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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

Commissioner for Kangaroo Island Bill

Committee Stage

In committee.

(Continued from 16 September 2014.)

Clause 3.

The CHAIR: We are looking to the member for Goyder to see his intention regarding the consequences of a negative vote last evening.

Mr GRIFFITHS: I did flag in the earlier debate that the first seven amendments are consequential upon the success of the first, and four of those are included in clause 3. In recognition of the fact that a division was held and the vote was lost, I will not pursue those, but I think that it is quite relevant for me, and others who might choose to, to put on record the level of frustration and the reason we have proposed these amendments (because they are still subject to some later on if we want to pursue them); that is, we have grave concerns about the impact upon local government.

The minister certainly provided a lot of comment late yesterday about directions, financial impacts and things like that. We do believe that there is a direction opportunity from the creation of the management plan which determines how things will be undertaken and which can control the decisions that are made by other groups. That is why we have raised this concern and spoken to it at quite some length.

The member for Finniss has asked me to give him the opportunity to outline his concerns he as the local member has as to why this occurs. I put on the record that I will not be pursuing the other three amendments that are contained within this clause, but I know that others wish to speak to the issue within this clause area.

Mr PENGILLY: I am greatly concerned over the fact that the local government sector, or the local council, has been left included in this bill. Local government has a long and proud history on Kangaroo Island. It formerly had two councils, the Dudley District Council and the Kingscote District Council, and I was a member of both at different times. Then I was involved in the formation of the Kangaroo Island Council; indeed, as I indicated, I came into this place as mayor but lost that position, of course, as soon as I was elected here.

I am also disappointed that, despite speaking to the local government minister right here, saying that I wanted to speak to him about this bill, he never gave me the courtesy of discussing it. That greatly disappointed me. He knows that I spoke to him right here.

Further to that, what worries me is that over the last few years the Kangaroo Island Council has been totally, absolutely and completely dysfunctional. It was so at an administrative level, and that happened six or seven years ago. I think it is in a better shape now administratively, but at the elected member level it is completely, totally and absolutely dysfunctional. No-one seems to want to hear about it. I have sat there and observed, and just recently I have had businesses speak to me telling me that they are not getting paid on time, that the council has been slow in paying.

The Hon. J.R. RAU: Madam Chair, I want to raise a matter here. Leaving aside the oddity of someone who is protesting about what they say is an attack on local government turning around, in the next breath, and criticising the same local government agency for being incompetent, the purpose of the debate today is clause 3. It is not an opportunity for the member for Finniss to participate in some form of electioneering in respect of the current local government elections. So—

Mr Pengilly: This is a smokescreen.

The Hon. J.R. RAU: What you are doing?

Mr Pengilly: No; what you are doing.

The CHAIR: Order! Minister.

The Hon. J.R. RAU: We have had the conversation about this several times already. The member for Finniss has made his views clear multiple times in the last day or so, and for as long as I can recall before that. This is repetitive and is not pertinent to what we are dealing with.

The CHAIR: We have asked the member for Finniss to remain on task, which is clause 3. We have asked him not to continue along this line. We can only ask him to desist and move on.

Mr PENGILLY: Madam Chair, the point that I make—

The CHAIR: We can only ask you to do that. If you do not wish to do that we will have to look at a way to make sure that we do move on.

Mr PENGILLY: It seems to me as though there is a wall being put up so that we cannot debate this issue. I am absolutely concerned that in the future, with the appointment of such a commissioner, the local government on Kangaroo Island will have this impediment hanging over it. That is my point. If you think I am local government electioneering you are completely wrong—

The CHAIR: What we are actually saying is that it is not relevant to the debate so we will ask you, if you have nothing relevant to add to the debate, to sit down and we will continue. This is not the time to raise what you are raising; that is what I am being told. We need to move on.

Mr PENGILLY: You can have it now, Madam Chair, or you can have it at another time, but it will come out, I can tell you that, and you might not like it when it comes out—

The CHAIR: That is right, exactly. All we are saying is that it is not relevant to the moment.

Mr GRIFFITHS: I point out that under the interpretation of state authority, clause 3(c) does say 'a council'. I think that is where there is an opportunity for a direct relationship back.

The Hon. J.R. RAU: Madam Chair, yesterday we had a lengthy debate about clause 1 relating to the member for Goyder’s amendment. That was, as he indicated to the parliament quite properly, I think, at the time of that debate, in substance and in every material respect identical to every other one of his amendments, save and except amendment No. 8. We had a conversation about that and, in the context of that conversation, the member for Goyder even said, ‘I accept that the vote on this matter will in effect dispose of the other matters. They either all get up or, if this one goes down, I accept the other ones can’t be proceeded with but I still have No. 8 to deal with.’

Mr GARDNER: Point of order—

The Hon. J.R. RAU: Hang on—

Mr GARDNER: I am not sure what is going on here—

The Hon. J.R. RAU: I am taking a point of order. You cannot take a point of order on a person who is taking a point of order until they finish taking the point of order.

The CHAIR: Order! You will be granted the same right to be heard in silence—

Mr Gardner interjecting:

The CHAIR: —when it is your turn.

Mr GARDNER: There is a standing order relating to the taking of points of order and the Deputy Premier is not complying with it.

The CHAIR: We will see. As the senior law officer of the state, I am sure he would not lead us all astray, would he.

Mr Gardner: Maybe he can quote it.

The CHAIR: Order!

The Hon. J.R. RAU: My point is, Madam Chair, the parliament yesterday debated clause 3 on the understanding, from everyone’s point of view, as the Hansard will tell you and as the member for Goyder made quite clear, that that was the conversation about clause 3 and local government. We did all of that yesterday. Now, we are going through this completely otiose operation of having the same debate all over again, presumably another six times until we get to No. 7. That is contrary to the understanding of the parliament yesterday. This issue has been debated on the undertaking of the member for Goyder, and this matter—unsatisfactorily, no doubt, from his point of view—has been resolved in the negative.

Mr GARDNER: Point of order.

The CHAIR: The member for Morialta has a point of order.

Mr GARDNER: Standing order 134 is the point of order and I would just identify that the Deputy Premier has failed to comply with 134.2.

The CHAIR: Clearly, a hanging offence—what is it? Show me point 2.

Mr GARDNER: The Deputy Premier is supposed to state the point of order, sit down, and let the Chair rule. He failed to do so; he just gave a speech.

The CHAIR: It is relevance, surely. Correct?

The Hon. J.R. RAU: Correct.

Mr GARDNER: We did not need that six-minute diatribe to do that.

The CHAIR: Unfortunately, we have had a lot longer on this side. Are we all going to have some goodwill here or not?

Mr GARDNER: As a point of order, ma’am, under the rules of debate, the member for Finniss is entirely entitled to make contributions in relation to clause 3 that are relevant and—

The CHAIR: He has had several, and he had several last evening.

Mr GARDNER: That may be the case, and if he has exceeded the number, then that is a point of order that could have been raised, but to say that it is irrelevant to the clause is actually not true and the point of order was presented incorrectly.

The CHAIR: Let’s go back. I presume the minister is working on his agreement with the member for Goyder, which now seems to be in tatters, so we are apparently back to listening to the member for Finniss.

The Hon. J.R. RAU: I have not been holding the other side to three comments and everything else. If that is what it has to get down to, fine, and I am grateful to the member for Morialta for giving me another point, but we did have this conversation yesterday.

The CHAIR: That is now being repetitious. Apparently, they are not going to agree with you, so we are back to the member for Finniss asking questions. He will have three and he has already had one.

The Hon. J.R. RAU: Yes, and I do point out that he does have the alternative of saying something at the third reading if he chose to.

The CHAIR: Of course he does, but he is choosing not to be cooperative in that fashion.

Mr GRIFFITHS: Can I just clarify that the commitment I gave as part of the debate yesterday afternoon was not to move subsequent amendments if the first one was lost.

The Hon. J.R. RAU: That is lost, so you are not moving it. What are we talking about?

Mr GRIFFITHS: The member for Finniss is asking a question about—

The Hon. J.R. RAU: About something that was lost yesterday. You are not moving these amendments.

The CHAIR: The member for Finniss has the call.

Mr PENGILLY: Thank you, ma’am. My question is this. This bill, if successful through both houses of this parliament, is fundamentally going to change the social fabric of the way the island does business, with the elected body of the council having been there for a long time in two forms and now one form. It is going to go completely over the top of the council with this commissioner. We heard yesterday the Attorney tell the house in committee what the process is if the commissioner believes—

The CHAIR: I need to remind you that we are talking about the interpretations of clause 3, not anything broader than that.

The Hon. J.R. RAU: What is the question?

The CHAIR: The question is: will it change the fabric? Correct?

Mr PENGILLY: I am asking the minister—

The CHAIR: Well, that is the question.

The Hon. J.R. RAU: Is that the question?

The CHAIR: ‘Will it change the fabric of the island?’

Mr PENGILLY: This is ridiculous, and I—

The CHAIR: We are trying to help you.

Mr PENGILLY: Well, it just seems to me, Madam Chair, that every time I get to my feet to say something, the minister jumps up like a jack-in-the-box to try and stop me. He does not like it.

The CHAIR: I am advised that these issues should have been canvased before we came out of the second reading; all I can do is act on that advice. What is your question? ‘Will it change the fabric of life on Kangaroo Island?’

Mr PENGILLY: Well, I am interested to know whether they had—

The CHAIR: That is your question?

Mr PENGILLY: —thought through how that will change the social fabric of the island and the way it does business through the local authority. Now, when it comes to—

The CHAIR: No, that is the question.

Mr PENGILLY: I am just—

The CHAIR: That is the question. Minister.

The Hon. J.R. RAU: I am happy to answer their question. The answer to the question is no. Not only is the answer to the question no, but the Kangaroo Island Council themselves endorse this position; they endorse it. Unlike the opposition, I am not pursuing a policy which is opposed by the council. I am pursuing something that has the endorsement of the council and the endorsement of the LGA. We are in a situation now where a fairly remote regional council has a wish which the government is trying to take through the parliament, and their elected representative is trying to stop the council’s wish becoming law. That is the situation we have. The council wants this; we are delivering it.

The CHAIR: So the answer is no.

The Hon. J.R. RAU: No is the answer, yes.

Ms CHAPMAN: My question firstly in relation to the inclusion of council as the definition of statutory authority. We have another bill before us, minister, for a commissioner for children and their wellbeing. That also has a statutory authority—

The Hon. J.R. Rau: I do not know about that.

Ms CHAPMAN: Well, just let me outline it, and it will be clear to you—that includes a number of entities that will be included for a statutory authority. The definition used in that, which is the only other contemporary legislation I am aware of that is dealing with commissioners, is to actually define it as a local council. Is there any reason why the drafting of this bill was done to be a ‘council’ rather than a ‘local council’?

The Hon. J.R. RAU: I am advised there is no magic in this, it is just the way it was drafted. It applies to a council; at the moment, there is one. I would have thought, at the present time anyway, in terms of Kangaroo Island, it is unlikely we will get two there in the near future, but—

Mr Griffiths: There used to be.

The Hon. J.R. RAU: There were previously. Just further to that, to make the position fairly clear to members, this should be on the record. This is correspondence dated 25 June from the council to me, advising that:

Council passed the following resolution:

That Council:

1) Thank the Minister for his comprehensive, consultative approach—

Members interjecting:

The CHAIR: Hang on, can we just listen. I am trying to hear what he is saying, and then we will get onto the next bit.

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

to explaining and refining the Commissioner for Kangaroo Island Bill legislation and for allowing the Council to review and suggest changes which have then been incorporated as formal amendments. Council are content with the explanations, planned clarifications in Hansard and formal amendments proposed with one additional suggested inclusion into Amendment 10 section 19A whereby the words “…and conduct this review every four years thereafter” may be added to the end of the paragraph.

2) Council will write to all Members of Parliament reiterating Council’s support for the Bill…

That is the attitude of the Kangaroo Island Council to this bill. It is in writing, so—

Ms CHAPMAN: I thank the Attorney for just repeating again what has been in the debate; I hope he is not going to be taking points of order on repetition. In relation to council being included, it has been confirmed and acknowledged throughout the debate that the council of Kangaroo Island has indicated their support to this. My question is: had your government put any other form of governance restructure to the council other than the commissioner proposal?

The Hon. J.R. RAU: The question is completely irrelevant to the material before the parliament but, in an effort to move on, I will answer it. The answer is that we have not put anything else to the council. We have put this bill to the council and to the community on Kangaroo Island. We have sought their comments. We have received their comments. We are taking their comments into consideration, and the amendments which stand in my name are reflective of those conversations.

Ms CHAPMAN: Given that the KI Futures Authority has published a schedule of directions, including a change of the governance structure on Kangaroo Island—and I think from discussions yesterday your indication was that there is some ongoing conversation (whatever that is and whomever it is with) with persons unknown in respect of governance changes on Kangaroo Island—has there been any discussion between your government and the KI Council in respect of any other proposals for different governance arrangements for Kangaroo Island and, if so, what are they?

The Hon. J.R. RAU: Again, completely irrelevant to the clause, totally irrelevant, but in the vain hope that we can move on: I have not been involved in consultations with the council about anything except this.

Ms CHAPMAN: If I can just conclude on this point, given that the council has only been given the commissioner structure, that you acknowledge that there are some conversations going on to which you have not been party, as is evident, why is it that you are pressing to include the council in this structure when it has not been, to the best of our knowledge, fully consulted on any other governance restructure on Kangaroo Island?

The CHAIR: You do not have to answer that if you do not wish to.

The Hon. J.R. RAU: No, but I just want to share with everybody that at that point in time I heard the alarm clock go off, I looked over, it was 6am and I Got You Babe was playing very loudly.

Mr GRIFFITHS: I have a question under 3(c), responsible minister, which I did seek to remove. It states ‘if the authority is a regional development assessment panel’. Minister, I am not aware that regional development assessment panels actually exist. I am intrigued as to why that interpretation of a structure that is not in place yet is actually included in the bill.

The Hon. J.R. RAU: That is meant to contemplate if such a body exists. I do not, off the top of my head, know whether such a body presently exists, but if it were to exist it was intended that it be captured.

Mr GRIFFITHS: Minister, I can understand that you are a forward-thinking person. I know that that is your nature and I can appreciate that, but it intrigues me that legislation can include words that contemplate something that may exist in the future. As an individual who thinks that the parliament is for the democratic and public debate of all these things, I am rather disappointed that you include words about a structure that may exist, depending on whether you, as the planning minister, decide to pursue it and, indeed, if the parliament allows the structure to be established.

The Hon. J.R. RAU: All I can say is that the concept of a council development assessment panel is something that exists presently. There is currently conversation going around about potential changes—

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, you do know about this one. You know about this one.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, you do. Mr Hayes and others have been circulating comments and suggestions about regional development assessment panels, and this is future-proofing this piece of legislation just in case that gets up.

The CHAIR: Member for Finniss.

Mr PENGILLY: Can I ask the minister: if indeed regional assessment panels are not in place, particularly on Kangaroo Island, why does he not remove that and just leave it at the local development level?

The CHAIR: He has already answered that question, as far as I know.

Mr PENGILLY: It does not exist.

The CHAIR: I am going to put clause 3 as printed in an effort to move things along.

The committee divided on the clause:

Ayes 22

Noes 19

Majority 3

AYES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Digance, A.F.C. Gee, J.P. Hamilton-Smith, M.L.J.
Hughes, E.J. Kenyon, T.R. Key, S.W.
Koutsantonis, A. Mullighan, S.C. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R. (teller)
Snelling, J.J. Vlahos, L.A. Weatherill, J.W.
Wortley, D.
NOES
Bell, T.S. Chapman, V.A. Evans, I.F.
Gardner, J.A.W. Goldsworthy, R.M. Griffiths, S.P. (teller)
Knoll, S.K. Pederick, A.S. Pengilly, M.R.
Pisoni, D.G. Redmond, I.M. Sanderson, R.
Speirs, D. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.
PAIRS
Hildyard, K. McFetridge, D. Odenwalder, L.K.
Marshall, S.S.

Clause thus passed.

Clauses 4 and 5 passed.

Clause 6.

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

Amendment No 1 [AG-1]—

Page 4, line 8 [clause 6(2)]—Delete subclause (2)

Amendments Nos 1 and 2, very briefly, were contemplated as a result of negotiations with the council.

Mr GRIFFITHS: As I understand it, this amendment is a slight structural change and it is put to a different part of the bill, so the opposition indicates its support.

Amendment carried.

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

Amendment No 2 [AG-1]

Page 4, after line 9—After subclause (3) insert:

(4) The Minister must undertake consultation (in such manner as the Minister thinks fit) with the Kangaroo Island Council and the people of Kangaroo Island in relation to any proposed appointment under this section.

(5) The person appointed as Commissioner—

(a) should have experience in the commercial sector and a detailed understanding of the system of government in the State (including the respective roles of State and local government) and any strategies, plans or objectives for Kangaroo Island adopted by the State Government or the Kangaroo Island Council; and

(b) may be a Public Service employee.

Mr GRIFFITHS: As I understand it, amendment No. 2 relates to:

The Minister must undertake consultation (in such manner as the Minister thinks fit) with the Kangaroo Island Council and the people of Kangaroo Island in relation to any proposed appointment under this section—

being for the appointment of a commissioner. In my review of the amendments, the obvious question I raise is that there is no mention of the local MP. In relation to such a critical appointment to be made, in the hope that no matter what political party is actually in governance—and it stems back to our alternative vision of the involvement of a local MP in this, because I think it is really important—I would seek the support of the minister in considering between the houses the potential for some form of amendment that actually includes the words of the local MP being considered as part of that on a formal basis.

The Hon. J.R. RAU: I will think about it, but I do note that that is not contained within any of the amendments proposed by the opposition. I also note that clearly the local member would be one of the people of Kangaroo Island, but I will consider it.

Ms CHAPMAN: On the definitions that have been referred to in your motion, minister, the 'people of Kangaroo Island' are not defined in your bill, so I just inquire as to how they will be defined. Are they ratepayers? Are they people who live there temporarily or permanently? Are they people who are on the electoral roll? Are they people who love it? I am not quite sure who they are or how you propose to consult with them.

The Hon. J.R. RAU: These are matters, ultimately, that will be worked out using that most uncommon of commodities, common sense. The idea is that obviously if somebody lives there they are there. I assume that, as we have done in consultations up until now, if somebody is a ratepayer of the island, even if they are not a permanent resident, they should be given the opportunity to have a chat. People like me who have no direct connection with the island obviously would not be included. I think one would bring a proper common-sense approach to it. If somebody either lives on the island or has a presence on the island—has property on the island or has business on the island—then I guess they should be spoken to.

Ms CHAPMAN: Could you outline the process as to how they will be consulted?

The Hon. J.R. RAU: Again, I think we are talking about common sense. For anybody who has been observing what is going on, the government has been having consultations with people on and off the island about this bill for some time.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, I understand that. My intention would be that we will continue to have the sorts of conversations we have been having. That would involve public meetings on the island, letting people know and contacting off-island people who have a property interest on the island—all that sort of thing. It would be a common-sense approach to have contact with people who have a legitimate interest in the island.

Ms CHAPMAN: Now that we have this new-found definition of proposed expertise and experience as you describe in this amendment and that there will be some approach to consultation, is there any anticipated intention by the government to appoint even the interim employees, any public servant? Is there any intention to do that pending this great common-sense consultation you are going to have and then who you are going to announce?

The Hon. J.R. RAU: I have not turned my mind to that because I think it is always prudent not to count one's chickens. In addition, we already have KIFA in place, and for the time being that is satisfactory in terms of giving the island a high-level engagement with the Economic Development Board and the cabinet. Assuming the legislation passes, I would then turn my mind to that, but I have no view about it at all presently.

Ms CHAPMAN: Is there any intention, minister, that the people of Kangaroo Island and/or the Kangaroo Island Council will be consulted as to who they get as the minister for Kangaroo Island?

The CHAIR: The commissioner.

Ms CHAPMAN: No, the minister, because the bill proposes that the commissioner has to be accountable to the minister for Kangaroo Island.

The Hon. J.R. RAU: It is difficult to say. My understanding of the way the system works is that the Premier allocates ministries, and I would assume that this particular ministerial responsibility would be no different and would be allocated by the Premier according to the Premier's view as to which of the ministers was most appropriate.

Ms CHAPMAN: I pause to clarify that because during the briefings I understood, minister, that it was proposed that you were going to be the minister for Kangaroo Island, and you may have had some indication from the Premier already that he would be expecting to appoint you in the event of this bill being passed. I assume that is your understanding of the situation?

The Hon. J.R. RAU: Again, I do not like to predict what might be in the Premier's mind. I think the working model for the time being has the Minister for Planning notionally there, but that is a matter for the Premier which might be changed if the Premier saw fit. There is nothing about this particular bill that makes it impossible for any minister, although I would have to say, just thinking off the top of my head, that the minister responsible for DEWNR would be a problem; otherwise, I think it could be anybody.

Ms CHAPMAN: In relation to the appointment of the commissioner, if the commissioner is a public servant and the commissioner issues a notice to a member of his or her department—a colleague or those who might be employed under him or her in their department—and there is a dispute as to the production of that information to the commissioner as the commissioner of Kangaroo Island, who gets first bite of the cherry to the Crown Solicitor's Office services—the commissioner or the employee?

The Hon. J.R. RAU: Interesting point. In the event of there being a dispute, I am advised that would ultimately go to cabinet and it might be, as occasionally happens where the government is vicariously liable for public servants but they are in dispute, that the engagement of external advisers might be appropriate. But that would need to be considered on a case-by-case basis. I would not expect that circumstance to arise, but if it did it would have to be considered in its context.

Ms CHAPMAN: In the event that an employee of the government is in dispute with the commissioner in respect of this process of giving notice and requesting material, if there is to be legal advice and/or representation given to the person who is in dispute with the commissioner, will those costs be met by the government?

The Hon. J.R. RAU: I think the answer to that lies in the existing guidelines. That really comes down to whether or not the person is acting within the scope of their engagement. If somebody is acting lawfully as a Crown employee and there is a dispute and they are potentially lined up by reason of being a Crown employee in that dispute, then the normal rules suggest that they would be either represented by the Crown or provided with independent representation. If, however, they step outside of that and they are behaving unlawfully or they are in breach of their primary responsibilities under the Public Service legislation or something, it might be that they are on their own. That is no different to what happens now.

For example, my understanding is that if, for instance, you have a police officer who is actually charged with a criminal offence occurring in the course of their duties, it is not appropriate for the Crown to indemnify that person; they are on their own. If it subsequently turns out that they did not commit a criminal offence, it might be that there is some indemnity provided in respect of some proceedings—Coroner's Court, for example. But those rules I would expect to be applied here as in exactly the same fashion as they apply everywhere else.

Ms CHAPMAN: I am not seeking, minister, to deal with obviously criminal conduct of an employee. I think that obviously speaks for itself that it would be a matter for a public servant or anyone else to get their own advice in that circumstance. What is being proposed here is that your commissioner is going to have a certain role in setting up management plans and serving notices to any state entities and/or councils and the like to have documentation presented to them. If that is in dispute, then the situation is that your commissioner is a public servant against a public servant. So, clearly we are not talking about criminal conduct.

We are talking about, for example, an employee in the department; let's use an example and assume that you appointed the head of the planning department (I think you have an acting head at the moment) as the commissioner for Kangaroo Island and he served notice on one of the employees in the planning department as the commissioner for Kangaroo Island to receive a document which he or she might think is subject to an FOI confidentiality whatever. Both of them want to get advice on the enforcement of that notice and, as a matter of precaution, the employee wants to get advice to deal with it. In the meantime, the commissioner says, 'No, I have served a notice. We are moving to stage 2,' which is to start putting in the report, the whole name and shame process, and obviously that would be something that would be unconscionable as far as the public servant is concerned, who is the recipient of the notice. So, you see the situation; it is not criminal conduct, but they are acting and they are not sure.

Frequently, advice is given and in fact I think generally there is a guideline that says unless there is a Treasurer's exemption—you might have this power as well, but at least the Treasurer has the power to say, 'No, we are going to give you permission to go out of the department and get independent advice.' Okay, we are not sure in those circumstances who is going to get the first bite of the cherry of the CSO services or who is entitled to go there first and the circumstances might indicate that it could change in different scenarios, but all I want is some assurance that those who do need to get independent advice and/or representation will have it, at your cost as such.

The Hon. J.R. RAU: Having had that explained as it has been explained, short of the criminal behaviour and suchlike, I can assure the member for Bragg it would be the case that the same rules would apply as already apply to public servants, which means they are either represented by the Crown or, where appropriate because of a conflict or some other reason, external advisers are sought.

Can I just add, too, that the circumstance that the member for Bragg has suggested may occur, I hope sincerely would not occur, because I would hope common sense would prevail. But if it were to occur, it would be no different to a circumstance that might already occur in any other agency now where a chief executive may direct another member of the agency to do something, and the other member of the agency might believe that the chief executive is acting unlawfully in making that direction. You would have exactly the same potential for conflict there now, and that is resolved if and when it occurs.

Ms CHAPMAN: The more common, to be fair, is not as we currently have in the Department of Transport where often the CEO is the commissioner for highways and commissioner of roads, for example, and can deal with the compliance of members of his or her department in various ways without having to necessarily even rely on the commissioner role. They have certain responsibilities and powers that go with it that give them some priority in setting out a railroad track or a road, that might overlap in other departments.

Perhaps a better example is to say that notices are given to an officer of the Department of Environment to provide some material in respect of a proposal in the Flinders Chase National Park, and that is refused. This is where we get to the crunch here. There is clearly, as you have already indicated, some friction between departments within the context of this bill. In those circumstances, will the recipient of the notice in another department, or in any of those other statutory bodies—some of which are a mirage in the desert at the moment, but let us assume they will exist in due course—be given representation at the cost of the Crown?

The Hon. J.R. RAU: As I said, that is my understanding; that is what happens now. The only question is: would one of them be represented by the CSO, or would neither of them be represented by the CSO because of the CSO being put in a difficult position?

Mr PENGILLY: I would just like to ask the minister, given the complexities of across-government agencies and knowledge of the Public Service, etc., how could the commissioner be anything apart from a current public servant or a former public servant? Given that the three big agencies over there are health, education and DEWNR, obviously—and a number of smaller ones operate around the place—how could the commissioner be anything apart from a current or former public servant?

The Hon. J.R. RAU: It is not intended by me that the person need be a past or present public servant, although it might be that a past or present public servant is particularly well-placed to do this job; I do not know. They could even be a former member of parliament.

Ms Chapman: Chloe.

The Hon. J.R. RAU: Whether Dean Brown, for example, wants to be involved in these things, I do not know. What I am saying is that I know—

Ms Chapman: Peter Lewis.

The Hon. J.R. RAU: There are suggestions coming thick and fast from the member for Bragg. I won't put that one on the Hansard.

Members interjecting:

The CHAIR: Order! Back to the—

Members interjecting:

The Hon. J.R. RAU: In deference to the member for Bragg, I will not put her last suggestion on the public record. Can I say this: what has become very clear to me is that, if you were to put a person who was unfamiliar with government in this job, there is a fair chance that that person would either not know where to begin, or get started and find themselves apparently unable to proceed because of barriers that appeared in their path, which a person a little more wily would realise could be easily dealt with.

This is more of a suggestion as to the sort of qualities that an appropriate person might possess. Undoubtedly, one of those qualities should be, in my opinion, a capability of comprehending how the public sector works, though not necessarily having been, or at the time being, a public sector person. There are many times where I have observed that people from the private sector do not understand how government works. That does not mean they cannot do good jobs and it does not mean they are not useful in some jobs, and it does not mean that a private sector person would not be an ideal person for this job.

However, a private sector person who did not have a clue about how government worked, given that the main function here is a coordination of government agencies, would be an unlikely best fit. This does not prohibit such a person, it just says: 'When you are looking for a person, just bear in mind that a lot of this is negotiating your way around government agencies, so having some idea of how they work would probably be handy.'

Mr PENGILLY: Thank you, minister. So, in essence, what you are saying (with the exception of Peter Lewis) is that you would indeed need to have some knowledge at either federal or state government—particularly state government, I might add, in this case—level, or an MP. That would be a vast part of the criteria for becoming the commissioner for KI.

The Hon. J.R. RAU: No. I want to make this really clear: I am not saying a member of parliament or a public servant is something that necessarily would have to be on the CV of any person applying for this job. Note also that we are looking for experience in the commercial sector as well. I am simply flagging in this piece of legislation that, ideally, just so everyone knows and it is sitting there, to put a person in here who does not have a clue about how government works would be dangerous—that's all.

Mr GRIFFITHS: I am still dealing with amendment 2, but if I can go back to clause 4, the included part, where I raised the point of the local MP not being part of the formal consultation. I recognise that the minister has talked about the fact that it could be deemed to be inclusive, given that it says 'people of Kangaroo Island'. However, immediately prior to that it talks about Kangaroo Island Council as an elected body. That is the reason I raise the point why an elected person, put in place to represent the views of others, is not directly included. I flag that there are no amendments from me on this one, and I recognise that. I had hoped there would be some acknowledgement on it but, as the minister has indicated, it is not his preferred position at the moment. I do flag that I will be putting amendments to the Legislative Council in relation to this.

Amendment carried; clause as amended passed.

Clause 7.

Mr GRIFFITHS: Terms and conditions of the appointment of the commissioner for Kangaroo Island. Minister, I do try to read these things rather diligently so I understand what the implications of the legislation are. I understand that we previously debated the skill set required, and this clause probably talks about the work ethic that is going to be required and what they will be doing. However, I do not notice anywhere where it talks about any level of performance review. Subclause (2)(f) talks about if the commissioner is incompetent or has neglected the duties of the position they can be terminated, but how long do you have to wait before that position is reached? Is it a matter of the minister waiting until the end of the term of the appointment or is there a three-month, six-month or 12-month review of performance?

The Hon. J.R. RAU: Good question and the answer is that in subclause (1) we talk about the commissioner being appointed on conditions determined by the Governor. It would be my intention that those conditions would not just be that you are there for five years full stop. It would include some sort of performance requirements and whatever which would be in the nature of the middle to senior level contract engagement you would expect in the business world or in the public sector. It might be that they need to be tailored to some degree according to who the applicant is, and such like.

It is my intention that there be the sorts of things you are asking about contained within the terms of appointment, it is just that it would be appropriate for those details of the terms to be formulated at the time that we had some idea who we were appointing rather than them being contained in the legislation. But I place on the record, and I am quite happy to say, that it would be my intention that just as senior public servants and others have performance matters built into their contracts so should this person.

Mr GRIFFITHS: While it notes that its conditions are determined by the Governor, that is inclusive to have meant the Commissioner for Public Sector Employment, or whatever that position is called now. Erma Ranieri I believe has been determined. So, that person will be responsible for making recommendations to the Governor on what those conditions should be?

The Hon. J.R. RAU: No, where it says 'determined by the Governor' that means that the position would go to cabinet. The terms and conditions of the contract of engagement would have to be signed off by cabinet and cabinet would recommend to the Governor that a position be offered on those terms and conditions.

Ms CHAPMAN: Just on the terms and conditions, I think there is about $1 million a year allocated now for the operation of this commission, and I assume that to be the proposed salary of the commissioner—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Does it? You would know, it is your budget, I am just asking. And it does not include the proposed salary of the commissioner, if it is a public servant in an existing position, unlike, say, our commissioner for social inclusion. I remember having his contract. It was an interesting precedent for you. I think he was paid $100,000 a year. He had to work six months of the year for the Premier and the rest of the time he could deal with the Catholic Church, etc. It is not a bad precedent actually but, in any event, he had a salary and then it was reviewed by the Premier and he increased the money.

So, what have you budgeted and if it is not in the $1 million a year already budgeted for how much will be paid—if it is a different amount to an existing public servant as to what else would they get, and if they do get any other benefits, such as house or travel allowance, because my understanding is it is proposed that they are likely to be living in Adelaide but will need to travel back and forth etc? Is that in the $1 million a year?

The Hon. J.R. RAU: I thank the honourable member for the question. The number which is there was intended to contemplate the appointment of the individual, in other words their salary and other emoluments, money to take into account travel, money to take into account the provision of an office presence of some description, though not necessarily a fully serviced independent presence, and some support of an administrative nature.

Ms Chapman interjecting:

The Hon. J.R. RAU: That is subject to negotiation but the idea is that the whole box and dice should be in that order.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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