HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-11-17 Daily Xml
Contents
Pdf Xml

Bills

Planning, Development and Infrastructure Bill

Committee Stage

Debate resumed.

Ms CHAPMAN: So I am on page 192 where the—

The CHAIR: Hang on a sec.

The Hon. J.R. RAU: I am just telling you that when we get there, I will be able to answer these questions. I am just saying that I do have answers but can we please just work our way through.

The CHAIR: Member for Bragg, we must stick to what we have. Do you have another question on clause 77?

Ms CHAPMAN: Well, I do not.

The CHAIR: Okay; we will move on.

Ms CHAPMAN: If the three areas that have been identified by the minister—I will just ask one of his staff to write down those four—

The CHAIR: I am sure they have already.

Ms CHAPMAN: —so that we can follow them in the debate.

The CHAIR: I am sure they have.

Ms CHAPMAN: Otherwise I will ask more on this clause.

The CHAIR: Well, you only have one more question.

The Hon. J.R. RAU: 191, 91, 97.

The CHAIR: Okay? You're writing them down, too, now, so no-one can make a mistake.

Clause passed.

Clause 78.

Mr GRIFFITHS: I am just looking for clarification. The possibility has been put to me that a panel appointed by a council is limited to five members, but that number of members does not apply to a panel appointed by the minister. Is that correct?

The Hon. J.R. RAU: Yes.

Mr GRIFFITHS: The obvious question becomes: why, then, minister?

The Hon. J.R. RAU: It is to do with the fact that when you are dealing with the state level panels you are going to have more matters, more complex matters, so it is advantageous to have more flexibility about that.

Mr GRIFFITHS: Subclause (1)(c)(ii)(A) and (B) provide that a minister may constitute a regional assessment panel if two or more councils ask for it or if the minister has consulted with the councils, but presumably if they have said no and decide to go ahead with it anyway. Is that the intent, and if so, why?

The Hon. J.R. RAU: Yes, it is. The preferred position would be that obviously this be done by invitation from the affected councils, but there may be circumstances—and I am not even going to speculate on what they might be—where it is in the interests of the development of a region that, in spite of the lack of cooperation between the two councils, it is appropriate for there to be a regional planning authority. Again, I am very loath to point fingers at particular councils, but can I say this in general terms: it is not unknown for adjoining councils to be quite hostile and antipathetic towards each other and lack cooperation, so much so—again, without pointing fingers anywhere—that a change in membership of the council at a council election sees an outbreak of sunshine and bonhomie between the two adjoining councils which previously did not exist.

Mr Griffiths interjecting:

The Hon. J.R. RAU: Indeed; from my point of view, this would be in extreme circumstances where a regional development was being impeded by a lack of some sort of coordinated regional thing and it was absolutely critical that something be done. I do not see that as being the norm. I frankly do not think we are expecting a lot of these things to pop up very quickly, but I can tell you about an example of where it might occur presently.

In the South-East, for example, we have a group called SELGA, who I think presently are getting on very well, although they have not always necessarily got on very well, but I think at the moment they are getting on very well, and they might conceivably come to us and say, 'Look, we're so happy in one another's company, given that we are in fact a region and that the division between Mount Gambier and Mount Schank, or whatever it might be, is rather arbitrary in terms of the line on the map, it would make sense for us to be coordinated in what we did.'

Clause passed.

Clause 79.

Mr GRIFFITHS: Minister, this is where you have the opportunity to appoint additional panel members and presumably for a short time, and I presume it is based on a particular application that is being considered by the panel. Is it envisaged that it would be limited to that time only and is there a cost? Presumably, there is a cost associated with that because they would bring particular expertise. Is that met from some form of additional budget?

The Hon. J.R. RAU: The cost would be met by the appointing authority, whoever that might be.

Mr GRIFFITHS: I missed that. What was that?

The Hon. J.R. RAU: The appointing authority would bear the cost, whoever that appointing authority might be, which might be the minister.

Clause passed.

Clause 80.

Mr GRIFFITHS: When it comes to assessment managers, is it one assessment manager per panel or can it be more? Or does 'managers' mean exactly that?

The Hon. J.R. RAU: There must be at least one, but it could be that council A has the same person as council B. It is just that there has to be one.

Clause passed.

Clause 81.

Ms CHAPMAN: Division 4 provides for accredited professionals. Does this include any provision for accreditation of private certifiers of developments?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Could you just take me through concisely as to how that would work for private certifiers? Is there to be some kind of party that approves what is the standard for who would qualify, who is to appoint or dismiss them or allow them to trade? Is there a registration procedure? How does it work?

The Hon. J.R. RAU: The scheme would be established by the government but the government might, for example, say that a person who is a member of the Australasian institute of engineers or a fellow of the Australian Institute of Architects, or whatever the case might be, is a person with the appropriate accreditation.

Ms CHAPMAN: I am just struggling to find where the rules are about who can be appointed, other than the fact that you allow for them under regulations made on the recommendation of the minister acting in association with the Commissioner for Consumer Affairs. I assume that is the Minister for Planning with the consumer affairs commissioner, which is really the chief executive of that entity. I assume from that that you might consult or take such advice as you might see fit as minister, but ultimately you make the determination; you set the rules about who gets in and who gets out and what the terms are. Have they been written yet, as to who would be a private certifier?

The Hon. J.R. RAU: No. This is one of the things that—

Ms Chapman: This is the shell of this arrangement.

The Hon. J.R. RAU: Correct.

Ms CHAPMAN: Is there any proposed fee that will be attached to—apart from all these penalties; I am not talking about those—how this is going to work? Is it going to be like medical practitioners or many other professionals who are required to be registered: they pay an annual fee, they are gazetted each year, there is a separate gazetting if they are struck off, etc.? Is that the type of process?

The Hon. J.R. RAU: I am advised that under the regulation-making power there would be a capacity to charge a fee for that process of being accredited. I am just going to find out exactly where that is. It is in the schedule dealing with regulations: schedule 5, I am told.

Ms CHAPMAN: Schedule 5—Regulations, page 195. I will deal with it then.

Mr GRIFFITHS: Local government and some practitioners that I have spoken to have concerns about private certifiers and the connectivity that exists and that it might create some dilemmas. Is there an opportunity for local government to be involved in the drafting of the regulations about private certifiers?

The Hon. J.R. RAU: Again, I am very happy to talk to them. The only point I would make though is that, if you have a look at the report from the expert panel, you would see that the reason why we have been moving towards private certification is to deal with the very problem the member for Bragg was addressing a while ago in her question about frustrations with delays and other things, where some local government agencies have become bottlenecks; and because they are the only bottleneck through which the application may pass, there is no alternative to the proponent other than to negotiate that bottleneck, no matter how unreasonable it might be. That is the historical context in which this whole notion of private certification has come up.

Ultimately, there is no obligation on a consumer to utilise a private certifier's services, and if the particular local government agency is nimble on its feet and provides a good service to its customers, I would expect that people would not need to have recourse to private certification, but in cases where people are meeting unreasonable frustration, we are providing an alternative method by which they can proceed with a project.

Mr GRIFFITHS: I can, indeed, quote a great example. The District Council of the Copper Coast has a five-day turnaround on category 1 developments and that should be pursued by all councils to ensure that that occurs. I understand from a building rules consent that private certifiers being involved is far more easier to manage, but it is from the feedback I have had from officers in particular about the planning rules and the local knowledge that is sometimes required about issues, not just on the property on which an application might be lodged but surrounding it also, that might impact upon it, that that is where the desire is to ensure that some local perspective is taken into account.

The Hon. J.R. RAU: Yes, I know, but part of the reason for that is we are now dealing with this arcane body of knowledge which is buried in 22,000 pages of planning material. Once that is condensed down to 30 or 40 basic building blocks, the argument about that proposal diminishes significantly. Let's bear in mind that—again this comes directly from the expert panel—at the moment 90 per cent of these applications are being merit assessed, whereas if you compare that to Western Australia, for instance, 10 per cent or less are being merit assessed.

So if you combine the two propositions I have just put—a system which is moving increasingly away from individual merit assessment and you add in the fact that you are moving from 22,000 pages of incomprehensible, arcane material to a universal planning library of 30 or 40 building blocks—I think the point that you raise, to the extent that it had any traction—and with respect to those who suggested that to you, I do not think it had a lot of traction, but it may have had some—that has been, if not removed, enormously diminished.

Mr GRIFFITHS: I just want to take up the point about the 22,000 pages of arcane development plan pages that are out there. The point from the member for Bragg is that 90 per cent of it—and it must be that at least—is common words, phrases and structures that are required by the department that you now lead and have been the case for decades. It is probably 10 per cent at best that represents the local vision that a community has where it should also be entitled to that. I think it is probably going to come out through the charter of community engagement that local vision be still retained within it.

The Hon. J.R. RAU: Other than to refer everybody back to the expert panel's report, that is probably the most I can say about that particular point.

Clause passed.

Clause 82 passed.

Clause 83.

Mr GRIFFITHS: I am looking for clarification on what clause 83(1) means when it talks about:

An accredited professional who has not completed the functions of a relevant authority in relation to a particular development may not be removed from his or her engagement as a relevant authority unless the Minister consents to that removal.

Then there is a penalty of $10,000 involved. I am unsure of what that actually means.

The Hon. J.R. RAU: I am advised that this is similar to the private certification rules under the current legislation, so it is simply, as I understand it, a replication. I am reminded that the 1993 planning review identified the issue of 'expert shopping', the idea that you get somebody who does not tell you what you want to hear and you sack them in order to find somebody who will tell you what you want to hear. The notion is that if that sacking is going to occur it should be for a reason that you can justify to the minister, as opposed to, 'This person is not giving me what I want.'

Ms CHAPMAN: I certainly hope it is not going to be applied to other professions—to think that we are going to need ministerial approval for someone to engage somebody and dismiss them. They might not like them, they might be sloppy in their presentation; there might be lots of good reasons to get rid of lawyers or doctors or anyone else who is not providing a good service.

I find it rather curious that we have this provision, where the government says on the one hand, 'Look, we will allow the choice of people to use a private certifier. It might in fact encourage the public instrumentality, namely, the council of the day, to make sure they provide a good service and they might attract it.' On our side of the house, we actually like choice. If you have appropriate protections, it is reasonable that people have that option.

I find it rather bizarre that we have a situation where, if someone engages that person, pays a fee and finds that they are not satisfactory, or in fact that the person, to use the words of the clause, 'has not completed the functions of a relevant authority' presumably to finalise a report or whatever—there does not seem to be anything else other than incompetence—they cannot go unless the minister consents.

It is just bureaucratic nonsense to me, especially as it comes with a $10,000 penalty. Be that as it may, I have made my point in that regard. It is clearly a point of difference between our side of the house and the other, where we support that. It is a little bit like saying—

The CHAIR: Is there a question, member for Bragg?

Ms CHAPMAN: No, I am saying—

The CHAIR: No, is there a question?

Ms CHAPMAN: There is a question.

The Hon. J.R. RAU: Can I just answer this question?

The CHAIR: No, I am in charge. I am asking what the question is.

Ms CHAPMAN: It is claimed it is following some 1993 review of this. What is the penalty for, presumably, attempting to dismiss somebody without the consent of the minister?

The Hon. J.R. RAU: Can we just get clear in our mind the function of this person. I know analogies are always dangerous, but I am going to take the risk of using one. If you look at the legal profession, ask yourself: what is the relationship between the client and the lawyer? The answer is that the lawyer is the client's servant. The lawyer owes a duty to the client to act at all times in the interests of the client.

Ms Chapman: Acting on instructions.

The Hon. J.R. RAU: Yes, indeed, acting on instructions. If you do not do that, you wind up in front of the—

The CHAIR: Hang on, let's go back to the clause.

The Hon. J.R. RAU: Just so it is really clear, the function of this assessor or expert is not to be an advocate for the development applicant. Their function is to be an assessor and, using the analogy of the courts, they are the judge or the magistrate, not the lawyer. In the courts, as the member for Bragg would be very well aware, in order to deal with a judge, whom you may or may not like, it is considered both unethical and not okay even to attempt to engage in forum shopping or judge shopping.

Indeed, in relation to the rules in relation to what needs to be satisfied in order for an application for a judge to disqualify himself or herself, I am looking here at a case of Johnson v Johnson (2000) 201 CLR 488 [11], which has been reaffirmed in various other cases. It goes through the sort of bar that needs to be discharged before you remove an adjudicator, as opposed to somebody who is your servant. Saying that you cannot just sack willy-nilly a private certifier is basically similar to saying that you cannot sack willy-nilly a council planning officer just because you do not like what they are saying, because these people are sort of doing the same job.

Ms CHAPMAN: How does it then apply? You are using an example of when you are looking down the barrel at having a decision made that you do not like and you want to get rid of somebody, and you want to find someone else who will assist you to get a better situation. What if you want to discontinue the application? We have a situation here where you will not proceed with the application at all and you have to go along and get the minister's permission to—

The Hon. J.R. RAU: That's not what it says: it says 'to remove—

The CHAIR: Order!

Ms CHAPMAN: Let's look at the reading. It says 'a person who has not completed the function', so the party has to have not finished, and then they cannot be removed from his or her engagement. So, if you say to them, 'I want to withdraw my application, I don't want to build this hotel any more, I want to terminate your instructions to proceed with this,' how is that excluded from the liability of a $10,000 fine?

The Hon. J.R. RAU: First of all, again the honourable member is misunderstanding. It is not 'terminate my instructions,' but, 'I want to terminate my application,' and if they terminate their application it would be in the terms functus officio because the withdrawal of the application renders the application at an end. That does not see the person at risk. It is not that they have not completed the functions—the functions are no longer required at the request of the applicant.

The CHAIR: Order! Last question.

Ms CHAPMAN: Here is the problem, though, minister, when someone is facing down the line of not having a right decision. As you say, we cannot just sack these people because they are an adjudicator, and I understand that. But, even if you can foresee that, and you think that you are on a thrashing to nowhere, and you think that you will withdraw your application now, advise them you do not want them to do this any more, they will be removed from their engagement as the relevant authority.

It does not say who removes them; it is by the act of indicating of withdrawing the application that they will then be facing that vulnerability. If you say (and we will put it here in Hansard) that in those circumstances that would not be treated as a removal, even though it would be prior to the conclusion of their function as a relevant authority, that they would not be faced with that situation, even if it is a situation where the applicant fully acknowledged that they thought, 'I am not even going to go any further because I know I am going to get smashed here, so I'm not going to progress it,' that they would be protected against a fine of up to $10,000, then I will take that, but I would like it on Hansard.

The Hon. J.R. RAU: That is the way I understand it: you are not proceeding with the application, there is nothing to be done.

Clause passed.

Clauses 84 to 86 passed.

Clause 87.

Mr GRIFFITHS: Can I get clarification, minister. Where a proposed development is classified as a restricted development, I read this as saying that it is called in by the commission. Is it that it is or that it may be called in by the commission? It says 'will'.

The Hon. J.R. RAU: Where it is a restricted matter, the primary function falls on the commission, though the commission may (and I think it is set out elsewhere) determine in a particular case to delegate that decision to another entity, like a council, for example.

Mr Griffiths interjecting:

The Hon. J.R. RAU: Yes, the primary consideration. It goes initially to the commission, and the commission may say, 'Well, if we're going to entertain it, we can do it ourselves, or we can say that we're happy to delegate it down to a council, for example'.

Mr GRIFFITHS: I appreciate that, and I understand it a more clearly now. Given that historically the council assessment panels in whatever form they have been have sometimes considered rather expensive, large-scale developments, is this a greater level of control potentially by the fact that, if it is in this 'restricted development' definition, automatically it is part of the commission's responsibility?

The Hon. J.R. RAU: I am advised that this is about slimming down the bureaucracy because at the moment we have large lists of noncomplying and we need concurrence from DAC and the other assessing authority. First of all, there will less of that—well, there will not be noncomplying in that terminology, and so there should be less bureaucracy attached to this process.

Clause passed.

Clause 88.

Ms CHAPMAN: I would like some clarification as to what is an 'impact assessed development' other than a restricted development for which, of course, the minister becomes the relevant authority. There is no definition of an 'impact assessed development' in the definitions section. There may be somewhere else in the bill but I am not sure where it is. With 'restricted development', I thought, I may have read it in some—

The Hon. J.R. RAU: It is clause 101, under impact assessed development, page 78, and we will be there shortly.

Ms CHAPMAN: Page 78. So could you give me an example of what you would be doing as the authority assessing?

The Hon. J.R. RAU: It is not dissimilar to the present major project provision where we are actually engaging the commission to do the work. The commission provides advice to the minister and the minister then makes a determination based on the advice.

Ms CHAPMAN: We are going to have a new commission and they are going to have their job; and we are going to have these other relevant authorities in certain categories. So I am at page 78, and I am looking at 'restricted development'.

The CHAIR: No, we need to deal with clause 88.

Ms CHAPMAN: No, but you mentioned that, and that is why I am asking, and I am going back to clause 88 and it says—

The Hon. J.R. Rau: I have just explained that is where you find the definition.

Ms CHAPMAN: I will ask you again then, because where is 'impact assessed development'? I can see where 'restricted development' is defined on page 78, but where is 'impact assessed development' defined?

The Hon. J.R. RAU: Clause 101.

The CHAIR: So we are going to move clause 88 because the matters you are referring to are further down the bill.

Clause passed.

Clause 89.

Ms CHAPMAN: When you do your assessments as the relevant authority, minister, who is going to actually be doing the work for you when you do your impact assessed development under clause 88?

The Hon. J.R. RAU: The department will work with the commission. The commission will provide the minister with the advice. The minister will make a decision.

Clause passed.

Clause 90.

Mr GRIFFITHS: This all leads to the discussion about certifiers that we had before. The request put to me by the Local Government Association is that, where certifiers from a planning viewpoint are involved, it is for more of a lower-level application which would currently be defined as category 1; or is the intention for the private certifier to act across the full spectrum of applications that will be considered?

The Hon. J.R. RAU: Bear in mind the regulations under the Development Act basically permit this already for pretty well any category of development, but it would be an expectation that we would start off at least with pretty simple matters and see where we go from there.

Mr GRIFFITHS: It started off by the regulations, and determining whether—

The Hon. J.R. RAU: Just by way of background, the capacity to do this in respect of any assessment already exists in the current act under the regulations. That is not, in itself, a new thing. This is basically just moving it from the regulations into here. As to what would happen, initially, as people get their heads around these things, we would start with what you have described as a category 1 type thing. This is at the beginning, but there is no reason why, either from a practical or from a conceptual point of view, it should not extend beyond that in due course.

Clause passed.

Clause 91 passed.

Clause 92.

Mr GRIFFITHS: This was put to me. Where a substantial amount of the work involved in an application may have been approved by a different authority or certifier, and then it goes to local government (as it currently does) in the expectation of accepting the decisions made by the other level, they have great concern about the amount of time spent in actually checking that to ensure that the decisions made are appropriate, and the fee return they might get for that. Is that one of the implications for this?

The Hon. J.R. RAU: I think the answer is that fees-wise they will not have the same fees, but the good news is that they will not have anything like the same amount of work to do either. So they do less and they get less in fees.

Clause passed.

Clause 93.

Ms CHAPMAN: Regarding delegation of powers, it is not unreasonable, in most legislation, for those who are the acting or assessing authority to have powers of delegation. This is about as generous and general as I could ever see; essentially, it means that if you do not want to do one of the impact assessment developments which ordinarily come before you, you can delegate it to the commission, you can delegate it to a council, you can delegate it to Mr Bloggs. It is very general.

In the level where we have a fairly strict structure as to who is going to be responsible for what, for all the reasons you espouse, the importance of having legislation to deal with the smaller matters in a timely matter, obviously we power up the structure, usually according to the value of the development that is being considered, and certainly if it has a major social impact. I understand all that, but generally we have some restriction on this.

In the sense of the delegation there are limitations on who else it can go to; when we are dealing with the police commissioner, for example, it has to go to another senior officer, or be delegated only to persons of certain qualifications and the like. For all the particularity of identification of the structure to meet the level of complexity of applications, it seems to go out the window with this clause. How is this going to be managed and restricted so that it is not abused?

The Hon. J.R. RAU: First of all, I am told by parliamentary counsel that this is a standard delegation clause. It appears in this form elsewhere. This is the normal delegation provision that parliamentary counsel uses. Secondly, because there is potentially an enormous range of matters of varying scales of complexity it is useful to have a very flexible delegation authority which can be varied from time to time.

I think the real danger is that if we start particularising delegations here, this section would turn into about 30 sections, and even then we could not necessarily anticipate every detail. So I am told that this is a general utility provision relating to delegations.

Mr GRIFFITHS: Can I just get some clarification? Given that 'relevant authority' includes private certifiers I presume, and I would presume on a lot of occasions they are not a part of a larger company but indeed might be an individual acting under their own business, how can you delegate that unless you engage a completely different company to actually undertake the work for you?

The Hon. J.R. RAU: We would see that as being regulated through the code of conduct obligations for those people.

Clause passed.

Clause 94 passed.

Clause 95.

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

Amendment No 20 [Planning–1]—

Page 76, lines 1 to 4—Delete subsection (10) and substitute:

(10) An encroachment under subsection (1)(d)(iii) or (e) must not interfere with a property right without the consent of the person who, at the time that the consent is granted, is the holder of that right.

(11) In addition—

(a) subsection (10) does not apply in relation to an encroachment over public land; but

(b) in the case of public land, the entity that has the care, control and management of the public land may impose a reasonable charge on account of the encroachment when the relevant development is undertaken.

(12) In this section—

public land means land that is under the care, control and management of—

(a) an agency or instrumentality of the Crown; or

(b) a council or other local government agency.

Mr GRIFFITHS: I refer to subclause (11)(b) 'may impose a reasonable charge'. There are a lot of words in here that we will talk about later on where it is an objective assessment on things, but what is a 'reasonable charge'?

The Hon. J.R. RAU: 'Reasonable charge' was already there. What we are trying to do with the amendment is to make it clear that it is not going to be interfering with private property. In other words, without the consent of the individual it would only be applicable to public land—footpaths, etc.

Amendment carried.

Mr GRIFFITHS: I refer to page 75, subclause (7). The issue was put to me that this does create an opportunity for a staged planning consent to actually be granted, because it talks about more than one authority being involved in that and the complexity that that leads to. There is a concern from the local government perspective of where it might be an accredited relevant professional that might do it in the first instance and then council is involved in the second instance, and the confusion that might exist over that. Is that something the minister has considered?

The Hon. J.R. RAU: This subclause is actually innocuous, though it appears here. The clause was part of that planning bill that I brought in a while ago to address the pay or judgement, and you will remember I did not proceed with that because there was some controversy about that. This is the solution which I am advised by all of the best brains in the business is the best solution for that particular problem.

Mr GRIFFITHS: So four lines replace the bill that the minister presented to the parliament mid last year?

The Hon. J.R. RAU: Subclauses (6) and (7) probably should be read together, but the reason I did not proceed with the other bill, and I think I mentioned to the—

Mr Griffiths: You did withdraw it, though.

The Hon. J.R. RAU: I did withdraw it, because it was brought to my attention that that might cause more trouble than it was attempting to fix. So, I have gone off to all of the people who know about these things and I am told that this is a more elegant way to deal with that matter.

Ms CHAPMAN: I have a question in relation to subclauses (6) and (7) where we are starting to preface clauses with 'To avoid doubt'. These are often in explanatory notes that go with drafting. I am always amazed as to what curious language is introduced into these pieces of legislation, because I would have thought every single clause in a bill is to avoid doubt: it is to specify what the provision is. Is this some new approach that we are having where it is put into the substance of the act and not just as an explanatory note?

The Hon. J.R. RAU: I will try to give as succinct a description of the background to this as possible. The so-called payor problem, I am advised by eminent lawyers, was a problem which was a problem of perception rather than legal reality. It arose, as sometimes does in this area, from entrepreneurial legal personalities in certain firms advising people about certain things which then became the conventional wisdom and, irrespective of what was in the legislation, everyone behaved as if that advice in some way had rewritten what was there or what was not there.

These things are to say to those people, 'Hey, you, just so it is really clear, this is what we mean. It is not that other piece of advice you got from a certain group of people that has meant the whole industry has gone off on this sort of tangent. This is what we mean.' It is meant to grab people's attention because the whole payor issue, as I understand it, arose out of a misunderstanding which was initially put into the minds of people by some advice, and the top thinkers in this area including, I think I can say on the record, Mr Hayes QC, told me there is no payor issue. The judge in that particular matter—Judge Cole, to whom I have apologised for the remarks that were made in the context of that, and I repeat that apology—did not make a mistake. You need to sort this out in a different way, and that is the response.

Ms CHAPMAN: Usually, what happens though, minister, is that we are frequently asked as a parliament to tidy up errors in law, misunderstandings, some apparent body of knowledge that has come out of the wisdom of one practitioner that has given an unfair perception and, therefore, given people expectations that are unrealistic—all of those things. We come in here, and we fix it up.

You, as the Attorney or as the minister, stand up and say, 'To be absolutely clear, to avoid any doubt, we are introducing this statutory provision,' to either exclude or include a certain entitlement, right, obligation or penalty or the like. We do not add 'to avoid doubt' into the bill. I just want to know why this has come about as some kind of new lot of grammar.

It is frequently at the bottom of a footnote, which I cannot say I am too partial to either because I think that just highlights examples which usually turn out to be a problem more than being helpful when it comes to legislation. I just do not like this sort of language being in there when, in fact, every single clause is to avoid doubt, hopefully.

The Hon. J.R. RAU: I understand the point, but I am advised by parliamentary counsel that even the 2007 version has this type of language sprinkled within it. This is an artefact of drafting, and I defer to the experts in terms of clarification of drafting matters. It is their view that this is the best way to achieve it, so that is I think as far as I can take that.

Mr GRIFFITHS: I am seeking some clarification on subclause (3), minister, where it states that a relevant authority on its own initiative or upon an application may reserve its decision. The Property Council and the UDIA approached me, and I think they put to you that it should not be the relevant authority that makes the decision on its own initiative: it should be based upon an application only. Has the minister given thought to that request?

The Hon. J.R. RAU: I think the view is that we are certainly not excluding the notion that it should be on the initiative of the applicant but, if we have a good forward-thinking proactive authority who says, 'Look, you can get on with this and we can deal with this matter later,' I, frankly, cannot see any harm in allowing them the opportunity to do that.

Ms CHAPMAN: Can you just clarify what happens when later in the act we come to certain default provisions that kick in if things are not done within a month or a certain time period? Does this override that? How do we identify whether, in fact, the authority is using its powers under the proposed subclause (3) to reserve its decision, and in fact, therefore, has the effect of breaching the time requirements that would otherwise kick in, or successfully avoids it?

The Hon. J.R. RAU: I am advised, and I understand, that in practice this would be: your application is approved subject to you doing X, Y and Z.

Ms Chapman: It doesn't say that.

The Hon. J.R. RAU: No, but that is what it is for. This does not interact with the other time limited aspect that you are talking about. That is about the making of the approval in the first place. This is saying that we have an approval but the approval has attached to it a number of triggers or conditions. The approval is already done. The accelerated time line, or the time-limited aspect that the member for Bragg was asking about, goes to the question as to whether or not the approval is given. This is post approval.

Ms CHAPMAN: It does not say that. It says 'in relation to granting a planning consent', and then it goes on to say 'reserve its decision on a specified matter', which may cover the types of things you are talking about, 'or reserve its decision to grant a planning consent'. So, in fact, it is right at the nub of the actual application. Perhaps this needs a bit of tidying up as well because it seems to me that we are going to have some inconsistency.

Clause as amended passed.

Clauses 96 and 97 passed.

Clause 98.

Mr GRIFFITHS: Minister, you talk about 'code assessed development', the Planning and Design Code and 'deemed-to-satisfy development'. I am intrigued as to why the two terms are used.

The Hon. J.R. RAU: There are two elements to the code. The code will have a performance-type narrative and it will have a prescriptive narrative about 'deemed-to-satisfy'. The building can be 20 feet high. That is a deemed-to-satisfy. If you have 20 feet, that is it, 'deemed-to-satisfy'. There would be a performance version, perhaps, of that same thing which says that the building must do X, Y and Z, but that is assessed against the performance criteria in the code. So 'deemed-to-satisfy' is where the code has these alternative routes to home.

Clause passed.

Clause 99.

Mr GRIFFITHS: This is a concern I have had for a long time. Under subclause (2), in the second line it talks about '1 or more minor variations'. It is an objective assessment of what a minor variation is that worries me about it. Is there any form of definition or guideline that can be attached to that?

The Hon. J.R. RAU: Earlier on, the commission can issue practice guidelines—clause 43.

Mr GRIFFITHS: So we can work on the basis that a practice direction or a practice guideline would be issued which would give a definition as to what a 'minor variation' would mean?

The Hon. J.R. RAU: Correct.

Clause passed.

Clause 100.

The CHAIR: We now have amendment No. 21 in amendment schedule 1 in your name, which you are moving, Attorney.

The Hon. J.R. RAU: That one I am not proceeding with.

Mr GRIFFITHS: For clarification, minister, to benefit others at a later date, can an applicant proceed to construct those elements that are approved in advance of the development as a whole? Has consideration been given to whether this causes an issue of partially developed land down the track?

The Hon. J.R. RAU: You either basically have a consent or you do not. The fact that you have elements that are deemed-to-satisfy, if they do not give you the complete picture you still do not have a consent. So, if you have something which has elements which are deemed-to-satisfy and elements which are still performance elements, you need a tick on all of those.

Let's say you need five boxes ticked and you have three as deemed-to-satisfy. If you do not have the other two, which are performance-rated things, ticked as well, you do not get the consent. You do not have a consent until you have a consent, and you need all the ducks in a row before you get the consent. So, the deemed-to-satisfy is more about what elements of it you have ticked off.

You will see, when we get to the question about how much can be re-agitated, that at the present time we say that if you have your proposal 90 per cent right and there is 10 per cent wrong you have to go back to the beginning and start again. Under this, we say that you get to keep the 90 per cent that you have got right and you have an argument about the 10 per cent that you have not yet got right. It is consistent with sections that come later about that. It is consistent with the way the Building Code works as well.

Mr GRIFFITHS: The reason I ask is because of an earlier reference, only 15 minutes ago, about the staged approach and that there might be several consents involved. By association, one would presume that a consent would provide an opportunity for a partial development of an eventual full site too. So, that is the reason why I asked the question, to see if there are concerns there.

The Hon. J.R. RAU: In my example about five, if you had two of them already ticked off, the authority might say, 'We will let you commence works subject to ultimately being satisfied or approving those last three.'

Mr GRIFFITHS: That is okay when it is the same authority, but if it is not—

The Hon. J.R. RAU: One authority will issue the planning consent.

Clause passed.

Clause 101.

Ms CHAPMAN: This is the impact assessed development, which is your domain, minister; these are potentially your babies. I think from what you said before this will assist me in identifying what is an impact assessed development. I have read it and I am not sure that it does assist me, firstly, because it is an impact assessed development if it is classified by the planning and design code—and we have not seen that so I do not know what that is—or classified by regulations as an impact assessment development, which I assume is by you—and I have not seen any of those—or it is declared by you, which I assume also to be under the regulatory power in some way as an impact assessed development. It might be under some different process other than regulation. What are these things? If they are similar to what have been major project status applications in the past, how many major project applications have you declared since you became minister, and what are they?

The Hon. J.R. RAU: In answer to the second-to-last question: yes, it is like major projects. There are two things which sit broadly in the public mind in the category of major projects. One is infrastructure, which might be construction of a port or whatever it might be; then you have others which may or may not be in that sort of classic infrastructure space. For example, some people might want to do a housing development and want it declared a major project; some people might want to redevelop a factory and that might be declared a major project. In fact, I can think of one right now.

However, during my period as minister I have taken a view on major project status, and I think I have said on many occasions that I cannot foresee a circumstance in which major project status should be utilised to approve a residential development, and I have behaved accordingly.

I have granted major project status to a number of what I would call infrastructure proposals: just off the top of my head, things like the proposed desal plant for the BHP Billiton expansion of Roxby Downs which would have been at Port Bonython, or somewhere. There have been two or three or four port proposals on Eyre Peninsula. Sheep Hill is one that comes to mind—

Ms Chapman: None of them have gone ahead.

The Hon. J.R. RAU: No, but you were asking about whether the—

Ms Chapman: You declared them as major projects.

The Hon. J.R. RAU: Yes, and there is a difference between making the declaration and actually completing the process of the declaration. I am advised that you might do two or three a year.

Ms Chapman: Have you done any?

The Hon. J.R. RAU: I am sure I have; I just cannot tell you. I can come back to you with them but I can tell you the only ones I have ever even commenced have all been things like building a port or something of that nature. For example, the desal plant for BHP Billiton was not only a major piece of infrastructure but it required a very extensive environmental impact regime to be attached to it. The major project vehicle has the most rigorous environmental impact process available in the state planning regime.

I can get back to the honourable member with the ones that have been done. I have dispensed with a few which were sitting there when I came into my position because, after asking the individual people whether or not they had any intention of proceeding with them and whether or not they had the capacity to proceed with them, I was ultimately advised by some of them, 'Well, actually we can't,' in which case I took it off the books, or they said, 'We won't,' or, 'We're not going to say,' or whatever the case might be. If you leave it there, that acts as a blocker for other people who might seek to invest in that area but are frightened to do so because there is the potential of this major project coming in and gazumping them; so it is not a good idea to just leave them there doing nothing, in my opinion.

Ms CHAPMAN: I look forward, minister, to hearing of the major projects that you have approved in your time. I cannot think of any, actually. I think your predecessor, the Hon. Paul Holloway, gave them out like confetti. Nevertheless, that is not to say that some were not meritorious in their application, but I look forward to seeing your list. The BHP example you gave, of course, under the indenture was required to undertake an extraordinary amount of environmental impact statement work both for the state and for the federal authorities. I do not put it in that category in the sense that they were looking for the protection of an indenture to give them a 40-year cap on their royalties and all these other things, and it was over a massive area. Unsurprisingly, it would have a regime of regulatory oversight that would be as strict as would be expected.

The Hon. J.R. RAU: Can I just respond to that whilst the member for Bragg thinks about that other matter? I have, I think, been a bit more sparing in the use of these. The good thing about 101, and I think it is a very important step forward, is that, rather than everything being at the discretion of the minister—at the moment what happens is the minister has to be convinced that there is a warrant in a major project declaration and then the process either proceeds or it does not. That has the impact of everybody, particularly the uninformed, forming the view that the minister necessarily by doing that is saying that the minister will, come hell or high water, make sure that winds up getting approved.

Ms Chapman interjecting:

The Hon. J.R. RAU: No; I know that is not what it means, but that is the way it is perceived out there by many, I can assure you. This basically says that, once these regulations are in place—the regulations might say, for example, that ports, nuclear power stations, desalination plants, airports, for argument's sake—they will be impact assessed unless the minister says they cannot be, or will not be, or whatever the case, and the only way anything else can be impact assessed is to flip the whole thing around. We are putting up in the public domain in regulations, so that everyone can see them, in future the sort of thing you can expect to be impact assessed at these things, and by inference if it is not on that list you should ask a question as to why the minister of the day is making it impact assessed, and the minister of the day should be in a position to explain to you why, even though it is not in that list, it nevertheless warrants being impact assessed, if that makes sense.

Ms CHAPMAN: So, of the projects that you are currently managing, I appreciate you have indicated you are not in that space of just willy-nilly approving these things, even though I think it is fair to say that if a major project assessment is granted it does set out a very rigorous process of assessment, in fact some would argue a much more expensive and prolonged process than is necessary even if there has been this perception that it would have the imprimatur of the minister as it progresses. What then would possess you to indicate that something like a golf course on Kangaroo Island should have major project status?

The Hon. J.R. RAU: Kangaroo Island is probably a really good example. I have been out to the site on Kangaroo Island and I am sure the member for Bragg has been there too. It is a coastal area. It has quite sensitive ecological linkages there—

An honourable member interjecting:

The Hon. J.R. RAU: No; I know it is only limestone, but there are some interesting plants there and lots of small, furry animals. Given that Kangaroo Island is quite properly treated as such an environmentally sensitive area, to the best of my recollection the reason I thought it was appropriate for that process to be used was exactly for that reason. Not only is it the case that I regard it as being an important area from an ecological point of view, but it is quite possible—and I would have to check—that the commonwealth EPBC legislation might have something to say about that project. If we are going to have any hope of aligning those two things, the only vaguely compatible instrument or management tool we have is that sort of declaration.

The CHAIR: Is this another supplementary to your supplementary to your third question?

Ms CHAPMAN: Yes, it is.

The CHAIR: Okay, and then it is the member for Goyder, who looks like he is ready to ask a question.

Ms CHAPMAN: Is it the intention of the minister that all applications for development on the coast of Kangaroo Island, or indeed on the coast of anywhere where he considers it a sensitive environmental impact, will be declared a major project? What is the criteria upon which you are going to deal with it? Does it have to have a sea bird or a particular plant that is at risk, because we have the longest coastline of most states (other than Western Australia) in the country. It beggars belief to think that you would be attaching some kind of suggestion that major project status is necessary for coastal regions. I am happy to list other coastal developments on Kangaroo Island that, during your time, you have not actually moved in that way.

The Hon. J.R. RAU: Can I just say this: it is always a question of degree as well. A relatively small development is a completely different impact concept to a larger one. This is a larger one. It is not just the size of the golf course; there are issues about retention of water, about a whole bunch of other things that go with this particular project. The second point is that, from memory, I do not think the planning regime on Kangaroo Island had any capacity to deal with this particular type of development, because I think—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, but I do not think there were planning rules there which would have catered for this. This would have been noncomplying.

The CHAIR: The member for Goyder has a question.

Mr GRIFFITHS: If I may just seek clarification, given that we are talking about major projects. Minister, when you talked about one that has been on your looks for some time, is it one that has been there for about eight years and a project that the member for Newland and I are both aware of; that is, to the north of Adelaide and defined as being in the Samphire Coast area?

The Hon. J.R. RAU: It could be.

Ms Chapman: Buckland Park?

The Hon. J.R. RAU: No, Buckland Park is different.

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I didn't.

The Hon. T.R. Kenyon interjecting:

Mr GRIFFITHS: And nor did the previous director of the department of environment.

Ms Chapman interjecting:

The CHAIR: Are we back on the bill or are we talking about other things?

Mr GRIFFITHS: I need to put this on the record because it was put to me very recently by one of the co-owners of the property—

Members interjecting:

The CHAIR: Order! The member for Goyder has the floor. Off you go.

Mr GRIFFITHS: I just seek to put this on the record because it has been put to me by one of the co-owners of the development that we are talking about that, as part of the major project status declaration made some time ago, there was an indication of a commitment for the sale of crown land associated with what the development would be.

The Hon. J.R. RAU: I can assure you that, in relation to that—we are straying quite a bit off the track here—

The CHAIR: I know, I am trying to bring you back.

The Hon. J.R. RAU: —I have given no commitment to anybody about a sale of any crown land, not least of which because I am in no position to give such an undertaking, even were I minded to do it. To be the planning minister and to give that indication does not sound like the sort of thing I would do. I can assure you that I haven't, but I have made inquiries about that land and the information I have had about that land consistently has been—because I have asked questions of the department of environment, about what they thought about that particular land, and they had quite particular views about that land, which did not involve it being sold for a particular purpose.

The CHAIR: The member for Finniss has a question on clause 101.

Mr PENGILLY: Minister, I find the major project status interesting. I am actually a supporter and I go back a fair way on that, where the Bailey-Smith family came to me when I was mayor in another place and wanted to do the Southern Ocean Lodge. I said, 'Why are you wasting your time coming to see the council; it will never happen.' I made an appointment for them to see Paul Holloway, and the rest is history. It was likewise with the Makris project which unfortunately fell by the wayside. As to what they originally proposed at Victor Harbor, where that will go is now up for some debate.

I picked up on what you said a while ago in part of the dialogue you were having with our side of the chamber where you said that it can take longer and be more expensive. I am wondering how you see the opportunity to fine-tune the major project status so it does not get bogged down.

The member for Bragg talked about the golf course on the island proposal and I note you picked up on the EPBC provisions of the feds. I think that more often than not some of these extreme environmental groups use the EPBC to delay things even further and slow things down. I want to see things happen across my electorate and across South Australia, so I am wondering how you view the major project status, while you are still in the planning minister role, in getting things moving quicker rather than having them held up.

The Hon. J.R. RAU: I thank the member for Finniss for that and can I acknowledge that the Southern Ocean Lodge that he referred to is an outstanding project. It is an international scale project, not just a South Australian scale project—

Ms Chapman interjecting:

The Hon. J.R. RAU: Anyway, there are two things I would say. The delaying tactic point, I get completely. The only point I would make to the member for Finniss is that if we could have the commonwealth and the state process running in tandem, rather than have one and then start the other afterwards, that is infinitely better than having the two of them running separately and one after the other. That is one point. The second point as to whether we can streamline matters, if you go to the next section we are looking at,102, that is intended to do precisely that.

Mr PENGILLY: Following on from that we have this ridiculous situation at the moment with this golf course proposal on the island where the local environmentalists are up in arms about the possibility of having kangaroo culls there and they are trying to slow it down. I have never heard anything more damn stupid in all my born days, quite frankly. There are more kangaroos and wallabies out there than you can poke a stick at, but why I am discussing this with you—

Members interjecting:

The CHAIR: Order! Everyone is a bit excited. We are still listening for the question from the member for Finniss, who is winding his explanation up.

Mr PENGILLY: How do you see your role—and I am only using that as an example—in actually trying to get rid of this nonsense to speed things up?

The Hon. J.R. RAU: As I said, I am a very big supporter of providing economic opportunities on Kangaroo Island, but can I say that when we come to section 102, which is the next one, there are bits in there about the fine-tuning which might be of some comfort to the member for Finniss.

Mr GRIFFITHS: I have a question that relates to subclause (5), the second line, and the word 'project', which is not defined in the legislation. The Property Council has forwarded me this concern. It ought to be defined at some point because it essentially broadens the definition of development which the minister now controls. There is not so much a problem about the extended degree of control, but defining exactly what is or is not controlled by the system. There is no right of appeal to the applicant. This should be changed so that applicants can appeal these decisions as well, especially given how wide a range of developments this could cover.

The Hon. J.R. RAU: It is judicial review only of this. This is an exercise of discretion by the minister at the present stage. If the minister has miscarried in the minister's decision then so be it. The other point is, I am advised, that there are some other activities which may not be defined as development within the meaning of this act but, nevertheless, require an EIS for some other reason.

Ms Chapman: Like what?

The Hon. J.R. RAU: Mining.

Ms Chapman interjecting:

The Hon. J.R. RAU: No, no.

The CHAIR: Member for Bragg.

The Hon. J.R. RAU: Just to make the point, in New South Wales, for example—

Ms Chapman interjecting:

The Hon. J.R. RAU: Can I just make this simple point? In New South Wales, for example, I was talking to a minister there the other day who said to me that their mining regime sits within their development act. They do not have a separate mining act.

Ms Chapman: But we do.

The Hon. J.R. RAU: But we do, so the point that is being made by parliamentary counsel—and it is a very good point (sorry, it is being made by me, but I am picking up the vibe)—is that there might be something which is not a development as defined in this act but which nonetheless requires an EIS. This is the state's principal environmental impact tool.

The CHAIR: Okay. We have had lots of questions, lots of supplementaries, so I am going to put clause 101.

Clause passed.

Clause 102.

Ms CHAPMAN: Now that mining is on the agenda.

The CHAIR: No, it is not.

Ms CHAPMAN: Potentially a project, as the example given, as a project. Somebody wants to put a sand mine in somewhere and you have decided that that is something that should come under your purview and not be entrusted to the minister for—who is the minister for energy and mines?

Mr Griffiths: The Treasurer.

Ms CHAPMAN: The Treasurer—heavens above, that is probably a good idea not to give him responsibility for it. Nevertheless, let's assume for the moment that you decide that you want to exercise responsibility over that and so you just declare it. The point is, how can there possibly be a judicial review over something that is in your head? Essentially, a project is anything else that is not a development that you think is worthy of assessment. There can be no judicial review of that, because you are going to have complete carte blanche. The learned shadow minister next to me makes a very good point. There is no basis whatsoever. Development is about as broad as you can get.

The Hon. J.R. Rau: It does not include mining.

Ms CHAPMAN: It does not, apparently, and perhaps it should not. My point is that, unless it is defined for the purposes of curtailing a perhaps future minister's penchant for using this clause—we might have the son of, or daughter of, the former Hon. Paul Holloway, and we might be back in the major project arena. Heaven forbid! I just make the point that it seems quite legitimate and reasonable to confine whatever you might say should be in this high level category to be within the development, and not start picking off other jurisdictions.

The Hon. J.R. RAU: Just a couple of quick points. I think I understand the member's point of view. Point number one: if the minister does something for an improper purpose, that is clearly reviewable. Point number two is: I understand that the Mining Act does not have an equivalent EIS assessment tool within it, so this is able to be used. Point number three is: if the minister of the day wanted to call something in to do something that they wanted to do, there is another area here where the minister has call-in powers that could be used. This is a very complex way if the minister is determined to go off and do something capriciously. This is a very hard way to do it compared with simply calling the matter in.

Ms CHAPMAN: I hear what the minister says, and I accept that it may set a fairly onerous threshold, but it also may not, and so it does not have to be capricious. It may be just a decision to help out a mate to advance a project that they see as a pet project that they want to advance. The rules are going to be set at this high level. Obviously, there is that aspect of appeal.

The other thing is that it seems as though the minister is presenting to us some kind of view that there needs to be some way in these major projects of having obligations to deal with the environment. We have the Environment Protection Authority. We have a whole lot of laws in respect of mining. We have even had that new policy document which the Premier has put out about multiple use for rural land—not just land, in fact; it is going to be water as well—that I referred to today, which opens up all these opportunities for doing all sorts of things, from Woomera to Spencer Gulf to other areas of development.

The CHAIR: So, what is the question?

Ms CHAPMAN: My question is: is the minister indicating to us that all of these other laws that apply in relation to environmental obligation, whether it is contamination of soil, etc., do not apply to your developments in some way and, if they do, why is it necessary for you to have this extra role outside the normal development definition?

The Hon. J.R. RAU: That was quite lengthy, but when we get to clause 106 a lot of exciting answers will start to come out. This is the principal environmental impact assessment tool in the state's collective tool kit. There is more to be revealed. Once we get to 106, which I hope will be in a couple of seconds, we will be able to get more deeply into it.

Clause passed.

Clause 103.

Mr GRIFFITHS: I was going to ask a question on clause 101. Were you talking about 101 then?

The CHAIR: No, we have been on 102 for three long questions. I am sorry if you have missed that.

Mr GRIFFITHS: I did. I was going to ask about public consultation, about a practice direction.

The CHAIR: Maybe that is in 106 as well. We are moving on to amendment No. 22 on schedule 1 standing in the minister's name.

The Hon. J.R. RAU: I do not wish to proceed with that amendment. I move:

Amendment No 23 [Planning–1]—

Page 81, line 19—Delete 'development agreements' and substitute 'business days'

Amendment carried.

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

Amendment No 24 [Planning–1]—

Page 81, lines 34 to 36—Delete subclause (10)

Mr GRIFFITHS: Why is this amendment necessary?

The CHAIR: We are taking it out now. Did you want to leave it in?

Mr GRIFFITHS: He is removing a clause from the legislation. I am wondering why the removal is taking place.

The Hon. J.R. RAU: We want to make it clear that we want an early no or an early yes from the commission before they actually go through the full assessment process. The removal of that provision we think makes that clearer; in other words, that it is not open to them to pick any old time during the process—they should try to do that first so that people do not waste their time and effort.

Amendment carried.

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

Amendment No 25 [Planning–1]—

Page 82, after line 8—Insert:

(15) The Commission, acting through its delegate under section 30(3), may refuse an application that relates to proposed development classified as restricted development without proceeding to make an assessment of the application.

(16) A decision to refuse an application under subsection (15) without proceeding to make an assessment is, on application under this subsection by the applicant, subject to review by the Commission itself.

(17) An application under subsection (16) must be made in a manner and form determined by the Commission and must be made within 1 month after the applicant receives notice of the decision under subsection (15) unless the Commission, in its discretion, allows an extension of time.

(18) On an application under subsection (16)—

(a) the Commission may adopt such procedures as the Commission thinks fit; and

(b) the Commission is not bound by the rules of evidence and may inform itself as it thinks fit.

(19) The Commission may, on a review under subsection (16)—

(a) affirm the decision of its delegate; or

(b) refer the matter back with a direction that the application for planning consent be assessed (and that direction will have effect according to its terms).

(20) No appeal to the Court lies against—

(a) a decision of a delegate under subsection (15); or

(b) a decision of the Commission under subsection (19).

Mr GRIFFITHS: Because these are six new subclauses being inserted, will the minister give an explanation as to why these amendments are being moved?

The Hon. J.R. RAU: We have taken (10) out and put these in to make clear the point I was just trying to make.

Amendment carried.

Mr GRIFFITHS: I refer to subclause (3) which reads:

The Commission may dispense with any requirement under subsection (2)(a) if the Commission considers that the giving of a notice envisaged by that subsection is unnecessary...

A concern was raised by the Local Government Association about the removal of public notification requirements by virtue of this clause, which would be somewhat of a challenge to community expectations, so why is this intended to be in place?

The Hon. J.R. RAU: We can have a look at it between houses but the notion of it is if you had some minor change that was going to occur somewhere in a rural setting and the nearest neighbour is a very long way away, and the prospect of it having any matter of concern for them or impact is zero, it should be possible to dispense with notification requirements.

Mr GRIFFITHS: In many cases I would accept that but it was related to restricted development which is, by its nature, a bit more contentious so I would have thought that it would have been required to leave it there.

Clause as amended passed.

Clause 104.

Ms CHAPMAN: This clause is the 'Impact statement by Minister—procedural matters'. This sets out what you can do in very general terms and, as you point out, up to clause 106, we then start moving on to EIS proposals. I am not sure, but it seems that although there is a general obligation under the proposed bill to have a community charter, and that is going to be drafted and issued for consultation, and I understand all that, and although I think the process is rather back to front, I ask whether any of your impact assessment approvals are subject to the charter once it is in place?

The Hon. J.R. RAU: No, and I point out, as I said before, that this is the most rigorous assessment process in terms of the height of the bar to be cleared of any, and it stands aside from the charter.

Ms CHAPMAN: What about when somebody, which is another level of panel, does the restricted developments? Are they bound by the charter?

The Hon. J.R. RAU: Yes, I think we need to be clear on this. The charter applies to policy and planning tools, if I can describe it that way. It does not apply to assessment, because what we are trying to do is to move the whole conversation, in terms of the engagement with the community right to the front end, which is where they work out what the planning policy is going to look like. That is where we want to have very strong public engagement so they know exactly what is going on and they are involved in that process. Again the assessment process is somebody adjudicating on whether your proposal meets that policy.

Ms CHAPMAN: Of course, there is the delegation aspect which could mean that any person or body could end up actually exercising this assessment role. I do not know whether the minister has had an opportunity to view any of the other charters that are operating around the country but one was proffered at the infamous Burnside council hall meeting on 21 October, at which I regret to note your appearance was rather brief. Nevertheless, I think it was appreciated that you attended, presented for a short time, and although you were not there to answer questions, I understand it was raised as a charter, and a draft from New South Wales was presented at that meeting. I do not know whether you had an opportunity to read it or not, but their charter, for example, specifies on page 3, and I will just read this paragraph:

A Minister should not amend or refuse to make a local plan unless it is inconsistent with the state or regional plan.

Of course, that touches on the point you mention, that this is all about influencing the plans rather than the actual assessment. It continues:

Further, the minister's decision to amend or refuse to make a plan should be legally chargeable. Also, the minister—

it says this twice, I do not know why; the grammar is not too good in New South Wales—

should not have the power to appoint an administrator to take over a council's planning functions except where a finding of corruption against the council or its staff has been made by the Independent Commission Against Corruption (ICAC).

From what I have read of it that is the only mention of the minister, which does fit in with the minister's concept, that the charter should only influence him for the purposes of him acting as the signatory of the authorising party to a plan or an amendment plan. In some executive circumstances he might need to appoint someone where, in the minister's case, a proposed panel or member ought not to be progressing something because of an ICAC inquiry, and therefore he might act.

I perfectly understand that, but it just seems that once that plan is set—especially as the minister is going to be able to identify in his assessments, those few that he might do, a project status which may or may not ultimately have a rigorous EIS process—really, the minister is not going to be compelled any way to deal with the sense of the community, which has outlined its position in the charter. Why? Quite simply, the minister will be able to identify an area or region that relates to a particular project that could be completely inconsistent with its existing use—that is, a port or the like—and completely disregard or, in fact, not even consult with the local community about that project.

So whilst it may have a very high standard of environmental impact of the assessments for that purpose—and if it is a port or an airport, for example, it might have a whole lot of federal regulations over it is as well—local people are going to have no say whatsoever. Although it appears that the minister has had a light touch in this area in the time he has been operating it, where, at this top end level, are local people going to have a say?

The Hon. J.R. RAU: I think the answer is, again, that I do draw a distinction between the policy formulation and the assessment, but I have already said enough on that. The second point is that under the present regime relating to major projects, everything that the member for Bragg has said might be possible to be done by the minister of the day can be done now, and has been done in the past. The third point is that if you go to section 106, we are actually adding some things in there that do not presently exist in terms of mandatory consultation with councils, or replicating a similar sort of process.

Ms Chapman: But where is the public?

The Hon. J.R. RAU: The public is in 106(5)(b).

The CHAIR: We are looking at 104; you have had several questions on 104 so I will put it.

Clause passed.

Clause 105 passed.

Clause 106.

Mr GRIFFITHS: I am not sure of the differences, and I seek some clarification relating to the availability of information—I am looking at subclause (11) on page 85 as well as subclause (5)(b)(ii). That second option determines that an EIS is published on an SA Planning portal, but in subclause (11) it talks about the EIS and the proponent's response being kept available for inspection. Does that also mean being published on the portal, or is it only the physical version that is available for inspection?

The Hon. J.R. RAU: It does not require the portal but it could be put on the portal. We will have a look at that. Unless there is something I am not aware of I do not have any problem with it being on the portal.

Clause passed.

Clauses 107 to 110 passed.

Clause 111.

Ms CHAPMAN: On division 3—Building consent, I will just start with a matter I raised during the morning session, minister, that is, the indication in relation to the strict building obligations. I appreciate there is going to be a whole lot of prescriptive obligations in respect of obtaining building consent. One of the matters I raised this morning was how we might promote the opportunity for the development of heritage property, and you indicated two things; one was that the hold-up of this, which you are looking to try to consider as a package by mid next year, was the advance of, I suppose, some freeing up of the disability obligations at a national level, given the obligations of that regime, and that that was going to be on the agenda for COAG.

During the luncheon adjournment, I viewed the COAG communiqué for attendances on 10 October 2014, 17 April 2015 and 23 July 2015. There is reference to a trial NDIS strategy, which obviously relates to the National Disability Insurance Scheme, but there is otherwise no reference in the COAG communiqués to any discussion or resolution of that entity to advance review of that issue. I understand the next COAG meeting is on 11 December, so I am wondering where that is and, if it is on information you have given to us that perhaps needs some further investigation with the Premier, I am happy for you to get it and get back to us.

The Hon. J.R. RAU: I am happy to get back to you, but here is what I know from my own personal knowledge about this. I have been raising this issue at building ministers' fora for two or three years; all colleagues around the country agree with this proposition. So, to the extent that I have a vector into the commonwealth administration, I have been exercising that.

Secondly, I think it was at the COAG meeting before last that the Premier raised this matter as an issue for COAG. That does not necessarily mean it is on the communiqué, but my understanding is that he has raised it because I have seen documents which indicate that it has been put on the COAG agenda, but I can make inquiries as to exactly where it is up to.

I can say that the national Building Code is presently being revised, and South Australia, along with Victoria and, I think, Western Australia, have been quite strong urgers in that area because we are trying to get that sorted. Apparently, at my urging, state and territory officials are meeting with the Building Code board and the Property Council with a view to try to progress some of those matters.

Ms CHAPMAN: I will wait to hear back on this between the houses as to where that is at at the COAG level because, as you say, that is the highest level for consideration. If it is the case that there has been no actual advance of this, other than perhaps the South Australian Premier raising it in some informal way, are you suggesting that you cannot advance statutory reform in South Australia to release the obligations in respect of this area—that is, the disability obligations—until there is a federal statutory reform?

The Hon. J.R. RAU: This is a bit complex because the commonwealth has a role and we have a role. In short, the answer is basically this: we could seek to modify the impact of the DDA here. The consequences of doing that would be to remove the blanket protection which presently exists to protect building owners from any sort of DDA discrimination suit by an individual.

What people get because we comply is that they are immune from any form of litigation about this. If we were to drop our standards to facilitate things which are DDA-related things—and they are not the only ones, I emphasise this—all we would be doing is exposing the people who are doing these projects to potential litigation from disgruntled individuals, which would not be very helpful either. That is something on which we need the commonwealth to consent to us having more flexibility about what we can do at a state level without that protection being removed.

In respect of things like fire requirements, that is something where we can do more here. Basically, the answer with the fire requirements is that there tends to be a view that fire requirements are prescriptive rather than performance-based, and we would like to see more performance-based assessment of fire safety issues.

I will give you an example, which is possibly wrong, but let's say that everybody thinks the answer to fire is to have sprinklers throughout the place. If you have a performance-based assessment, you might be able to say, 'If you don't have any sprinklers but you do have external fire escapes, and you do have sliding doors that shut bits off, that is as good in terms of performing the task required as the other thing.'

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes. There is a reluctance for the approving authorities to accept things other than the entirely orthodox, and that is a job we are trying to work on. The other thing we do in here which should be of help is that we are saying that local government cannot impose things above the Building Code of Australia on buildings which they just do because they have a fetish about something.

If the Building Code of Australia is good enough to be the Building Code of Australia, it is good enough to be the Building Code of Australia in each council in Australia, including all those in South Australia. You do not add a different bell and whistle because you are in council A or council B. We are attempting to address that in here. The last area is the Building Code itself, and that has to be done at a national level. We are working on that, and that is what the meeting on Friday is about.

Ms CHAPMAN: The second aspect that was raised this morning by you, minister, to address this difficulty was for our side of the house to give, I think, positive consideration of the Local Government (Building Upgrade Agreements) Amendment Bill 2015 with a view to us assisting in some way with the opportunity to develop this heritage area within the envelope of the fact that it was to apply to commercial buildings—

The Hon. J.R. Rau: I didn't say just heritage: I said all older buildings.

Ms CHAPMAN: —well, all buildings—so, obviously, within that there was a capacity to assist in this area. My understanding of this bill, which I appreciate is sitting in another place at this point, is that various parties are considering some amendments to try to I think balance the resultant obligations that might be on owners of property versus those who might be tenanting properties, to put it in a nutshell.

In any event, it relates to allowing investment to progress to, I suppose, retrofit buildings to bring them up to standard at an environmental level, etc. It may be an admirable proposal but it does not actually address what we are discussing, and that is the opportunity to have some relief from the strict obligations in a development upgrade of a heritage building. I just indicate that I have looked at that. It may be a sensible bill. I am in the process of reading it and we will see how we can advance the meritorious aspects of it, but it does not help this other issue.

At this point, as I see it, you are saying, 'In light of the fact that there may be some risk to those who develop of having a discrimination action taken against them, we are not advancing that until we have dealt with it at the federal level,' and I understand that; but, as I also understand it, other states have been able to progress this—and they may have been doing it on the basis that you can progress provided you accept full liability for that risk aspect. I do not know what private arrangements are going on in other states, but it does seem there is an opportunity for some of our other capital cities to develop in an orderly manner to enable us to ensure that heritage assets are not decaying, left vacant and without tenants to maintain them. I look forward to seeing that bill. By mid next year I will be making a little note in my diary as to when I expect the bill.

Clause passed.

Clause 112.

Mr GRIFFITHS: I go to page 92, subclause (9)(d). The first line uses the word 'inconsistency' and the second-to-last line uses the words 'any specified matter', and it is talking about the same thing. The suggestion put to me is to retain 'inconsistency' in the first line but in the second-last line use the words 'relevant inconsistency', just to ensure consistent description of it.

The Hon. J.R. RAU: I invite PC to have a look at that at their leisure. It is either a tick or a cross as far as they are concerned.

Mr GRIFFITHS: Subclause (13) states:

To avoid doubt, a person may apply for the approval of a proposed development even if the person is not the owner or occupier

I understand the reasons why that would be in place sometimes—I can certainly respect that—but does the minister consider that there should be some form of notification on the application to say that the owner supports the application being lodged?

The Hon. J.R. RAU: Not necessarily, because this raises commercial in confidence issues and a whole bunch of things. If you have a block of land and a potential purchaser knows about this block of land and wants to find out what they might be able to do with the block of land, it might affect their capacity to negotiate with the owner of the land if the owner of the land is tipped off that, first, they are interested and, secondly, what they might be intending to do with it.

This is an opportunity for the buyer to do due diligence on a piece of property, just as the owner of the property could do their own due diligence on the property. I think the idea that the prospective purchaser doing their due diligence should be required to hand over all their intelligence to the potential vendor is asking a little much. We could have quite complex joint venture exercises as well.

Back on the other point—and I am not doing this in any way to provoke a further conversation on the topic and I say this in all seriousness—if the member for Bragg or the member for Goyder is prepared to speak with the relevant ministers in Canberra who have responsibility for the DDA and also encourage them to be sympathetic to what we are saying, that would not go astray, and I would provide information so that can be done.

Ms CHAPMAN: I am just not sure of this, and I may need to ask a question on it, because when I asked about the regime of enforcement for the assessing authorities, I was told that that was at pages 91, 97 and 191. So, part of clause 112 traverses page 91. Perhaps you can tell me first under this section, or that page, whether there is a regime here that actually imposes the time requirement to ensure timely progress of matters?

The Hon. J.R. RAU: In that context, 112(3) provides—

Ms Chapman: Subclause (3)?

The Hon. J.R. RAU: Yes.

Ms Chapman: Page 89?

The Hon. J.R. RAU: Page 91.

Ms Chapman: It is on page 89 in my copy, but that is alright.

The Hon. J.R. RAU: 'A relevant authority', yes. That is the stop the clock-type proposition where further information is required.

Ms CHAPMAN: Yes, but it does not tell me what the time is; it is still all to be set by you sometime in the future. In fact, this is an obligation on the applicant to provide all this material in a timely manner, not the other way around. I am talking about the relevant authority getting on with the job.

The Hon. J.R. RAU: That is to do with provision of information, and I am advised that we should probably read that in conjunction with 118, which does set out the times.

Ms Chapman: Clause 118?

The Hon. J.R. RAU: Yes, which is on page 97 of my copy. That sets out things like subclause (4), 10 business days; subclause (7), one month; 14 days in subclause (8), and so on.

The CHAIR: Are we happy with 112 at that point?

Ms CHAPMAN: Just let me clear this up.

The CHAIR: You are on an advance copy are you, member for Bragg?

Ms CHAPMAN: I may be slightly out, but that's alright. I am happy to work with this one. I have got all my markings and I do not want to start that again; we might be here until midnight tomorrow. I am happy to do that, but—

The CHAIR: No, we are definitely not starting again; we will just talk about clauses and not page numbers.

Ms CHAPMAN: It is just the minister gave me page numbers, so that is alright.

The CHAIR: Okay, but he does not realise that that is not helpful.

Ms CHAPMAN: Page 97, which then may be page 96, may be the clause 118 that you referred to. Is that where we were at there?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: And page 191, which is codes of conduct—

The Hon. J.R. Rau: Schedule 3?

Ms CHAPMAN: Yes, schedule 3. Okay, so we are on the same page. Let me just—

The CHAIR: We do not refer to page numbers from now on; we are only going to talk about clauses, because the member for Bragg is on a different—

Ms CHAPMAN: That's fine.

The CHAIR: No, we are not talking page numbers anymore; it is clauses only.

Ms CHAPMAN: Correct. Do the time requirements apply to you, minister, when you are the relevant authority?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: And so if you fail, what is the penalty to you?

The Hon. J.R. RAU: Can I make the point that 112(5)(c) makes it clear that the relevant authority, whoever that might be:

…in making an assessment as to planning consent, only request the applicant to provide additional documents or information in relation to the application on 1 occasion;

So, in other words, you cannot keep going back and forward unless the—

Ms Chapman interjecting:

The Hon. J.R. RAU: Just to be clear: because the minister would be doing impact assessments, those time limits do not apply to the minister because they are impact assessments—in other words, major projects—

Ms Chapman: So they do not apply to you?

The Hon. J.R. RAU: No, but they do apply to the commission or any other—

Ms Chapman: So you cannot be fined?

The Hon. J.R. RAU: No, but if you go to 118 you will see the consequences are actually, in particular—I know we are jumping ahead of ourselves a bit here, but the major consequence is 118(2) which is a deemed consent. What is happening now is that people can just say, 'We are not going to deal with it,' or, 'We will deal with it by saying no,' and you have nowhere to go after that. You cannot appeal—you go off to court. This is saying, 'Okay, authority, the risk of doing nothing doesn't sit with the applicant; it sits with you. So get off your bottom and do it.'

Ms CHAPMAN: I do not have any issue with that; in fact, it was our policy at the last election, quite explicitly, to deal with this issue: that there ought to be time limits on whoever the relevant authority was, not in the definition of this but it was usually councils at that stage—but DACS or anyone else if they do not actually progress something in an orderly fashion, then it is reasonable for there to be penalties, including the power for some other agency to intervene and be able to advance the project one way or the other.

The biggest complaint was not that you got an adverse decision—because at least you could go to court—it was no decision or this petty request for further information of minutiae, and all that did was cause everyone frustration, delay, cost, etc. I understand that and have no issue about the process. My concern is what is to happen if the minister does not do this. I appreciate that they cannot be fined; I appreciate that they do not have a time limit on them but what is to happen if a minister does sit on a project that is within the definition of what they are assessed—either in the list, as you have said, or classified or prescribed?

The CHAIR: Is that our last question on 112, because we are really pushing it a bit and we need to move on.

The Hon. J.R. RAU: The provisions that apply to the minister are not these; they are the ones contained within the structure of the EIS section that we looked at a while ago, so the minister is governed by that. We are ahead of ourselves a bit: can we deal with 112 or, in fact, can we deal with 112 up to 118?

Mr Griffiths: No, I have a question on 113.

The CHAIR: Hang on; I am trying to finish off 112. I appreciate your assistance. Can we finish 112?

Ms CHAPMAN: As I understand it, minister—

The CHAIR: Hang on, we are finishing 112.

Ms CHAPMAN: Well, no, but—

The CHAIR: You have had four questions, long questions. We are moving on to 118 now to satisfy your question on 112. We are moving around and 112 should be satisfied by now.

Ms CHAPMAN: I will ask it on 113.

The CHAIR: The member for Goyder is as well, as far as I know.

Clause passed.

Clause 113.

Mr GRIFFITHS: I am interested in how outline consent is intended to work. As I understand it a request is submitted for an outline consent to be granted with a subsequent application to be lodged. The dilemma for me is that it has been put to me that the outline consent is likely to be on a more significant application that would normally be subject to some level of public notification, but indeed is public notification—though I doubt if it can be—provided as part of the outline consent process.

The Hon. J.R. RAU: We have been talking to the LGA about this and this is one matter which we have under review and it is something that we will have further views about between the houses.

Ms CHAPMAN: In respect of 113, which is the outline consent obligation, I take it that that, along with all of the provisions under division 4, under procedural matters and assessment facilitation, does not apply to you as minister as the authority.

The Hon. J.R. RAU: The minister is only authority for impact assessment matters which are—

Ms Chapman interjecting:

The Hon. J.R. RAU: But this does not apply to the minister in that context.

Clause passed.

Clause 114.

Mr GRIFFITHS: I am interested in design review. I respect the fact that advice must be sought but it should not guide the architectural designs that an individual application decides to pursue, as long as it meets the broad guidelines on it. Will it be assessed as part of the design review group only by how it meets that and not to make suggestions about how to change it and what their own vision might be?

The Hon. J.R. RAU: Yes; it is a very good question. Can I say to the member for Goyder that I would be happy to arrange for him to be an observer in one of the design review processes that is being run presently by the Development Assessment Commission because it is quite interesting. Design review is about fundamental principles of design. It comes back to what I was saying before about the design charter or design principles. Design review looks at things from that sort of perspective. It does not superimpose the taste, if you like, of the review panel onto the proponent; but it does comment if the proponent makes an obvious error—and I am talking about fundamental design error. I will give you a classic example of something that would not be okay.

If you have a city block, and the proponent wanted to build boundary to boundary on the whole of the block and have blank walls facing all of the streets so there was no interaction at all, the design review process would say they have to (a) interact with the streetscape and (b) they might say that there needs to be some public access into this property, so it might mean an arcade or something. You see this in many buildings, particularly in Sydney now. I was there not long ago, and in Bligh Street in Sydney there is a very large new building and the whole ground floor up to the height of the ceiling in this room is an open space, and the public can walk through the building, and there is coffee and other sorts of things there. These are the sorts of design elements; it is not architectural in the strict sense.

An honourable member interjecting:

The Hon. J.R. RAU: It is not style, it is design, yes.

Sitting extended beyond 22.00 on motion of Hon. J.R. Rau.

Ms CHAPMAN: I appreciate, minister, that much has been said about the planning and design code, that we are yet to see it, and so on. Can you explain how it is that at present developments such as pop-up facilities can operate—small bars and the like—without providing wheelchair access to the premises for the purposes of offering usually entertainment in a public space?

The Hon. J.R. RAU: There are two things: if it is a pop-up as such, the carve out for these things is temporary developments, so there is a relaxation of the formal requirements for those. In relation to some of the other developments, particularly, as was mentioned, small venues, what has actually happened is that the case management team that we have within planning have been working with the developers of those things to help them navigate their way through the DDA maze. It might be that some advice from them about what you do or do not do to the premises enables them to be able to get to where they need to go without triggering some of these costs. To give you an example, if you get a building and basically all you do is paint it, then painting is not development.

Ms Chapman: It will be under your bill.

The CHAIR: No, it won't be apparently.

The Hon. J.R. RAU: It is not development for the purposes of disability access, that is for sure, but if you start knocking out walls or putting in a whole bunch of new toilets or facilities or something, at that point, the more you do the more you start triggering DDA compliance requirements. Some of these people who are doing these projects are very careful about what they do and don't do, because once they trip a certain threshold they engage DDA requirements.

Clause passed.

Clause 115.

Mr GRIFFITHS: Minister, I refer to page 95, subclause (6)(b), which provides:

if the regulations so provide, no appeal lies against that refusal or those conditions.

My concern, as I read it, is that we are granting the fact that no appeal can be in place via regulations that we do not have the opportunity to see yet. Why are there no appeal rights?

The Hon. J.R. RAU: Those two provisions are transposed.

Clause passed.

Clause 116.

Ms CHAPMAN: Can you just explain to me what we are talking about here? Fortifications? I thought we had passed a whole lot of laws to get rid of them.

The Hon. J.R. Rau interjecting:

Clause passed.

Clause 117.

The CHAIR: The member for Bragg has a question on clause 117.

The Hon. J.R. RAU: We should be leaving it there. I have raised this with the Commissioner of Police and I have said, 'In view of what's going on, should we have this still there? Has it got any work to do?' His view was that it did, so we have left it there. I cannot presently recall exactly why it was, but he had a reason which he did explain to me at the time and I have left it there for that reason.

The CHAIR: Any further questions on clause 117? Member for Hammond.

Mr PEDERICK: In the definition of 'fortification'—and the deputy leader talked about the anti-association legislation—in regard to a private person, how do you define a fortification? Does it mean if they want to have a three-metre wall around their property? Is there any real definition of it, apart from what we defined as the obvious in regard to crime gangs?

The Hon. J.R. RAU: This is nothing in any way different to what already exists. It is not a new provision: this is just the existing one rolled out again. Fortification, I believe, you might find in subsection (3), which is on page 16 of my copy.

The CHAIR: No more pages.

The Hon. J.R. RAU: It is defined as having the same meaning as in part 16 of the Summary Offences Act.

Ms Chapman: Which is?

The Hon. J.R. RAU: I do not have a copy of that with me, but it is nothing different.

The CHAIR: There is a copy behind you, minister.

The Hon. J.R. RAU: I can read it out. It just so happens that one has come nearby.

The CHAIR: This is one you prepared earlier?

The Hon. J.R. RAU: It is one I prepared earlier, yes. In the Summary Offences Act:

fortification means any security measure that involves a structure or device forming part of, or attached to, premises that—

(a) is intended or designed to prevent or impede police access to the premises; or

(b) has, or could have, the effect of preventing or impeding police access to the premises and is excessive for the particular type of premises,

Clause passed.

Clause 118.

Mr GRIFFITHS: I reflect on the fact that I know decisions should be made as 'expeditiously as possible' I think is the term used at the start of this clause, but no doubt there are two rather different positions about how expeditiously that should be. Has the position that you have reached here—because I think over the page on subclause (7) is where you refer to one month—been the subject of a lot of negotiation to get to that time frame?

The Hon. J.R. RAU: This is a recommendation from the expert panel and it is modelled on a Queensland provision which we understand to be very successful. It actually puts the onus on the people who have the capacity to make the decision to make the decision rather than the present arrangements where there is no onus on the people who have to make the decision—

Ms Chapman: Except you.

The Hon. J.R. RAU: Except the minister, yes, but that is only in those impact assessed matters, but at the moment, to get back to the observation made by the member for Bragg, there is no reason in the world why any local government authority needs to do anything. They are the assessing agency. They can take their own good time and there is no consequence however long they take. So this is saying that, since you have the power to do something, you had better get about doing it, because if you do not do it, the effect is going to be a deemed consent and then you have to appeal against that deemed consent if you want to upset it.

Mr GRIFFITHS: Does a deemed consent extend to all levels of applications that are lodged, or is it intended to only be for the lower level, if I can use that, for what would be categorised as category 1 at the moment?

The Hon. J.R. RAU: It is anything.

Clause passed.

Mr GARDNER: Madam, I draw your attention to the state of the committee.

A quorum having been formed:

Clause 119 passed.

Clause 120.

Mr GRIFFITHS: I have a question on subclause (4), if I may, regarding the second word on the third line. It says the authority 'must' apply. It has been put to me that normally planning bills and legislation actually talk about 'may' so why is the word 'must' there?

The Hon. J.R. RAU: Existing provision, I am advised.

Ms CHAPMAN: The Glenside site is currently under development, as consistent with our ministerial DPA. It is on government land. There is a development going for a post-traumatic stress unit under the stewardship of the Minister for Health, and there is to be a major housing development on a large proportion of the balance of the vacant land on that property.

There were, at the time of the commencement of developments and renewal by former premier Rann, 2,000 trees on that site. Some 800 or so are significant trees. Is this obligation going to apply to projects that are under ministerial DPAs and/or the minister's impact assessments?

The Hon. J.R. RAU: It is a pick-up of the existing law and it applies, as the existing law does, to everything, but it would not apply to an impact assessment.

Ms CHAPMAN: So why was there not an obligation on the Department of Health when it developed the new hospital site at the rear of the premises and removed trees—significant and others—for the purposes of that development? Was it not obliged to plant 1:10 or 1:30 or whatever trees on other sites? More importantly, will it, given the current position, have an obligation to plant the number of prescribed trees on another property?

The Hon. J.R. RAU: I will obviously have to find out; I do not know.

Clause passed.

Clause 121.

Mr GRIFFITHS: Subclause 2(d), where it refers to the fact that 'unless otherwise approved by the relevant authority, cannot seek to extend the period'. I am intrigued about how that works, because if you cannot seek to extend it, how do you actually get approval from the relevant authority unless the word is 'may' instead of 'cannot'?

The Hon. J.R. RAU: If you get a development approval and the approval has a currency of two years, you cannot come in with what you claim is a variation and then say, 'Well, that constitutes a new start of the clock for another two years.' In other words, if you were not to say this, people could perpetuate these things indefinitely by constantly coming up with new things at the 18-month stage and keep buying themselves two years, two years, two years.

Clause passed.

Clause 122.

Mr GRIFFITHS: If I can just ask a question on subclause 1(b), where it talks about 'land that is subject to a statutory easement'. It has been suggested by me that it should be 'land that is or will be subject to a statutory easement' for an infrastructure reserve. I am not sure how you define that, because until the easement is in place, who knows where it is actually going to go, but that is what I am seeking clarification on.

The Hon. J.R. RAU: Can we look at that between the houses?

Clause passed.

Clause 123.

Mr GRIFFITHS: I apologise if I have missed this, but subclause (1) refers to 'section applies to essential infrastructure of a prescribed class'. Is that actually defined?

The Hon. J.R. RAU: It will be in the regs.

Ms Chapman interjecting:

Mr GRIFFITHS: Exactly, we do not know what we are talking about.

The Hon. J.R. RAU: If you go to subclause (3), there is a definition of 'essential infrastructure'. This provides for the opportunity of narrowing the class of things.

Ms Chapman: You are joking!

The Hon. J.R. RAU: No, seriously, it provides for the chance of narrowing for the purposes of what is described as 'essential infrastructure' so that it does not have that broad class of things, so it is actually giving more particularity to infrastructure that would fit within this class.

Ms CHAPMAN: How does it possibly narrow it after listing all of the logical essential infrastructure—energy, generators, water infrastructure, and the like? They are all pretty clear, but when we get to the last one it says, 'other infrastructure, equipment, buildings, structures, works or facilities brought within the ambit of this definition, either by the Planning and Design Code or by the regulations'. It could be anything; it could be a toilet, which is probably caught under one of the others.

The Hon. J.R. RAU: That definition is deliberately broad, because that definition of infrastructure appears all over this legislation and is intended to be of extremely—

Ms Chapman interjecting:

The Hon. J.R. RAU: I am talking about the subclause (3) version. That is intended to be the very broad definition of infrastructure, because it can pop up all over the place. This one, which is only used for particular purposes, so only used where this term of art is used, is intended to be a much more restricted particular subclass of the definition in subclause (3). It might be sewers, electricity or whatever. It is electricity under the legislation at the moment. Section 49A of the existing legislation applies to electricity. Does it apply to anything else or just to electricity presently? I am advised that we could say that it does not apply to all electricity, but could only apply to very large electricity projects and not smaller ones.

Ms CHAPMAN: That would be logical, but the essential infrastructure under the definition are the things we have indicated, the instructions relating to generational distribution of electricity, gas or other forms of energy, but water infrastructure, transport networks, facilities, causeways, bridges, culverts, embankments—

The Hon. J.R. RAU: Yes, but that is in subclause (3) though, isn't it?

Ms CHAPMAN: This is all subclause (3). If you are saying that of the essential infrastructure which is to have this new alternate assessment process in a prescribed form is only likely to be as per section 49, which is the electricity, is that the intention?

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Right. So roadways, bridges and all these other things?

The Hon. J.R. RAU: At the moment we are intending to simply replicate the existing arrangements under section 49A.

Mr GRIFFITHS: On subclause (12), where it refers to a dollar figure of $10 million, what determined that figure?

The Hon. J.R. RAU: The dollar figure in 49A has been adjusted for contemporary changes.

Ms CHAPMAN: So how much is it at the moment?

The Hon. J.R. RAU: It went from $4 million to $10 million, I believe.

Mr GRIFFITHS: I believe the Public Works Committee looks at infrastructure over $4 million in value.

Members interjecting:

The CHAIR: Order! We are finishing off clause 123, if you don't mind.

Ms CHAPMAN: I appreciate that inflation does vary from time to time, but I am looking at section 49A of the act, and the current fine is $4 million. You are increasing it to $10 million. I might be assuming that we have the inflation rate of Botswana or something, but I am struggling to imagine how a $4 million fine could go up to $10 million.

The Hon. J.R. RAU: It is a cut-off.

Ms CHAPMAN: A cut-off?

The Hon. J.R. RAU: It is completely the opposite actually. By increasing it from $4 million to $10 million, we are saying that only projects above $10 million are going to be captured by this, whereas previously projects above $4 million were captured.

Mr GRIFFITHS: Subclause (26) refers to the fact that no appeal lies against a decision by the minister; again, you have that in there. Why is that there?

The Hon. J.R. RAU: It is about the consultation process, and I think that is the trigger for this, but let's come back to this; that was the previous one. Subclause (26), as I understand it, is an existing provision.

Clause passed.

Clauses 124 to 126 passed.

Clause 127.

Mr GRIFFITHS: The LGA proposes to me that an applicant should be able to enter into an agreement with a relevant authority that works to ensure compliance with disability standards will be completed within an agreed time frame. This will enable a business to begin trading and establish a cash flow while the works are being completed. Their proposal arose from the Lord Mayor's jobs summit held earlier this year, so the Local Government Association would like to see some flexibility there.

The Hon. J.R. RAU: That is an DDA issue again and we are happy to look at it.

Ms CHAPMAN: I will add this because it is really an observation of mine. I have not been to these premises and I make no reflection on the owners, but there is an aqua-coloured building on North Terrace opposite the museum which trades, I think, as Tiffany; it is a jewellery shop. It is a large aqua building. As I said, I have not been in it, but it is encompassed within an historic building with a façade along North Terrace.

It appeared to me to open and trade (and I think somebody had an opening for it or something at one stage), and then some months later I note that it now has a huge aqua-coloured entrance, in the form of a wheelchair access, which takes up most of the footpath, and that is why I noticed it. I wonder how that sort of property can operate, apparently trading for some time and then have this imposed on it?

The Hon. J.R. RAU: Again, this is all DDA stuff, but I gather you can have an action plan which enables you to get started, provided you are going to be compliant within a certain period of time, and maybe that is what they had.

Mr GRIFFITHS: Subclause (1)(b) finishes off with a building in 'an unhealthy condition'. I am not sure if I have ever heard that term before. I am interested in how that is judged.

The CHAIR: Well, it is a bit like the car park I suppose, isn't it? That is unhealthy.

Ms CHAPMAN: It certainly is.

The CHAIR: There you go. I am just helping.

Mr Gardner: This building is unhealthy.

The CHAIR: That is a different story. The car park itself is definitely not well.

Clause passed.

Clauses 128 and 129 passed.

Clause 130.

Mr GRIFFITHS: This is a request put to me by the Property Council about subclause (1): to add at the end of the subsection the words 'and if permitted under this act, no consent is required under the Native Vegetation Act'.

The Hon. J.R. RAU: We will have to look at that. I do not know what the implications of that are.

Mr DULUK: On the same subclause (1), I am just keen to go back to that significant tree concept that we had at clause 64. What is the difference between a significant tree and a regulated tree in terms of this provision, and how does that apply to native vegetation in the current act?

The Hon. J.R. RAU: The proposition is that significant trees are defined as significant trees and regulated trees are defined as regulated trees. I believe significant trees are a subset of regulated trees. To put it another way, all trees that are significant are regulated but not all trees that are regulated are significant.

The CHAIR: It is like the chicken and the egg, but only different. Does that help you, member for Davenport? There are no further questions on clause 130, so I am putting that clause 130 stand as printed.

Clause passed.

Mr GARDNER: Chair, I draw your attention to the state of the committee.

A quorum having been formed:

Clause 131 passed.

Clause 132.

Mr GRIFFITHS: On the very first line it provides, 'This section applies if a development approval envisages'. The Property Council has put to me that the word 'envisages' should be replaced by 'requires by condition or nominates as part of an application'. Has that been part of the consultation that has been undertaken with you minister?

The Hon. J.R. RAU: Again, we will look at it, but as I understand it these are existing provisions. If there is a good reason to change it because it is not working out, I am happy to look at it.

Clause passed.

Clause 133.

Mr GRIFFITHS: This relates to access to neighbouring land and the general provision. Given that it details that local government are the people who actually grant the approval, from their advice to me I do not believe they want it, and believe it should be dealt with in other ways. Has this been part of the consultation you have had with the LGA?

The Hon. J.R. RAU: I do not recall the LGA being particularly fussed about this provision, but I gather we are talking to them so let us just see how that transpires.

Mr GRIFFITHS: The Property Council has confirmed the same thing; they do not believe that local government should be doing it. That is what my notes reflect, that is the feedback I have received from them.

The Hon. J.R. RAU: Let us work on that one between here and elsewhere.

Clause passed.

Clauses 134 and 135 passed.

Clause 136.

Mr GRIFFITHS: Clause 136 refers to cancellation of a development authorisation. I am intrigued why people would apply for it to be cancelled. Is this a carryover of a current provision or is it something new?

The Hon. J.R. RAU: Yes.

Clause passed.

Clauses 137 to 141 passed.

Clause 142.

Mr GRIFFITHS: It is power of entry, and it refers to, under subclause (3), 'The building owner, or an authorised agent or employee, accompanied by a member of the police force, may break into the premises of the adjoining owner.' Is that a carryover provision or is that new?

The Hon. J.R. RAU: I am advised it is.

The CHAIR: New or a carryover?

The Hon. J.R. RAU: It is a carryover.

Clause passed.

Clauses 143 to 151 passed.

Clause 152.

Ms CHAPMAN: Clause 152 is a replication of section 73 I think of the act—the limitation on time when action may be taken. After that is, under section 74, primarily under part 7, the regulation of advertisements. My question is, that appears to be completely omitted from the legislation; is there some reason why that is not in this bill? Is it in another section?

The Hon. J.R. RAU: It is later on. I will be able to tell you in a second—part 19.

Clause passed.

Clause 153.

Ms CHAPMAN: This appears to be also a replication of the—

The Hon. J.R. Rau: I am advised it is.

Ms CHAPMAN: —provisions in respect of mining, or at least a portion of them. Perhaps it is a complete replication. My question is, of the mining tenements that have been referred to the minister in the time you have been the Minister for Planning, how many have there been for you to exercise your role under this part 12?

The Hon. J.R. RAU: There are a couple of things to be said. First of all, I have no recollection of me ever being asked to do anything in relation to this, but I will check it out. The second thing is, as I have mentioned in the context of heritage (I think I mentioned this right at the beginning), mining was one of those other elements which were touched on by the expert panel, and we considered that we could only bite off so much at once. There is a discrete piece of work that is going to have to be done about mining as well to try to align that with this. We thought we would get the basic structure in place first and then we can do mining, heritage and transitional provisions in subsequent pieces of work.

Clause passed.

Clause 154 passed.

Clause 155.

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

Amendment No 1 [Planning–2]—

Page 129, after line 35—Insert:

(1a) A scheme under this Division should relate to 1 or more of the following purposes:

(a) to facilitate development or urban renewal of a significant nature by providing a scheme that supports and advances the provision of infrastructure;

(b) to provide a mechanism for the equitable distribution and apportionment of the costs of essential infrastructure;

(c) to assist in the augmentation of capital available to fund essential infrastructure;

(d) to provide an incentive for the provision of essential infrastructure (including through private sector investment) by providing certainty through the establishment of the scheme.

Amendment No 2 [Planning–2]—

Page 130, after line 20—Insert:

(3a) In giving consideration to whether to include a proposal for the collection of contributions under Subdivision 3, the Minister must take into account—

(a) the extent to which it is reasonable that other sources of funding be used instead; and

(b) the extent to which the relevant infrastructure will provide a direct benefit to—

(i) the development potential, capacity, use, value and amenity of the land that would be expected to be included within a relevant contribution area; and

(ii) without limiting subparagraph (i), people who might be required to make contributions; and

(c) any schemes or arrangements (including with respect to the imposition of separate or other rates or charges) that are already in place, or are already planned (and known to the Minister), with respect to the provision of infrastructure or the undertaking of works in the area (or in an adjacent or related area).

Amendment No 3 [Planning–2]—

Page 130, after line 33—Insert:

and

(c) take reasonable steps to consult with the owners of any land that would be directly affected by any infrastructure or works to be provided or under taken under the proposal scheme,

Mr GRIFFITHS: The dilemma is this is the greatest moveable feast, minister, I have ever had to deal with in my life, I must say.

The Hon. J.R. Rau: It's exhilarating.

Mr GRIFFITHS: You can describe it that way. It does not feel that way when I think about it, I have to tell you. It is such an important area; it is an absolute key to it. I know that you are trying to bring about a difference to the system, but in the consultation that I have undertaken I cannot find anybody who actually accepts it. You seem to have more confidence in it than the groups that have been in contact with me have.

Since the amendments to clauses 155 to 173 or thereabouts were given to me last week, one of your staffers has advised me of some slight changes to three of those areas but, in the consultation that I have undertaken, it has not been long enough for them. The property industry group, in particular, only had from I think Thursday afternoon until a meeting on Friday afternoon to express an opinion on it.

It is exceptionally hard for us to debate this in detail because we are continuing to receive comments about it, and we have had amendments proposed even today about it, but it is such an important area that needs to be sorted out, I understand that. We can be here for literally hours talking about this or we can be discussing it between the houses.

The Hon. J.R. RAU: Exactly. I will just speak very quickly on this because these are all sort of a bunch, so let's talk about this. We have had ongoing discussions with all of the people: UDIA, HIA, Property Council, Master Builders—we have been talking to all of them. The amendments that you see here are as a result of things that they have brought to our attention. Can I say that, whether or not we ever get to the point where every one of those bodies agrees with every single word in all of these things, I think that is possibly hoping for too much, but I have been reliably informed that, as a general consensus, they would say this represents a substantial improvement from their perspective on where the thing was before.

If I can just explain conceptually what the issues were that were brought to me and what we have tried to do with these amendments, the first issue is, at the present time, we can only negotiate with landholders to get an agreement which becomes a contractual arrangement with the landholders. When you are dealing with a very large, sophisticated developer, that is not a problem.

You have a sophisticated person on one side of the table and the government on the other. You bargain over what the actual infrastructure will be, and then you strike an agreement that the infrastructure will be provided by the developer as part and parcel of a contract, in effect, between the government and the developer. That is relatively straightforward. It becomes more complicated when you start dealing with multiple landholders, some of whom are very unsophisticated, and some of whom are going to be hold-outs and some of whom are not.

Ms Chapman: We have been doing it for 175 years.

The Hon. J.R. RAU: Yes, well, we are moving into a different sort of zone. The point I am trying to make is this: the first point that the property people were concerned about was whether we are going to use this as a mechanism for gold-plating what the infrastructure is going to be in the first place, so adding a whole bunch of bells and whistles to this thing far beyond what we ever do now.

What we have sought to do in these amendments, and in particular bits of these, is to make sure that the gold-plating concern is addressed. In other words, we are attempting to say in these amendments that this is not an excuse for the state government or for local government to start thinking up their wish list and dropping it into the infrastructure deed. In other words, the infrastructure deeds that come out of this should not be in any way substantially different to the sort of infrastructure agreements we are getting to now. The scope of the works is the point, so we have attempted to address that.

The second point they raised was whether or not we would be double-dipping; in other words, taking a whole bunch of money up-front and then taxing people or rating people on the way through. We have tried to explain that we accept it has got to be one or the other or a cocktail of the two which does not add up to more than an up-front contribution would have been. So, they are the two main propositions: gold-plating and double-dipping. We accept they are legitimate concerns, and we believe these amendments address them.

I think the most constructive way forward is that I move these amendments now, we get these amendments in here and then I am happy to continue to talk to the opposition and, indeed, those groups to see if we can do further finetuning on these. All I can tell you is I am assured by them, and by those who have been negotiating with them, that these do represent substantial improvements on the original bill, from their point of view.

I want to place on the record now, so everyone understands this, that I am not interested in gold-plating and I am not interested in double-dipping. To the extent that we need clearer words to make that clear, you will not have any push back from me. It really comes down to a matter of words—that is really the issue. I know what I mean, I know what they mean, they know what I mean. Does that cover off every option?

Mr GRIFFITHS: Words are an important part of it but dollars are the eventual determinant in what occurs here. There is absolutely no doubt in my mind about this. In a practical way, I can understand some aspects of how it works but I have a simple question for you and, being a former CEO, I have been used to having negotiations with people about augmentation for infrastructure and all that sort of stuff.

On the basis that there is an agreed standard for the infrastructure to occur—so the scope of works is determined, the cost of it is agreed, the works are undertaken, it comes at a cost—in a simple way: who pays for that? Then councils have to recover that as part of the levy, and there are different rules about how they can charge a fixed charge or a rate in the dollar, and all that sort of stuff. But, in that simple way, how does it work? We might talk about some specifics of it, even though we are going to have to agree to it belatedly.

The Hon. J.R. RAU: This is one of those things where there is no magic pudding. Somebody has to pay for this stuff sooner or later. We are not saying, and I am not saying, that in every development it will be necessary or appropriate for this scheme to be triggered, because there may be many developments at the moment where what we have done historically is okay, where you do have a sophisticated developer, you can sit around the table with him, you can arrange an agreement with him, and off you go. If you can do it that simply, why the hell would you not do it that way, and why go for this more complex arrangement? The preferred option is to keep doing what we are doing, but we recognise that, as time goes on, because of multiple landholders, things are going to get more complicated.

The original motivation for this actually came from the Property Council and the UDIA. They came to me and said, 'This is the riddle of the Sphinx as far as development is concerned. We have to find some way of getting infrastructure funded because these are holding up projects. The fact that we do not have the initial critical mass to get us over that infrastructure initial critical mass point is preventing a whole bunch of things happening.' We have been talking with them, literally, for years about this. I think they all acknowledge this is a problem that needs to be solved.

If you look at the amendments we have put in, I will just run quickly through those because they might be helpful. The first one reads:

(a) to facilitate development or urban renewal of a significant nature by providing a scheme that supports and advances the provision of infrastructure;

(b) to provide a mechanism for the equitable distribution and apportionment of the costs of essential infrastructure;

(c) to assist in the augmentation of capital available to fund essential infrastructure;

(d) to provide an incentive for the provision of essential infrastructure (including through private sector investment) by providing certainty through the establishment of the scheme.

That is supplementary to the existing clause155(1). Then a new (3a) adds:

(3a) In giving consideration to whether to include a proposal for the collection of contributions under [this subdivision], the Minister must take into account—

(a) the extent to which it is reasonable that other sources of funding be used instead; and

(b) the extent to which the relevant infrastructure will provide a direct benefit to—

because this is what they are worried about, gold plating—

(i) the development potential, capacity, use, value and amenity of the land that would be expected to be included within a relevant contribution area; and

(ii) without limiting [that], people who might be required to make contributions;

So we are trying to harness the connection between the paying and the benefit to the same pool of people. That is what we are trying to do here. Then:

(c) any schemes or arrangements…that are already in place, or are already planned…with respect to the provision of infrastructure—

that is just projecting where we are now—

take reasonable steps to consult with the owners of any land that would be directly affected by any infrastructure or works to be provided or undertaken under the proposed scheme…

We then set out in clause 157 a bunch of principles which should be guiding these schemes. The first one is:

…should be limited to recovering the reasonable capital costs of the scheme based only on infrastructure that is not excessive and that is not produced or delivered at a cost or price that is unreasonable in the circumstances.

So, we are trying to limit the scope of works and we are trying to make sure that we are getting value for money in what we are paying for those works, as scoped. We then say:

…contributions should not have an excessive impact on—

(i) housing or…affordability…or

(ii) the economic viability of a contribution area;

I will not read all of this out, but we have tried to capture all of those ideas and contain everything as much as we can. My suggestion is: let's get through this bit with these amendments; let's keep talking. I will keep talking to them. The member for Goyder and I should keep talking and see where we can get to.

Mr GRIFFITHS: Can I just seek some clarification on time frames, and expectation of when the legislation is to pass both chambers. The advice from the industry group to me is that, in discussions as of last week, the legislation was not going to be attempted to pass through the upper house within the last sitting week. Is that correct or not?

The Hon. J.R. RAU: That is so anathema to me it is not funny. I would never say something like that, unless I was having a moment that I cannot now recall. I might have, but that is not my style; I like to get stuff done. My view is, and has been, and continues to be, let's have a lengthy conversation about it in here, which we are doing tonight, and hopefully we will get it done. We can keep talking between the houses, but they should do their best up there, in the knowledge that we have had a thorough debate.

Actually, can I say that it is really refreshing for a change for us to be doing the debating of a bill in here. I think it is really, really good, and that means when it gets up there, they will be able to say to themselves, 'Look, normally, we feel a compulsion to improve things'—which is a euphemism they use for what they do—

Ms Chapman: But minister Gago will be doing it up there.

The CHAIR: There will be no reflections on the other place.

The Hon. J.R. RAU: —'but in this case because so much value has been added in the lower house we don't feel our hands need touch this piece of work'—

Members interjecting:

The Hon. J.R. RAU: —'other than by agreement.'

Members interjecting:

The Hon. J.R. RAU: So I am in a very positive frame of mind.

Mr GRIFFITHS: Minister, there is no doubt you are a glass-half-full person; I have got to believe that. But is there—and I think I expressed these words in the second reading contribution, because there are concerns out there that an area in which the levy will be attracted is not necessarily a development site. It is beyond that, because of the great variation of the infrastructure that is actually detailed that could be part of the funding from this infrastructure levy scheme.

I think the example they used was that if trams go down Norwood Parade, does that mean that everybody 400 metres from Norwood Parade has to pay a levy to go towards this? It is that level of uncertainty, and it is the concern about cost-of-living pressures. I know you have put some amendments in that give some assurances on that, and I do respect that, but that is where the questions lie. I do not know if we can sort it out between you and I.

The Hon. J.R. RAU: I am very confident that the member for Goyder and I will be able to walk arm in arm into the sunlit uplands between now and whenever it goes over there, and I am available, ready and willing to help.

The CHAIR: The member for Goyder does not look certain about that.

Mr GRIFFITHS: Well, I do want to have a political career beyond next week, because I can sense that if what you want to happen happens I do not think I will be here beyond Christmas. There is an enormous amount of discussion that will need to take place on that, but it is just the questions that are being posed.

You have talked about the fact that ongoing dialogue will occur with the different groups between now and 13 days' time, when the legislation is potentially in the house to be debated. That is an enormous amount of compromise that is going to be required from you, I think, to come to some form of position where there is a greater acceptance on it, because I truly cannot find the words in support of it.

You have quoted the UDIA as being one of the drivers of this from the initial infrastructure proposal they submitted to you—and they have given me a copy of that paper too, so I understand that. But, what you have in this legislation goes far beyond what they ever considered.

The CHAIR: Not so sure now, are you?

The Hon. J.R. RAU: No. John Kennedy, to whom I do not compare myself, asked himself rhetorically, 'Why is it that we go to the moon?' and the answer was, 'Because it is hard,' and that is basically what we are doing.

The CHAIR: So what is the upshot, member for Bragg: are you going to ask a few questions?

Ms CHAPMAN: Yes; I am, and I am going to preface my comments in respect of the amendments which are currently under consideration.

The CHAIR: We have questions, though.

Ms CHAPMAN: Yes, on the amendments because I do not think we have covered those yet.

The CHAIR: Yes, but not comments; we have questions.

Ms CHAPMAN: I welcome the government's foreshadowed amendments that we are about to consider. I think they are an improvement to what is otherwise a defective and blunt approach to a problem that has developed, I think, for a number of reasons. Whilst it might have been thought that I flippantly suggested that we have been able to deal with these matters for the last 175 years, I do not doubt that, particularly in circumstances where there are multiple landowners, it is more difficult. However, it is something that has been able to be addressed really until recent years.

Why is that the case? There are a number of reasons. One is because of this massive expansion of what we are talking about in the definition of infrastructure. In this instance, this bill has made it just about every structure possibly imaginable and then those that might be in the minister's imagination of what he or she might prescribe at some future date.

Apart from looking at what we would all accept as critical or essential infrastructure—namely, power supply, a safe water supply, an appropriate and environmentally sensitive sewerage arrangement, gas (if it is necessary), a road structure, kerbing (which would be reasonable in an urban environment) and, where appropriate, rail infrastructure and possibly an airport—we have now moved—

The Hon. J.R. Rau: There might be public open space.

Ms CHAPMAN: There may be public open space as well that is developed as part of a green area—ovals and the like, unless it is at the Glenside site where they are just about going to get rid of everything, but let's leave aside the particulars—just about every possible service or facility within the proposed precinct, including schools, clinics, childcare centres, aged-care services, community halls, TAFE facilities—you name it.

If one was to look at the last 20 years or so at the developments that have been approved, including large ones such as the Mawson Lakes area with very substantial public facilities, particularly tertiary educational facilities, that is now very extensive. There has been a progression of inclusion into this very expansive group of infrastructure in the determination about who is going to pay for it before the development gets going.

So it is unsurprising to me that developers are saying, 'Look, this is now so broad, and we're happy to accommodate a school or build it as part of the development and the like, but we're now going into a new paradigm of providing everything.' It therefore does not surprise me, as I say, that there is some bucking at the prospect of being called into a scheme which has to provide just about every bell and whistle. We are going to have free phones, communication towers, free apps, a Uber pass for every household. What else are we going to have in essential infrastructure? The mind boggles.

The second aspect of this, with respect to the infrastructure, is that the instrumentalities or the entities or agencies that are providing some of this infrastructure from the government side are a very different creature now than they were 20 or 30 years ago. The SA Water entity is a corporation; it is not the old Engineering & Water Supply; it is not a public amenity which used statutes in the 19th century to build public sewers and pipelines in the City of Adelaide, with an allocation of X thousand pounds to do a particular project. It is far from it.

Our electricity supply has been broken up into five different entities that build, distribute, and so on. Our road system is a combination of all sorts of contributors both financial from three levels of government to private roads. One which we recently had in Burnside, to use an example, involved a family that was prohibited from continuing to build a walkway through their own property, not because it was interfering with native vegetation but because it was deemed to be a development in the first instance and was stopped. Fortunately, that nonsense was disposed of and the family was able to continue that process and have their little walkway through their own property.

If we look at entities such as railways, which is less attractive but seems to be back on the agenda at the light rail stage, we have gone from the Railway Commissioner who still exists but certainly does not have the power that has historically operated for power of compulsory acquisition and the provision of a service, but obviously in major developments in the future that may be replicated with particular light rail spurs into proposed developments. SA Water I just want to take as an example. When the minister talked about gold plating and the augmentation costs of SA Water, just appreciate—

The Hon. J.R. Rau: You had me at hello.

Ms CHAPMAN: Well, you have given your spiel, minister; I am giving you my spiel in respect of the four areas of alleged improvement that you have indicated, which at first blush are encouraging, and I will give you a couple of points for that, but we are yet to read the detail about how that is going to apply. Let me come back to SA Water. It is a corporation which has in the time I have been in here done more gold-plated proposals than you can jump over, and the prize of them all is the desalination plant. I am going to finish off fairly quickly, but I am not finished yet.

The CHAIR: Before you go on, I am in the hands of the house here, but if there is not a question I really intend to put each amendment one at a time.

Ms CHAPMAN: I am happy to put bits of this on each section, if you like, but bearing in mind that the minister—

The CHAIR: Just before you go on, we have to try to stay on task. So, in the interest of staying on task, we are not going to get an agreement about doing things between the houses by the sounds of it.

Ms CHAPMAN: No, no; we are.

The CHAIR: Are we? Alright; well then let's put the amendment—

The Hon. J.R. RAU: I am happy for the member for Bragg, who is indicating to me that within 60 seconds she will be finished. I get everything she is saying and, trust me, we are so, as we would say in our profession, ad idem, it is just—

The CHAIR: I love it when you talk Latin. The member for Bragg has a further 60 seconds.

Ms CHAPMAN: We are not exactly cosy, but let me get back to SA Water. SA Water has not only built a desalination plant, but it has put the gold-plated pipeline through my electorate from one reservoir to another at a cost of over $400 million on its own, and it is a beautiful piece of infrastructure. If you go up there to have a look at the Wattle Park pumping station you would want to put a little tourist information centre next to it, it is so beautiful. If you love engineering, and you love pipes, and you love generators, it is a place to visit.

Mr Pederick: Why aren't we there now?

Ms CHAPMAN: It would be a bit of a better tourist destination than Leigh Creek, that is for sure.

The CHAIR: Is that a tourist suggestion?

Ms CHAPMAN: No; I cannot jump over Leigh Creek. I think somebody in the government recognised that as a tourist destination. I will not be picnicking there, but let me say this: it is a beautiful piece of infrastructure but it is gold-plated. Secondly, we might have ESCOSA in this state, but that does not stop governments making decisions to impose an obligation under a ministerial direction to do certain things.

One of them was by the Hon. Karlene Maywald, to build that pipeline through my electorate allegedly as an addendum to the necessary extra water that was going to be produced at the desalination plant going into the Happy Valley Reservoir. They did not even consider an alternative pipeline from south to north along the coast or adding more water to the reservoir and back down. That is the first thing.

Secondly, it has never been cheap: the opportunity for people to actually say, 'Okay, you're the regulator. We're happy for you to give a quote, but if we can get it done by an authorised person to do the work necessary to provide that service then I want it to be an easier process for alternate providers of that infrastructure to be made, not this monstrous process that has to be gone through to be able to do it yourself.' Finally—

The CHAIR: Member for Bragg, we really have to limit the contributions to 15 minutes.

Ms CHAPMAN: What am I up to?

The CHAIR: Twenty-two and a half. I have been as generous as I can be. Are we going to put them separately?

The Hon. J.R. RAU: Just put them all.

Members interjecting:

The CHAIR: We need to go on. We can't keep talking about it all night.

Ms CHAPMAN: The final—

The CHAIR: You said 60 seconds two minutes ago.

Ms CHAPMAN: I do not think I did, but what I did say was that I am happy to use SA Water as the example. The final aspect of the example I used is this: just this last financial year, SA Water was required to acquire a debt on behalf of government of something like $2.9 billion. They did not have any choice in that; they just had to take on that liability. They have to be an entity which has all the corporate responsibility under a board to make decisions, subject to ministerial direction, to provide income to your government. It is impossible to imagine that they are going to come up with an augmentation framework that is fair or realistic in providing a service without there being major reform. So, the minister has a lot of work to do between the houses. I welcome the first four amendments and I look forward to about 40 more.

The CHAIR: So everyone is happy to put the three amendments en bloc, is that correct?

Amendments carried; clause as amended passed.

Clause 156.

Members interjecting:

The CHAIR: Order!

The CHAIR: Is clause 156 clear? It has nothing on it.

Mr GRIFFITHS: Chair, I do not think any of them are okay, that is just it. The minister is going to put them through and we are going to have some ongoing discussions about opportunities to amend.

The CHAIR: Well, you can vote against it.

Mr GRIFFITHS: All I can say is that the minister responsible in the upper house will have a lot of work to do in this area.

Clause passed.

Clause 157.

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

Amendment No 4 [Planning–2]—

Page 131, lines 29 to 31—Delete 'to applying the principle that funding should seek to distribute costs over the lifetime of the infrastructure (or over some other appropriate period)' and substitute:

to the following principles:

(a) the contributions should be limited to recovering the reasonable capital costs of the scheme based only on infrastructure that is not excessive and that is not produced or delivered at a cost or price that is unreasonable in the circumstances;

(b) the contributions should not have an excessive impact on—

(i) housing or living affordability within a contribution area; or

(ii) the economic viability of a contribution area;

(c) funding under the scheme—

(i) may, as appropriate—

(A) seek to attribute costs over the lifetime of the relevant infrastructure (or over some other appropriate period); or

(B) be based on contributions that become payable on a specified event or events; and

(ii) should recognise the need to provide value for money in connection with funding arrangements including, as appropriate, through the contestable provision of infrastructure;

(d) augmentation charges should be shared between beneficiaries in proportion to the benefits that they receive;

(e) rebates for contributions should be available in appropriate circumstances.

Amendment No 5 [Planning–2]—

Page 131, after line 31—Insert:

(2a) In connection with subsection (2)(c)(i)(B), an event or events that trigger the requirement to make, or to begin to make, contributions should be related to when a benefit will begin to accrue, or is intended to accrue—

(a) in relation to land; or

(b) to the persons who will be subject to charges within a contribution area,

being (for example)—

(c) the division of land; or

(d) a change to Planning and Design Code; or

(e) an approval or the undertaking of development (including development involving the provision of infrastructure).

Amendments carried; clause as amended passed.

Clause 158 passed.

Clause 159.

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

Amendment No 6 [Planning–2]—

Page 132, line 22—After 'funding arrangement' insert:

and to provide advice to the Minister about the levels and amounts of any contributions that are to be recovered under Subdivision 3

Amendment carried; clause as amended passed.

Clause 160.

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

Amendment No 7 [Planning–2]—

Page 133, after line 10—Insert:

(aa) a scheme that provides for the collection of contributions under Subdivision 3 must specify arrangements for the periodic review of the levels and amounts of those contributions and, as part of such a review, may provide for any matter to be considered or determined by ESCOSA, or by some other specified person or body, on application by the Minister or a council; and

Amendment No 8 [Planning–2]—

Page 133, after line 14—Insert:

(ia) the ability to act on an application under paragraph (aa); and

Amendment No 9 [Planning–2]—

Page 133, line 17—Delete 'subsection (1)(c)' and substitute 'this section'

Amendment No 10 [Planning–2]—

Page 133, after line 31—Insert:

(6) A funding arrangement that provides for or includes the collection of contributions under Subdivision 3 in relation to prescribed infrastructure cannot be approved under subsection (3) unless (in relation to the component that relates to the imposition of those contributions)—

(a) the funding arrangement is consistent with a practice direction issued by the Commission with the approval of the Minister for the purposes of this subsection; or

(b) the funding arrangement has been approved by persons who, at the time that the Minister is submitting the funding arrangement for approval of the Governor under subsection (3), own (in total) at least the prescribed percentage of land within the relevant contribution area or areas.

(7) In connection with subsection (6)—

(a) the Commission must, in preparing a practice direction (or a variation of a practice direction) under subsection (6)(a), take reasonable steps to consult with—

(i) an entity or entities that, in the opinion of Commission, represent the interests of persons who are directly involved in providing infrastructure or developing land that may be subject to a scheme of the relevant kind under this Division; and

(ii) —

(A) if the practice direction (or variation) is specifically relevant to a particular council or councils—that council or those councils; or

(B) in any other case—the LGA,

and may consult with any other person or body as the Commission thinks fit; and

(b) the approval of any person under subsection (6)(b) will be obtained or ascertained in a manner determined by the Minister for the purposes of that subsection.

(8) In this section—

prescribed infrastructure means—

(a) infrastructure within the ambit of paragraph (i), (j) or (k) of the definition of essential infrastructure under section 3(1); or

(b) without limiting paragraph (a), infrastructure that relates to the provision of public transport; or

(c) other infrastructure brought within the ambit of this definition by the regulations;

prescribed percentage means 75% of the total area of land located within a contribution area or areas.

Amendments carried.

The CHAIR: We are now looking at amendment schedule 1, amendment No. 26 in the minister's name.

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

Amendment No 26 [Planning–1]—

Page 133, after line 31—Insert:

(6) If a report furnished to the ERD Committee under subsection (5) relates to the approval of a scheme for the collection of contributions under Subdivision 3 (in this section referred to as a contributions scheme), the ERD Committee must, after receiving the report—

(a) resolve that it does not object to the contributions scheme; or

(b) resolve to suggest amendments to the contributions scheme; or

(c) resolve to object to the contributions scheme.

(7) Subject to subsection (9), if, at the expiration of 28 days from the day on which the report was referred to the ERD Committee under subsection (5), the ERD Committee has not made a resolution under subsection (6), it will be conclusively presumed that the ERD Committee does not object to the contributions scheme and does not propose to suggest any amendments.

(8) Subject to subsection (9), if the period of 28 days referred to in subsection (7) would, but for this subsection, expire in a particular case between 15 December in 1 year and 15 January in the next year (both days inclusive), the period applying for the purposes of subsection (7) will be extended on the basis that any days falling on or between those 2 dates will not be taken into account for the purposes of calculating the period that applies under subsection (7).

(9) If the period applying under subsection (7), including by virtue of subsection (8), would, but for this subsection, expire in a particular case sometime between the day on which the House of Assembly is dissolved for the purposes of a general election and the day on which the ERD Committee is reconstituted at the beginning of the first session of the new Parliament after that election (both days inclusive), the period will be extended by force of this subsection so as to expire 28 days from the day on which the ERD Committee is so reconstituted.

(10) If an amendment is suggested under subsection (6)—

(a) the Minister may proceed to make such an amendment; or

(b) the Minister may report back to the ERD Committee that the Minister is unwilling to make the amendment suggested but the ERD Committee and, in such a case, the ERD Committee may—

(i) resolve that it does not object to the contributions scheme; or

(ii) resolve to object to the contributions scheme.

(11) If the ERD Committee resolves to object to the contributions scheme, copies of the report furnished to the ERD Committee under subsection (5) must be laid before both Houses of Parliament.

(12) If either House of Parliament passes a resolution disallowing the contributions scheme after a report has been laid before it under subsection (11), then the contributions scheme will cease to have effect.

(13) A resolution is not effective for the purposes of subsection (12) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the relevant report was laid before the House.

(14) If a resolution is passed under subsection (13), notice of that resolution must immediately be published in the Gazette.

(15) Subsections (6) to (14) (inclusive) do not apply in a particular case if—

(a) the Minister has consulted with the ERD Committee before the contributions scheme has been finalised; and

(b) the ERD Committee has resolved, on account of that consultation, that the scheme need not be subject to the processes set out in those subsections if or when is has been approved by the Governor as part of the relevant funding arrangement under subsection (3).

Mr GRIFFITHS: Can I get some clarification on that because there appears to be some doubling up. As I understood it, under schedule 1, amendment 26 referred to new clauses 6, 7, 8, 9, 10, 11, 12, 13, 14 and all these things, but amendment 10 from schedule 2 actually replaced 6, 7 and 8 at least, did it not, or am I wrong on that?

The CHAIR: Seven, eight, nine and 10 are going to change the numbering.

Mr GRIFFITHS: Okay, I had not caught up with that.

The CHAIR: Anyway, you are happy with them?

Mr GRIFFITHS: No, I am not happy with them.

The CHAIR: But they have gone through.

Amendment carried; clause as amended passed.

Clauses 161 to 170 passed.

Clause 171.

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

Amendment No 27 [Planning–1]—

Page 138, line 6—Delete 'project' and substitute 'scheme'

Amendment carried.

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

Amendment No 11 [Planning–2]—

Page 138, line 21—Delete 'transfer the balance of the fund' and substitute:

deal with the balance of the fund in accordance with the terms of the scheme, which may include the transfer of money

Amendment No 12 [Planning–2]—

Page 138, after line 26—Insert:

(4a) Despite a preceding subsection, any amount that is attributable to any money paid under Subdivision 3 must be applied for a purpose that benefits the community where the relevant contribution area or areas are located under a scheme approved by the Treasurer.

Amendment No 13 [Planning–2]—

Page 138, line 28—Delete 'or (4)' and substitute ', (4) or (4a)'

Amendments carried.

Ms CHAPMAN: I have tried to listen with interest as to exactly what those amendments were going to do, so I hope I am not replicating this, but this is the winding up provision of the fund, presumably if it is no longer needed and there is some surplus sitting in there. It is all going off to the planning and development fund which I assume to be a fund that will continue to be under the minister's control without any change of objects or purposes for which it is established, or to another fund or account determined by the Treasurer. My first question is: does the Treasurer have the opportunity therefore to direct that he or she gets the whole lot?

The Hon. J.R. RAU: It is the Treasurer's call.

Ms CHAPMAN: So there is no real need to have 'Planning and Development Fund' in there at all because that is just one of the many funds that he could direct it to go to, including to his—

The Hon. J.R. RAU: We would like it to go there as a matter of preference, unless he defers it off somewhere else.

Ms CHAPMAN: Anyway it says 'or' so it seems as though he has the call on that which raises the question as to why he should get it. I appreciate that if we no longer had a planning scheme of any kind and your whole department folded, etc., and we did not have any laws in relation to development or whatever that there could be that extreme circumstance, but why should the Treasurer be getting this money? Why should it not be available for the provision of infrastructure in the future that might be transferred to the local governing agency, council or corporation to provide for extra amenities for that community who, frankly, has made the contribution to it?

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT