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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Bills

South Australian Productivity Commission Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 3, page 3, after line 8—Insert:

principles of competitive neutrality has the same meaning as in the Government Business Enterprises (Competition) Act 1996.

No. 2. Clause 3, page 3, after line 8—Insert:

referring authority, in relation to a matter referred to the Commission for inquiry, means the Minister or a House of Parliament (as the case may be).

No. 3. Clause 5, page 3, after line 36 [clause 5(2)]—Insert:

(ab) to hold inquiries and report on matters referred, by resolution, by either House of Parliament;

No. 4. Clause 5, page 4, lines 3 and 4 [clause 5(2)(d)]—Delete paragraph (d) and substitute:

(d) to conduct, on its own initiative or on the referral of the Minister, research and policy development;

No. 5. Clause 5, page 4, after line 4 [clause 5(2)]—Insert:

(da) to hold inquiries, either on referral by the Minister or on its own initiative, on the implementation of the principles of competitive neutrality in relation to South Australian government businesses and business activities and to report to the Minister on such inquiries;

No. 6. Clause 8, page 4, after line 19—Insert:

(2) A person may only be appointed as a Commissioner if, following referral by the Minister of the proposed appointment to the Statutory Authorities Review Committee established under the Parliamentary Committees Act 1991—

(a) the appointment has been approved by the Committee; or

(b) the Committee has not, within 21 days of the referral, or such longer period as is allowed by the Minister, notified the Minister in writing that it does not approve the appointment.

No. 7. Clause 14, page 6, lines 10 to 26—Delete clause 14 and substitute:

14—Disclosure of pecuniary or personal interest

(1) A Commissioner who has a pecuniary or personal interest in a matter being considered or about to be considered by the Commission must, as soon as possible after the relevant facts have come to the Commissioner's knowledge, disclose the nature of the interest at a meeting of the Commission.

Maximum penalty: $25,000.

(2) A Commissioner who has a pecuniary or personal interest in a matter being considered or about to be considered by the Commission—

(a) must not vote, whether at a meeting or otherwise, on the matter; and

(b) must not be present while the matter is being considered at the meeting.

(3) Subsection (2) does not apply if—

(a) a Commissioner has disclosed an interest in a matter under subsection (1); and

(b) the Commission has at any time passed a resolution that—

(i) specifies the Commissioner, the interest and the matter; and

(ii) states that the Commissioners voting for the resolution are satisfied that the interest is so trivial or insignificant as to be unlikely to influence the disclosing Commissioner's conduct and should not disqualify the Commissioner from considering or voting on the matter.

(4) Despite section 15, if a Commissioner is disqualified under subsection (2) in relation to a matter, a quorum is present during the consideration of the matter if at least half the number of members who are entitled to vote on any motion that may be moved at the meeting in relation to the matter are present.

(5) The Minister may by instrument in writing declare that subsection (2) or subsection (4), or both, do not apply in relation to a specified matter either generally or in voting on particular resolutions.

(6) The Minister must cause a copy of a declaration under subsection (5) to be laid before both Houses of Parliament within 14 sitting days after the declaration is made.

(7) Particulars of a disclosure made under subsection (1) at a meeting of the Commission must be recorded—

(a) in the minutes of the meeting; and

(b) in a register kept by the board which must be reasonably available for inspection by any person.

(8) A reference in subsection (2) to a matter includes a reference to a proposed resolution under subsection (3) in respect of the matter, whether relating to that member or a different member.

(9) A contravention of this section does not invalidate any decision of the Commission.

(10) Section 8 of the Public Sector (Honesty and Accountability) Act 1995 does not apply to a Commissioner.

No. 8. Clause 20, page 8, lines 3 and 4 [clause 20(1)]—

Delete 'the Minister, by written notice, refers to the Commission.' and substitute:

—

(a) the Minister, by written notice, refers to the Commission; or

(b) either House of Parliament, by resolution, refers to the Commission.

No. 9. Clause 20, page 8, line 5 [clause 20(2)]—After 'written notice' insert:

or resolution (as the case requires)

No. 10. Clause 20, page 8, line 6 [clause 20(3)]—Delete 'The Minister' and substitute 'The referring authority'

No. 11. Clause 20, page 8, line 7 [clause 20(3)(a)]—Delete 'Minister' and substitute 'referring authority'

No. 12. Clause 20, page 8, line 14 [clause 20(4)]—Delete 'Minister' and substitute 'referring authority'

No. 13. Clause 21, page 8, after line 18 [clause 21(2)]—Insert:

(aa) the referring authority; and

No. 14. Clause 21, page 8, line 25 [clause 21(3)]—Delete 'Minister' and substitute 'referring authority'

No. 15. Clause 22, page 8, line 29 [clause 22(1)]—Delete 'Minister' and substitute 'referring authority'

No. 16. Clause 23, page 8, lines 35 and 36 [clause 23(1)]—

Delete 'to the Minister' and substitute:

—

(a) in the case of an inquiry referred by the Minister—to the Minister; or

(b) in the case of an inquiry referred by a House of Parliament—to the presiding member of the relevant referring House.

No. 17. Clause 23, page 9, after line 4—Insert:

(3) The Minister must, within 90 days of receiving a report delivered to the Minister by the Commission under subsection (1), provide a response to the Commission on its report and the Commission must publish the Minister's response on its website.

No. 18. Clause 23, page 9, after line 4—Insert:

(4) The Chair must, at least once in each year and at such other times as is required, appear before the Economic and Finance Committee established under the Parliamentary Committees Act 1991 in relation to a report on any inquiry conducted by the Commission.

No. 19. New clause, page 9 after line 24—Insert:

26—Review of Act

(1) The Minister must cause a review of this Act and its administration and operation to be conducted on the expiry of 3 years from its commencement.

(2) The review must be completed within 6 months and the results of the review embodied in a written report.

(3) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after receiving the report.

Consideration in committee.

The Hon. S.S. MARSHALL: I will move that this house agrees to amendments Nos 1,4,17 and 19; disagrees with amendments Nos 2,3, 6 to16, and 18; and disagrees to amendment 5 and makes an amend in lieu thereof.

This is an important bill before the house. It is something that we on this side of the house have talked about for an extended period of time. We have a desire to improve the overall productivity of our state. We have put forward a model. We have consulted widely regarding various other bodies of its type that exist around the rest of the country. I am convinced that what we have put forward is a model which will work well and serve the people of South Australia extraordinarily well.

I thank everybody who to date has made a contribution to the debate both in this house and in the other place. We have now received some amendments from the other place. We have already indicated that some of these we are prepared to agree with, in particular amendments Nos 1,4,17 and 19. There are others, though, that we are not prepared to accept.

We make it clear that this is a body without an exceptionally large budget. Having members of parliament with the right to refer a range of issues to this body could end up with a very significant workload that is not envisaged by the government in this first instance. We believe that this is the right body with the right format that has been put forward and so, for the reasons that I have outlined, we will not be supporting the appointment process from the parliament. We will not be supporting other amendments that have been put forward, in particular, as I said, those amendments Nos 2,3, 6 to16, and 18.

With regard to amendment No. 5, we are putting forward an amendment in lieu, which I understand has been discussed with the Hon. Mr Darley of the other place. We put that forward as an alternative that provides some clarification regarding issues that he has raised regarding competitive neutrality. I would make the point to the house that this is not a piece of legislation that will determine whether or not a Productivity Commission exists. We can establish a body like this without it going through the parliament, and we will if we are required to. We are 100 per cent committed to the establishment of a body like this.

We would ideally like to do it via legislation, but if that is not possible we will make other arrangements. Executive government, of course, establishes a range of inquiries on behalf of the people of South Australia. We see this in various formats already: royal commissions and other commissions of inquiry. The previous government did a lot of work seeking an inquiry on a range of issues where they would go and appoint a person to do that work. We believe that the model we have put forward will ensure that in many circumstances the work of these individual inquiries can be done by the productivity commission. They can be done cost effectively, and they can be done in a more timely manner.

Under the previous arrangements, governments would have to essentially decide on the scope and appoint a commissioner. That commissioner would then have to go and organise their staff and their office. Invariably, those inquiries were not peer reviewed. I think there are a lot of advantages in having a productivity commission in place. It provides another opportunity for the government to send an issue for inquiry to that productivity commission.

That means that the inquiry is not stalled while the office and its researchers are being established, and I believe that it will yield more cost-effective, timely results for the people of South Australia. For those reasons, as I said, we will accept some of the amendments proposed by the other place, but we will be disagreeing with others.

The ACTING CHAIR (Mr Duluk): The member for Lee.

Mr MULLIGHAN: Thank you, Chairperson, I think—

The Hon. J.A.W. Gardner: Chairman.

Mr MULLIGHAN: Sorry; the politically correct term offends you, does it, member for Morialta?

The ACTING CHAIR (Mr Duluk): Order! Chairman is fine.

Mr MULLIGHAN: Thank you, Chairperson. I am happy to make some general comments before we get to each amendment in turn, as the Premier has done. I indicate that the opposition will be seeking to support those amendments which have been made in the other place. They have been done, as far as I am aware, from a genuine willingness by the opposition and the crossbench to enhance the transparency of the productivity commission, as well as some of the roles that it can undertake on behalf of the government and, given the nature of some of the amendments, undertake on behalf of the parliament. This would occur if either house on motion should choose to refer an inquiry to it.

I must say that I am a little disappointed to hear some of the language that has come from the Treasurer and the Premier. Without wanting to be inflammatory, I would say it is almost churlish. Both have made reference to the fact that, unless they get the bill they demand from the parliament, there is no point setting up a productivity commission legislatively, and they will do one by virtue of the powers vested in executive government.

It is an important point to make, because that was the very first question I asked in this place in the committee stage of the bill. Why is the government seeking to establish a productivity commission in the way in which the original bill envisages, with an exclusive relationship between the minister and the commission? There are all the interactions from the appointments of the commissioners, or any declaration that might need to be made by a commissioner about whether any other remunerated employment is being undertaken, the referral of inquiries from the minister to the commission, if it is established, and the receipt of the work of those inquiries by the commission back to the minister, and that is it.

I asked: why not just establish it through executive government? The first words from the Premier's mouth while we were in committee stage—the first reason—was 'transparency'. You do not need to read too deeply into the Hansard of the other place while this bill was in the committee stage to understand that that is precisely what the crossbench and the opposition were seeking in the amendments that were moved.

I tried to keep up with the relatively swift recollection of the Premier as to which were being supported and which were not, but it is a little disappointing, based on those which are not being supported. However, I will go into a little bit more detail as we come across each amendment for debate.

The ACTING CHAIR (Mr Duluk): As the member for Lee has indicated, it looks like we might have to go through this amendment by amendment.

Amendment No. 1:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 1 be agreed to.

Mr MULLIGHAN: I will speak to the amendment. I think this is an entirely reasonable amendment from the Hon. Mr Darley of the other place. Those who have paid keen attention to this bill might perhaps know that the establishment of the federal Productivity Commission under the commonwealth act was principally for the purpose of investigating complaints regarding competitive neutrality of government agencies.

I spoke at some length in my second reading contribution, as the bill originated here, about why it was the case that had come at the end of what was not quite finished, but what had been a reasonably extensive program of competition policy and trying to ensure that government business enterprises at both the federal and state levels were operating competitively and without unfair advantage over their private sector counterparts. It was still necessary at that point to establish this commission to undertake those sorts of complaints because states, including South Australia and just about every other jurisdiction, still had many government-owned enterprises which were, from time to time, subject to those complaints.

The Hon. Mr Darley's experience as a public servant, let alone as a member of parliament, predates most, if not all, of us. You always have to qualify that, given the presence of the Hon. Rob Lucas in the other place. The Hon. Mr Darley would remember quite well, particularly from his time as valuer-general, the sorts of complaints that can be made against public authorities. In particular, in his former role as valuer-general, the office responsible for setting valuations for properties, people would complain about those from time to time to the valuer-general, if not about their council rates then about their water rates, which rely on those property valuations.

At the same time, over the last 30 years from time to time we have had institutions that have sought the opportunity to compete in the provision of potable water to South Australians, whether it is industry, business or residences. As to that issue of competition for what is clearly, I would argue, good public health and safety reasons, a single market operator, there would be from time to time complaints. With this first amendment, the Hon. Mr Darley seeks to enable the productivity commission in South Australia in this bill to undertake investigations of complaints of competitive neutrality.

In a later amendment, amendment No. 5, which I appreciate the Premier has indicated the government will move an alternative amendment to—and we will wait to see what that alternative amendment is—the government has attempted to dissuade the Hon. Mr Darley and say that the Government Business Enterprises (Competition) Act is a more appropriate regime for those complaints to occur. Unsurprisingly, The Hon. Mr Darley, as well as the opposition, disagrees with the government on that point, and for good reason—because any such inquiries undertaken under the auspices of the Government Business Enterprises (Competition) Act are creatures of the minister responsible for that act.

It is easy to see how there can be a lack of both transparency and independence if an investigation was to be undertaken under that regime, as opposed to a body like the South Australian productivity commission, which demonstrably should be at more arm's length than the investigation which could be held under the Government Business Enterprises (Competition) Act. That is the very point with which the Hon. Mr Darley has been most concerned.

I must admit that the requirement of the Hon. Mr Darley to impose this task on the productivity commission, as it is to be established here in South Australia, was not front of mind to the opposition. I have given the example of SA Water and the provision of potable water to South Australians because that is one of the very few government business enterprises that is left. Perhaps from time to time others might crop up about the Public Trustee or so on, which may be of interest to some members, particularly those familiar with operating in the area of wills and probate.

Given that the Hon. Mr Darley has put this amendment, it is of no burden much at all for a productivity commission to be conducting that task. It also mirrors quite closely one of the key roles of the federal Productivity Commission. The government's move to strike out this amendment—

The Hon. J.A.W. Gardner: We haven't; we are supporting it.

Mr MULLIGHAN: Sorry, to support this. It is one we support greatly as well. When it comes to amendment No. 5, the related amendment—thank you for reminding me—that is where we will take umbrage because the—

The Hon. C.L. Wingard: Once you get there. I'm waiting.

Mr MULLIGHAN: Yes, we will get there, and you will be waiting a long time, Corey.

The ACTING CHAIR (Mr Duluk): Order!

Mr MULLIGHAN: That is where we will take umbrage. Amendment No. 1, the enabling amendment for amendment No. 5, is reasonable. The government, inasmuch as it supports it, should support amendment No. 5 as it has been put by Mr Darley.

Motion carried.

Amendment No. 2:

The Hon. S.S. MARSHALL: The government will not be supporting this amendment. I move:

That the Legislative Council's amendment No. 2 be disagreed to.

Mr MULLIGHAN: This is an amendment made in the other place which should stand, and it is disappointing that the government will not be supporting this particular amendment. This is one of a number of amendments that are related to one another, and together, in effect, they give the opportunity for either house of parliament to refer an inquiry to the productivity commission.

This is not a great ask of the commission; in turn, it is not a great ask of the government to agree to this amendment. There have been all sorts of excuses that have been offered in the other place by the Treasurer. He claims that this would be too resource intensive and that this would be too expensive. He has tried to give the illusion that there would be many referrals that could be made by either house of parliament and could bog down the work of the commission and detract from the work the government of the day refers to the commission.

Nothing could be further from the truth. It is a very rare beast, indeed, that there can be sufficient support in this place for the house to move a referral to the commission. Of course, it would not originate from the government's side because the executive would have already made its referrals to the commission. It then becomes, in this place, whether an opposition would be successful in moving such an inquiry and, of course, it would not be. If we were successful in doing that, we would probably be on the other side of the chamber, rather than on the side that we occupy.

So it is not a problem for down here. If you turn your attention to the capacity of the other place to refer an inquiry to the productivity commission under this regime, relating to amendment Nos 2 and 3 and many of the others that the Premier indicated the government will not be supporting, they give moreover the opportunity to the other place to refer inquiries. I said it is a rare beast down here, but it is almost as rare up there. The parallel, which the Treasurer drew in his remarks as he opposed this amendment and this series of amendments, is that it is open to the council to establish all manner of select committees to inquire into matters in which it is interested.

That does not happen that often. It did not happen very often under the previous Labor government, despite the efforts of the then Liberal opposition, and it is unlikely to happen this time unless there is a particular issue which is of broad concern to the council. I say 'broad concern' because you would need more than just the opposition and one crossbencher or more than just the opposition and one party in the crossbench. You would need at least the opposition and at least two parties across the crossbench to establish a referral against the wish of the government. That is why it is likely to be rare.

I also raise it, and it is timely that we have the Minister for Local Government in here for this part of the debate, because one of the crossbench parties has indicated that they are particularly interested in having the commission do some work around the bill which has been presented on rate capping. If a member of parliament who is finding themselves under considerable pressure to support a government bill on something like rate capping makes entreaties to the extent that they would like an independent external panel of people who are either economists or economically minded to thoroughly research and provide advice to them on such a bill, that is not such an unreasonable request.

As I have already pointed out, it will not be a frequent request. You can see that if the government is genuine about wanting to pursue both this bill and bills like the rate capping bill where members are asking for that sort of support which is not available to them and is not available to the parliament outside of this sort of body, then it is clear to see why the government should support it.

This is, I think, when these amendments were being moved in the other place where the Treasurer said that the government will need to reconsider whether we have one of these bodies in the first place. I think that is a disappointing attitude because it indicates that a government is only interested in the parliament rubberstamping its legislation, not genuinely being involved in its development or formation and not genuinely interested in the views of the opposition or more particularly the crossbench.

It is not a very positive message to send members of the crossbench, particularly those who are relatively new to the role of MP, that the government is disinterested in their views or disinterested in the contributions they can make to improving legislation. We support the amendment as it stands and we will be opposing the government's efforts to remove it.

The committee divided on the motion:

Ayes 23

Noes 20

Majority 3

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Ellis, F.J. Gardner, J.A.W.
Habib, C. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Close, S.E. Cook, N.F. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Koutsantonis, A.
Malinauskas, P. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Rau, J.R.
Stinson, J.M. Wortley, D.
PAIRS
McBride, N. Weatherill, J.W.

Motion thus carried.

Sitting extended beyond 18:00 on motion of Hon. J.A.W. Gardner.

Amendment No. 3:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 3 be disagreed to.

Mr MULLIGHAN: As I indicated with regard to amendment No. 2, we will oppose the government's efforts in trying to knock off this amendment. For very good reason, there is a strong desire by the crossbench to have the opportunity to refer matters and seek advice from the productivity commission. Just about all members of the crossbench and opposition made it clear that they support this measure, and the assertion from the government, first via the Treasurer and the Premier, that this makes the commission unworkable is just simply not true.

I would urge the Premier, if he does want this body established and he does want it to be a genuine agency that can conduct inquiries not just on the whim of the minister or the government of the day but as a broader service to the people of South Australia as they are represented by members of parliament, to support the retention of this amendment and not seek to oppose it.

The committee divided on the motion:

Ayes 21

Noes 18

Majority 3

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Cook, N.F. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Malinauskas, P. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rau, J.R. Stinson, J.M. Wortley, D.
PAIRS
Habib, C. Close, S.E. McBride, N.
Weatherill, J.W. van Holst Pellekaan, D.C. Koutsantonis, A.


Motion thus carried.

Amendment No. 4:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 4 be agreed to.

Mr MULLIGHAN: I am glad that this amendment is being supported by the government. It is a relatively simple and straightforward amendment, and it means two things: not only will the commission be able to be in receipt of requests for inquiries by the commission but they can conduct research and policy development, which I suspect is pretty much in line with what the government's expectation—

Members interjecting:

The CHAIR: Member for Lee, take your seat for a minute. I am going to ask that all other members will listen to the contribution from the member for Lee in silence. Member for Lee.

Mr MULLIGHAN: Thank you for your protection, Mr Chairperson. As I was saying, it means two things: not only can they just receive inquiries referred from the minister but the minister can also ask them to conduct research and policy development, which I am sure is going to be of use to the minister and the government of the day. It also means that they can do that at their own behest. That is positive and a step not too far away from what we were previously discussing about either houses of parliament being able to make requests of the commission. I will not go on. I am pleased that the Premier and the government are supporting this amendment.

Motion carried.

Amendment No. 5:

The Hon. S.S. MARSHALL: I move:

That the House of Assembly disagrees with the amendment made by the Legislative Council and makes the following amendment in lieu thereof:

Amendment No 5—

Page 4, after line 5 [clause 5(2)]—Insert:

(ea) to conduct investigations on receipt of complaints alleging infringements of the principles of competitive neutrality under the Government Business Enterprises (Competition) Act 1996;

New Schedule, page 9, after line 24—Insert:

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Government Business Enterprises (Competition) Act 1996

2—Insertion of section 15A

Before section 16 insert:

15A—Interpretation

(1) In this Part—

Chair means the Chair of the Commission;

Commission means the South Australian Productivity Commission established under the South Australian Productivity Commission Act 2018.

(2) For the purposes of this Part, a reference to a Commissioner includes a reference to a Commissioner appointed under the South Australian Productivity Commission Act 2018 (and sections 6(2) and 7 apply to such a Commissioner for the purposes of an investigation under this Part).

3—Amendment of section 17—Complaints

(1) Section 17(1)—delete subsection (1) and substitute:

(1) A person that competes, or seeks to compete, in a particular market alleging an infringement of the principles of competitive neutrality by a government or local government agency may make a complaint to the Minister or the Commission.

4—Amendment of section 18—Assignment of Commissioner

(1) Section 18(1)—after 'neutrality' insert 'received by the Minister'

(2) Section 18—after subsection (1) insert:

(1a) The Chair may assign a Commissioner appointed under the South Australian Productivity Commission Act 2018 to investigate complaints of infringements of the principles of competitive neutrality received by the Commission.

(3) Section 18(2)—after 'the Minister' wherever occurring insert 'or the Chair'

5—Amendment of section 19—Investigation of complaint by Commissioner

Section 19(3)—after paragraph (a) insert:

(ab) the Commission; and

6—Amendment of section 21—Annual Report

(1) Section 21—after 'this Act' second occurring:

by a Commissioner appointed under Part 2

(2) Section 21—after its present contents (now to be designated as subsection (1)) insert:

(2) The annual report of the South Australian Productivity Commission under the South Australian Productivity Commission Act 2018 must include a report on the investigations carried out under Part 4 by a Commissioner appointed under the South Australian Productivity Commission Act 2018 for the relevant financial year.

Long title, page 1—After 'Commission,' insert:

to make related amendments to the Government Business Enterprises (Competition) Act 1996

The CHAIR: Do you want to speak to that, member for Lee?

Mr MULLIGHAN: I will do my best, given that I do not have a copy of the amendment, which is unfortunate.

The CHAIR: We will get that for you, member for Lee.

Mr MULLIGHAN: My guess, and I am happy to correct this in the next moment or two once it becomes available, is that the amendment is similar to what the Hon. Mr Lucas of the other place was discussing. I have just been handed a copy of the amendment. Indeed, it is a facsimile of the amendment that the Hon. Mr Lucas was discussing in the other place when this issue which the Hon. Mr Darley raised previously was being discussed; that is, is there a mechanism for complaints about competitive neutrality to be investigated and where best does that investigation take place?

The Hon. Mr Darley makes the very reasonable point that, given the requirements of the federal Productivity Commission Act, which was established, amongst other purposes, to investigate such complaints, that a South Australian productivity commission, if one is to be established, would be a good home for it and that it would provide a degree of independence that locating such a complaint within the auspices of the Government Business Enterprises (Competition) Act 1996 would not provide such an inquiry.

Understandably, it is of great concern to Mr Darley that, if a complaint was to be made under the regime which has been proposed by the Premier in this alternative amendment, insufficient satisfaction can be provided about the independence of that inquiry because an investigation being conducted under that Government Business Enterprises (Competition) Act is a creature of the minister. It would not be a creature of a more independent body such as the South Australian productivity commission, where people quite separate from the minister would be undertaking investigations into those complaints and reporting appropriately.

I do not really understand why the Treasurer, and hence also in this place the Premier, is not accommodating the Hon. Mr Darley's quite reasonable request. I might guess that they might worry that that opens the door to some consideration that the government would be amenable for references to be made to the commission by members of parliament in the guise of the amendments we have just been discussing and considering. But I do not think it does that. This is quite a discrete, quite separate and quite well-understood term of reference for a productivity commission in the Australian context.

Given that this is the role of the federal body, I agree with Mr Darley that, if the ability to consider such complaints were to be established, then it should be within the productivity commission. It is unfortunate that the government does not agree with the Hon. Mr Darley. I think it is a strong whiff of belligerence by the Treasurer, and now being echoed by the Premier, in not accepting the Hon. Mr Darley amendment to have the commission do this work.

The other body which reasonably could consider this sort of complaint might be another advisory agency which is more independent than the minister. That might be the Essential Services Commission of South Australia. But, given the name the objects of the enabling legislation, the emergency services commission act, it is understandable that neither the government nor Mr Darley has sought to locate it in that process.

Let us be very clear: the Government Business Enterprises (Competition) Act was established to provide legislative guidance to the conduct of government business enterprises. It is there for the benefit of the business enterprises that are being complained about when a competitive neutrality complaint is made. So you can quickly understand the discomfort that the Hon. Mr Darley has with the government's position. We, like Mr Darley, do not agree with the government's position on this, and we do not support the government's desire to knock this amendment off.

The committee divided on the motion:

Ayes 21

Noes 18

Majority 3

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Gardner, J.A.W. Habib, C. Harvey, R.M. (teller)
Knoll, S.K. Luethen, P. Marshall, S.S.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Cook, N.F. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Malinauskas, P. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rau, J.R. Stinson, J.M. Wortley, D.
PAIRS
McBride, N. Weatherill, J.W. Sanderson, R.
Koutsantonis, A. van Holst Pellekaan, D.C. Close, S.E.

Motion thus carried.

Amendment No 6:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 6 be disagreed to.

Mr MULLIGHAN: It is of great concern to the opposition, and of great concern to crossbenchers in the other place, that the government is choosing to withhold its proposed commissioners away from public scrutiny. I remind the house of the first comment the Premier made during the committee stage about why the need for the productivity commission—and his response was transparency.

That comment from the Premier is littered throughout Hansard in response to the reason why the original bill had been drafted in the way it was. What this amendment from the other place seeks to do is enhance the transparency around those people who are proposed to be commissioners on this productivity commission. It is not at all an unreasonable request. It comes after a succession of comments from the Premier about the status of the commissioners.

The first comment we had from the Premier was that the commission and its membership would be announced within the first 30 days of this government, which by any reckoning would place it at 18 April. That certainly was not achieved. It was not until we had the first sitting week back at the beginning of May to try to gloss over that unmet election commitment from the Premier, that he said the commitment was actually to introduce legislation into the house—which is not what was said.

In that comment to the parliament, in that ministerial statement, the Premier was quick to say that one of the first things he did in becoming Premier was to contact people and get cracking on inviting people to become commissioners for the productivity commission. This is surprising not only for the fact that we have already had some disagreement both in this place and publicly about how the government could go so far as to advertise for members to its health advisory boards without the enabling legislation starting, but in this instance how we could have the Premier saying that not only would the membership be announced within the first 30 days but that from day one of the formation of his government from 19 March, people were being spoken to and people were being invited to become members of this commission?

During the committee stage of this bill, I asked whether any people had been given an undertaking or had been invited to be commissioners and, somewhat worryingly, the Premier declined to answer that question. It was also interesting that in a related matter the Premier declined to offer any advice to the house about the level of remuneration that would be offered to these commissioners.

Given that we are going through this whole process, with the government choosing to bring legislation to the parliament to establish this productivity commission, it is not only expected that we would want some opportunity in either house of parliament to ask for some advice or some work to be done at the request of members of parliament on motion but it is not unusual, given the importance of this particular role—and particularly if you look at the context of the federal Productivity Commission and the significance of their role in providing advice on key issues to both the government of the day and to the Australian community—that the parliament would want to know who these people are and who the government is going to choose.

Is this going to be a body populated by the past 'greatest hits' of the Liberal Party? Is this going to be a body populated by people who are actually quite practised, skilled and adept in fields of public policy development, economics or understanding what it is to operate within Australian industry or business in South Australia? Or, as are the requirements within the federal act, which have been negated by amendments which were lost in the other place, will there even be particular skill sets and experiences required of commissioners of the productivity commission?

I raise that in reference to those clauses in the commonwealth act that require a diversity of experience and skill in the productivity commission. That includes not only people who are experienced in operating in Australian industry but also those who are familiar with and experienced in ecologically sustainable development. It also requires people who are experienced in the social and welfare impacts of economic change and development. These are all critical issues and skill sets likely to be required or traversed in the conduct of the work of the commission if their body of work is indeed to do what the Premier has advised this place; that is, advise on microeconomic changes for the benefit of improving the productivity of the South Australian economy.

Let us put this in context. We have had a federal Productivity Commission inquire into and require the end of automotive industry assistance. That has impacted South Australia and Victoria to a great extent, although fortunately not as significantly as the Premier was worried about. He was running around telling people we were going to have double digit unemployment rates in the not too distant future. Fortunately, through the good work of the former Labor government, we have avoided that.

What we are concerned about is if we have a number of commissioners who are to be appointed to this body whom we know nothing about, whom we have no comfort that they have sufficient skills or experience and whom we may not know whether they have particular preconceived views or predilections about what changes should be made by a state government when it comes to those matters that influence economic policy. This is perhaps not a usual requirement of a body, but it is a necessary requirement given that the stature and the role of this commission is quite different and quite separate from what the parliament has been asked to enact previously.

This is a body that will operate separately and above and beyond those other economic advisory bodies that governments and, indeed, this new government, will also have. This includes bodies such as its Economic Advisory Council, which is replacing the economic development board. It also includes the advice which comes from a frank and fearless independent Public Service in the Department of Treasury and Finance and the Department of the Premier and Cabinet, as central agencies, or even advice which is provided on request from agencies such as the Essential Services Commission of South Australia.

Rather than rely on those three groups of economic analysis and advice, we are seeking to establish something quite separate above and beyond that. It is not unreasonable that the opposition and the crossbench have deliberately sought some transparency—and I use the Premier's word again, 'transparency'—about who these commissioners will be. We do not support the government's moves in trying to knock this amendment off.

The committee divided on the motion:

Ayes 21

Noes 18

Majority 3

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Habib, C. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Cook, N.F. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Malinauskas, P. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rau, J.R. Stinson, J.M. Wortley, D.
PAIRS
Gardner, J.A.W. Close, S.E. McBride, N.
Weatherill, J.W. van Holst Pellekaan, D.C. Koutsantonis, A.

Motion thus carried.

Amendment No. 7:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 7 be disagreed to.

Mr PICTON: I have to say that the opposition is very disappointed that the government has said that they are going to oppose this particular amendment.

The CHAIR: Member for Kaurna, could you take a seat for a moment, please. The member for Kaurna is speaking to the house. The house is in committee. I ask that all listen intently. Member for Kaurna.

Mr PICTON: Thank you. If not intently, then leave the chamber, I am sure. The opposition is very disappointed for a number of reasons that the government is not supporting this amendment. One is that it should be quite clear for obvious reasons that members appointed to the productivity commission should have to declare particular interests that they may have.

The advice that the productivity commission will be giving to the parliament of the people of South Australia will be in regard to a number of very important economic features and recommendations for our state, and it is inherently important that people know that that information, and that advice is not being guided, or that there not be any perception that it could be guided by particular interests that that person may hold or may have. This is very important for people's confidence in the productivity commission and their work.

The genesis of this is that the opposition recommended a broader range of disclosure requirements that should be in place, akin to what is in place for members of parliament and what is in place for members of local government at the moment. Unfortunately, we were not able to get the upper house to agree to that, but we were able to get agreement to what this regime is.

Funnily enough, this regime is almost identical to what the government had previously agreed to in another piece of legislation only days prior. The government has agreed that this clause should be agreed to for the health boards, so all health boards will have to agree to disclosure arrangements as detailed in our amendment No. 7 for all those 10 health boards across South Australia but, unfortunately, the government is saying that they will not agree to that for the productivity commission.

Why is it important for the health boards to have to disclose this but not for the productivity commission? Why should the people of South Australia not be assured that the productivity commission does not have conflicts of interest attached to it? As I said, we would like this to go even further than it does. We have accepted this compromise akin to what the government has promoted. I think the government introduced it themselves in relation to the health boards. If there is nothing to hide, I think there is no reason whatsoever why the government should not be supporting that in this regard as well.

Mr MULLIGHAN: I was inspecting the vibration monitor in the north-western corner of the building, Chair, so I apologise for being momentarily out of earshot of the member for Kaurna's comments. I will not try to repeat all of them except to say that I would argue, even more so than for the health boards, given the matters the productivity commission is likely to consider, a disclosure regime of pecuniary interests or personal interests is most important here.

For example, if you cast your mind back to the discussion I had about competitive neutrality and the role of productivity commissions on the back of reform in competition policy, states were required to review the regulation around particular industries and identify ways to encourage competition within those industries. That might be the government ceasing to be a sole provider of goods or a service, or it might be to remove red tape or provide some sort of facilitation for expanded market opportunities.

Industry reviews were required to be carried out on a consistent set of industries amongst the jurisdictions. Of course, there were industries that for many years were not in the view of the then federal government—the Keating government and the subsequent Howard government—and also the Productivity Commission, which was established from 1998 onwards. They took the view that not every industry was thoroughly enough reviewed, and I will give a couple of examples of those: the pharmacy industry, the taxi industry and the liquor industry.

Industry reviews took place, but there were—and there remains to this day—strong arguments about whether a sufficient change, either in South Australia or in other jurisdictions, was enacted to remove red tape or to enhance or facilitate greater competition. The reason I raise all that is that it is conceivable that the government would seek the services of an individual to become a commissioner on the productivity commission.

Without an appropriate disclosure regime, let alone a transparent disclosure regime that extends beyond the minister seeking the appointment, what is to say that somebody might not have an interest in a pharmacy? What is to say that somebody might not have an interest in an industry, for example, pubs or clubs, which may be the subject of red tape review and reform? The member for Kaurna has already pointed out, because he has a personal and direct interest in this matter, given his involvement and stewardship of the—

Mr Picton: Not a pecuniary interest.

Mr MULLIGHAN: Not a pecuniary interest, I should say. It is a legislative interest.

Mr Pederick: We will check that.

Mr MULLIGHAN: That's right. Is it declared? We will find out soon, won't we? We will find out, 'Name him!' There are disclosure regimes going through the bill that established the health boards. The original regime that was put in the consideration of that bill is the same as the regime proposed initially as an amendment to this bill, which was the same disclosure regime for pecuniary interests that members of parliament offer.

It was put as an amendment for two reasons; one is that it is pretty thorough, I think we would all agree. Some would argue that it is not quite thorough enough. Some would argue from time to time that it might be too thorough, but it is thorough and transparent and it also avoided an effort to try to contrive an alternative model, which in itself would be endlessly debated in the council or indeed in this place, so this was taken as a proxy because there had been some precedent for it.

It is funny now that we see that this is important for a health board but not important enough for a small group of people who will have direct influence over a minister and a government of the day on any stewardship or superintendence of the state economy. I think that is remarkable. I actually assumed—and perhaps I misheard the Premier—that he would be supporting amendment No. 7 because it was a compromise that was reached on the floor in the council after the opposition withdrew its original amendment and replaced it with this one, based on what was in that health board bill, but I am extremely disappointed that he is choosing to oppose this amendment.

The committee divided on the motion:

Ayes 21

Noes 18

Majority 3

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Duluk, S. Ellis, F.J.
Habib, C. Harvey, R.M. (teller) Knoll, S.K.
Luethen, P. Marshall, S.S. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Cook, N.F. Gee, J.P. Hildyard, K.A.
Hughes, E.J. Malinauskas, P. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rau, J.R. Stinson, J.M. Wortley, D.
PAIRS
Gardner, J.A.W. Close, S.E. McBride, N.
Weatherill, J.W. van Holst Pellekaan, D.C. Koutsantonis, A.

Motion thus carried.

The Hon. S.S. MARSHALL: Amendments Nos 9 to 16 are, essentially, all consequential upon amendment No. 8. I am happy to deal with these individually or en bloc, whichever the opposition would prefer. Certainly, from our perspective we will be moving that we disagree to amendment No. 8.

Mr MULLIGHAN: Indeed, amendment No. 8 is related to—

The Hon. S.S. MARSHALL: Amendments Nos 8, 9, 10, 11, 12, 13, 14, 15 and 16. In other words, you could not agree to amendment No. 9 if amendment No 8 is lost.

The CHAIR: We will deal with amendment No. 8 now.

Mr MULLIGHAN: —Amendment No. 3, which we have already decided. If the Premier can contain himself, as a result I understand that we are permitted to deal with consequential amendments on the same clause, so I am happy to deal with amendments Nos 8 to 12, which relate to clause 20.

The CHAIR: That seems reasonable. Premier.

The Hon. S.S. MARSHALL: I am happy to do that. I agree that amendments Nos 13 and 14 deal with clause 21, but it is still the referring authority.

The CHAIR: So amendments Nos 8 to 12 relate to clause 20.

Amendments Nos 8 to 12:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendments Nos 8 to 12 be disagreed to.

Motion carried.

Amendments Nos 13 and 14:

The Hon. S.S. MARSHALL: We can deal with proposed amendments Nos 13 and 14 en bloc because they both refer to clause 21. I move:

That the Legislative Council's amendments Nos 13 and 14 be disagreed to.

Mr MULLIGHAN: I think the Premier can guess our position. We are happy for that to be put.

Motion carried.

Amendment No. 15:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 15 be disagreed to.

Motion carried.

Amendment No. 16:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 16 be disagreed to.

Mr MULLIGHAN: I obviously indicate my opposition to what the government is proposing here in not accepting this amendment. I will not speak at great length, but I will perhaps note here that clause 23 in the bill relates to reports of the commission.

During the committee stage of this bill, the Premier made it clear that it was his expectation that the commission, in its conduct of an inquiry, would produce interim reports amongst other reports such as discussion papers and so forth, which is not dissimilar to the practice of the commission as established by the commonwealth parliament.

Those draft or interim reports provide an important opportunity for the public—let alone any other interested parties, members of parliament and so on—to have an understanding of the work that has been undertaken by the commission, the evidence which has been presented to the commission and even some draft or early recommendations that the commission is likely to make to the body or to the authority that has asked it to conduct the inquiry.

Based on those comments from the Premier, where he said that he envisaged that the commission would produce interim or draft reports—my recollection was that it was in relation to this discussion or a related discussion in the committee stage—the Premier invited me to move an amendment, so we did in order to give effect to the commission being able to, indeed to be required to, issue draft reports. I think it is disappointing that clause 23, we find now, in discussing reports, does not have that capacity.

Nonetheless, the intent of the amendment as it has come back from the other place is really an enabling amendment so that the conduct of inquiries can be not just at the behest of the minister but by motion of either house of parliament. We have discussed that in some detail previously, so I will leave my comments there, except to note that, despite the Premier giving an indication to this place that he expected draft reports to be provided by the commission and an invitation from the Premier to move an amendment to that effect, we have seen from the government a rejection of that after the opposition and crossbench have put that amendment.

Motion carried.

Amendment No. 17:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 17 be agreed to.

Mr MULLIGHAN: I am pleased that there is some support for some modicum of transparency from the government, particularly in the part of the commission's work where it has conducted its inquiry and it has provided a report to the minister. Of course, what we are concerned about is a circumstance in which a minister has asked for an inquiry to be done, a report has been delivered in return to the minister and then the public never hears anything about it. Not only does the public not hear anything about it but there is little opportunity for an understanding on the part of the public of what the minister proposes to do in response to it.

A number of amendments were put in the other place to address these concerns, and most were not supported, but this one was, and it is the lightest possible touch of transparency of the government which could be provided to it. It is at least some small fig leaf, perhaps we will call it—or perhaps we will call it one part of one cloverleaf—of decency that the government is supporting this amendment to ensure that there is some level of transparency.

Ninety days is an extraordinary period of time. We initially thought that something more along the lines of 30 days or perhaps even landing somewhere in the middle, 60 days, might be more reasonable. Under this regime, it is quite possible for the commission to deliver a report at some point in time, like early December, and for it to lie unaddressed for several months before it is considered actioned, let alone disclosed to the public.

Nonetheless, the government has at least chosen to support this small level of transparency; however, I note that the amendment that was put by the Hon. Mr Pangallo was rejected. I think that is a shame because that level of transparency would have greatly assisted the parliament and the public to understand what the government intended to do and why. Obviously it can sometimes be difficult for the public to understand why a minister chooses to make a decision and then gives no reason for it, particularly when recommendations and reports are not followed. At least the Premier is supporting amendment No. 17.

Motion carried.

Amendment No. 18:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 18 be disagreed to.

Mr MULLIGHAN: Once again, this was an amendment which was put by the opposition to try to live up to the heady standard of transparency which the Premier intimated in his initial comments during the committee stage of this bill. I think it is reasonable that the parliament, or some organ of it, would have the opportunity to understand the work program of the commission on a periodic basis. This is an arrangement which was established for the Auditor-General through the Economic and Finance Committee.

I disclose this to my colleagues in the other place and I also disclose it to members of the crossbench: I am not particularly wedded to which committee would have the opportunity to meet with the chair of the commission to discuss matters that may be of interest to the committee—principally, what work is being undertaken, what references have been made by the minister to the commission, how that work is being conducted and in what sort of direction that work might be heading. It might also be an opportunity for the parliament to understand how the commission's resources are being used.

We heard from I think it was the Premier during the committee stage that what used to be the simpler regulation unit is to be transferred from the Department of Treasury and Finance into the control of the productivity commission. It will basically be the arms and legs and do work on behalf of the commissioners. That in itself is understandable; they need staff to assist them with their work.

However, when we look at some of the other economic advisory agencies which have been or will be brought into existence by the new government—those bodies like the Department of Treasury and Finance, Department of the Premier and Cabinet, the Essential Services Commission and the new economic advisory agency—it is likely that if they are doing a particular inquiry, if they are looking into a particular industry or if they are looking at, for example, the economic impact of particular policy changes or changes in taxation regimes, they might want the assistance of external professionals.

For example, they may wish to utilise economic modelling agencies or agencies with various types of economic models to test the different policy reforms or taxation regime changes the commission is considering. That work is not cheap. A simple approach—which to my memory some years ago was called the input-output economic modelling effort—can be quite reasonably priced. However, if you use a computable general equilibrium model, as the gentleman assisting the Premier would understand, that is very expensive indeed. There might be some interest in the parliament as to which is being used, but more to the point, what is being spent and who is doing the work.

As with most concerns with agencies and their expenditure on consultancies, there wants to be some satisfaction that there has been some sort of process in selecting those organisations that provide external support to an agency like this, the cost of it, and also, what the end result is. If modelling is undertaken, for example, what does the modelling show? It is not just how that modelling is represented in the midst of a finding by a commission about a particular policy reform proposal or industry reform proposal or a taxation regime change.

That is of great interest, and that is why we have seen over many years members from this side of the chamber—the former Liberal opposition and now members of the government—repeatedly make requests and FOI consultant documents and economic analyses that were being made to make sure that there was no dislocation between those reports that were being provided to the government and what the government was subsequently representing to the public. That is of great interest.

I say that I mention the Economic and Finance Committee because that is where the Auditor-General finds himself or herself once a year to answer questions. I am somewhat biased because, like the member for Finniss, I happen to be a member of that committee, and as a result of this bill coming to the house I would have a keen interest in those sorts of questions that I have just mentioned. Equally, I would be relaxed with another standing committee of either this place or the other place having the opportunity.

It is important—it is just an organ of the parliament—that those members of that committee, and by extension the members of the parliament, understand what is going on. I think it is regrettable—this is the entreaty—that the government is opposing this amendment.

Motion carried.

Amendment No. 19:

The Hon. S.S. MARSHALL: I move:

That the Legislative Council's amendment No. 19 be agreed to.

Mr MULLIGHAN: And I say, 'Good on the Premier.'

Motion carried.

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