a) if the land is not supplied with water by a retail service provider; or

(b) if water supplied to the land by a retail service provider is supplied as part of a water supply system that is not in any way connected to a water resource that is sourced (directly or indirectly and wholly or in part) from the River Murray.

This amendment would reflect a policy of the opposition. It wouldn't surprise me if the government opposes the amendment, but the amendment simply provides an exclusion from paying the Save the River Murray levy to those citizens in South Australia, or particularly those SA Water customers, whose water supply has no connection to the River Murray, for instance SA Water customers on Kangaroo Island.

Not one thing that those customers do can have any influence on the River Murray. They can change their habits, their water use practices, their whole culture and the way they live, but it will have no impact on the River Murray. They question why on earth they should contribute towards the Save the River Murray fund.

Although the government did promise that they would not introduce any more new taxes all those years ago and then broke that promise by introducing the Save the River Murray levy, I can understand why you could make an argument that those householders and businesses who are connected in some way to the River Murray should have some obligation to ensure the sustainability of that waterway and that river system.

That is, I think, an argument that can be made and sustained, but how you could impose such a levy on, as I said, the people from Kangaroo Island, is a nonsense—or the people down in the southern part of my electorate. There is a pipeline from the Murray all the way to Keith, but once you get beyond that, you go to Bordertown, Naracoorte, Lucindale, Penola, Millicent and Mount Gambier (outside of my electorate), but down in the Lower South-East, and also SA Water supplies all those towns along the coast, Robe, Kingston, Beachport, Southend, Carpenter Rocks, generally from groundwater systems. There is no connection to the River Murray at all.

It is worth noting that we have our own unique environmental issues in that part of the world and my constituents have been paying levies for other things which nobody else in the state has contributed to. So I question the rationale for imposing this levy on SA Water customers whose water use has no impact on the River Murray whatsoever.

The Liberal Party took this policy to the last election and I have taken the opportunity to propose an amendment which would exempt those SA Water customers, those householders who have no connection to the River Murray. I think it is a defendable position. The opposition believes that this is a very sensible matter and it would tidy up a glaring anomaly in the Save the River Murray levy.

The Hon. P. CAICA: Of course, the government will be opposing this particular amendment. The River Murray is an iconic part of the social and environmental fabric of South Australia. Its value goes well beyond its function as a water supply for large parts of South Australia. We do not believe that it is unreasonable to ask South Australians to contribute to the preservation of one of our great state assets. The amendment, of course, would also negatively impact on the revenue available to save the River Murray. I do acknowledge, just like—

An honourable member: How?

The Hon. P. CAICA: No, I am not going to go there. The member for MacKillop talked about either no connection to or cannot make a difference in those areas that are not supplied, but indeed they can make a significant difference. They can make a significant difference to the health, welfare and wellbeing of and indeed contribute to the preservation of one of our great state assets, and that is a responsibility of not just all South Australians but a responsibility of all Australians, so we will not be supporting this. It is money collected for a very, very worthwhile purpose.

Mr WILLIAMS: The minister may well be able to give the committee some information, and I am quite happy for him to take this question on notice. Exactly how much would be forgone if this amendment did get up, because I strongly suspect it will get up in the other place? The minister also might contemplate this: he just said it was the responsibility of all Australians, so why does he not get his mates in Canberra to pass a law to impose a levy on all Australians?

The reality is that at my home in the South-East I am not a customer of SA Water. I am a very proud South Australian, and I certainly want to see the River Murray in good health, but because I am not a customer of SA Water I do not contribute to the Save the River Murray levy. A large number of the people living in rural South Australia, certainly in the southern part of the state, do not contribute, and a significant number of people living throughout the Adelaide Hills, particularly on rural properties, do not contribute, so this is quite selective in one sense.

I have admitted that I think it is a reasonable argument to say that those people who are relying on the River Murray for their potable water supply have a greater responsibility to the ongoing health of that water supply than those people who are not; that is the point I am trying to make. I think that is a very strong argument, and I think it is a nonsense that people on Kangaroo Island or in Mount Gambier and Naracoorte have to pay the Save the River Murray levy. It is just a nonsense, and that is why I am moving the amendment and it will be moved very vigorously in the other place.

The Hon. P. CAICA: I have no doubt that it will be moved very vigorously in the other house. I would just reinforce the point that the Save the River Murray levy is an extremely worthwhile, long-lasting contribution to restoring and maintaining the river's health. The money raised through the levy is vital, from our perspective, in ensuring long-term sustainability of the waterway in many areas. We are not going to support the opposition, of course. We are going to oppose that, and it will be dealt with in another place.

Amendment negatived; clause passed.

Clause 4—reconsidered.

Mr WILLIAMS: Amendment No. 2 is consequential on a number of other amendments which the government, at least in this place, has foolishly decided not to support, so I withdraw the amendment.

Amendment withdrawn; clause passed.

Remaining clauses (92 to 111) passed; schedules and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. CAICA (Colton—Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:33): I move:

That this bill be now read a third time.

I thank everyone who has been involved in the work that has been undertaken on this bill. I also thank the opposition for the way in which they have approached this bill, particularly the member for MacKillop. I can understand why he was unanimously selected as the deputy leader, because he has shown outstanding skill here today. Notwithstanding that, we do not support a lot of the amendments that have been proposed but he has put them forward in good faith and on the basis that he thought it would make the bill a better bill than it was. I want to thank him for his contribution.

It is also important, too, to thank parliamentary counsel. This is very significant reform that we are undertaking in this bill. They have worked very well, as have those who have advised me from the various departments, as well as the officers from my office.

It is a long road and we are only halfway through it. It is a long march now to the other place and through the other place. I hope that, with the information that we will provide to them between now and their contemplation of this bill, we will see this bill go through the other place in the form in which they receive it.

Bill read a third time and passed.

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