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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Land Acquisition (Miscellaneous) Amendment Bill

Committee Stage

In committee.

(Continued from 15 October 2019.)

Clause 8.

Mr PICTON: Chair, it is my duty to draw your attention to the state of the house.

A quorum having been formed:

Ms STINSON: This is the clause that talks about 14 days being substituted with 21 days for SACAT to make considerations. My question to the Attorney is around the reason for that. I wonder whether part of the reason is the resourcing of SACAT. I am certainly aware that they have a large jurisdiction now, an ever-growing jurisdiction with not necessarily all the resources they may want. Is part of the reason for going from 14 days to 21 days a matter of resourcing and then being able to respond or having the resources to be able to respond in that time?

The Hon. V.A. CHAPMAN: Not that I am aware of. It has not been in the submission or in the many meetings that I had with Justice Hughes, the head of SACAT. Indeed, the transfer of extra jurisdictional work to her and the amalgamation of the two cohorts of work under guardianship law and under tenancy law onto one site have all triggered, I suppose, an inquiry by me as to whether they are adequately covered. That has not resulted in any request for further funding. This is entirely a matter that is a response to the inquiry on the bill seeking an extension of time to be able to deliver the decision.

At the moment, it is done by the minister, who has the review role, and he or she has to make that provision within 14 days. That is the previous law. The previous attorney-general amended that to give it to SACAT. SACAT have not actually heard any cases. They do not have millions of these or thousands of these and they have not actually done anything yet, but they are saying, 'We might need a bit more time.'

It is the same process: a single person has to make the decision whether there is an objection that is reviewed or not. So, other than giving us a request for that, we have not interrogated the basis of that to them. We accept their advice that they would like to have some flexibility in this time frame, but we have also matched it against the need of the claimant, the person who is sitting there waiting to have a decision made, whether an application for compulsory acquisition should proceed or not. The final determination of that, of course, if it does proceed, may end up in the Supreme Court and that may require a lot longer process. Hopefully, with the other new initiatives that we are introducing in this bill, that will not be the case.

Ms STINSON: The Attorney detailed there that she had looked at the resources of SACAT after the guardianship and tenancy jurisdictions had gone over to SACAT.

The Hon. V.A. Chapman: When they amalgamated.

Ms STINSON: Yes. When this work goes to SACAT in a meaningful way, when it actually starts hearing cases, one would expect that it would be quite sporadic and that as developments are being proposed—for example, the South Road upgrade—then that would be a time when you would see some increase in land acquisitions going on and subsequent cases going to SACAT. Is there any assessment that the Attorney has done or plans to do to ensure that the court is resourced when it does have an influx of these cases coming through, or are you confident that its existing resources will continue to be adequate, even when a large project like the South Road expansion is undertaken?

The Hon. V.A. CHAPMAN: Whilst the member is focused on the South Road development, I think it is fair to say—

Ms Stinson: As an example.

The Hon. V.A. CHAPMAN: —that these things are going on all the time. It does not mean that we end up with thousands of acquisition disputes in South Australia. We end up with 10 to 15 applications in the Supreme Court a year. That should give you some indication. However, what we are talking about here is much more occasional, if I can describe it as that; that is, a notice has been issued and there is an objection which the recipient has the right to respond to and which is in very specific areas as outlined in the act already—set things such as whether there is a right to do that, whether there should be a boundary change, or whether there should be other land brought into account.

It is not the really difficult area, I suppose, of after having dealt with that matter then dealing with the significant issue about, 'Well, if you're going to take my house, what am I going to get for it and what compensatory benefit do I have, what time frame do I have to leave and what can I take with me?' and all the things that go with a compulsory acquisition issue in a substantive way. Nevertheless, in relation to this role, which is as a review role of that initial notice challenge, the judge is aware of this. She has been through all the different iterations of transfer of jurisdiction.

I think there were three of them before we came into government and another lot that was coming across, I think, in the early part of last year, or this year it may have been, in which I again asked the judge, 'I know these may be small in number but other jurisdictions are still being transferred. There is a group of them that are due in the early part of our government. Is that adequate, especially as you have just moved to amalgamate your premises from the ABC building out at Collinswood into a premises here in Adelaide?' Those things can cause some disruption, especially when you are being asked to do extra work. I understand that. The judge understands that, and she has not asked for any other money.

Ms STINSON: Is the Attorney confident that the resources that SACAT currently has are adequate to cater for land acquisition matters that it may need to consider in future?

The Hon. V.A. CHAPMAN: Yes, I am, and I am sure that Her Honour will let me know if it is not.

Clause passed.

Clause 9.

The Hon. A. KOUTSANTONIS: Just quickly, given that this is the same deletion as ‘and in the same way’, is it the same reason that you gave last night for the removal of this section as well?

The Hon. V.A. CHAPMAN: That is correct.

The Hon. A. KOUTSANTONIS: Just to be clear, is the Attorney telling us that this has somehow been a case where clients have changed lawyers and that, unless the same previous lawyer was informed, this starts the process all over again? I was a bit confused last night about how 'and in the same way' could be used legally by anyone to attempt to use that as a legal tactic against the agency or the authority when attempting to negotiate with the authority on land acquisition.

The Hon. V.A. CHAPMAN: I am advised that it is more an administrative matter to give the flexibility to ensure that the notice gets to the right person at the right place. That is what it is for.

Clause passed.

Clause 10.

The Hon. A. KOUTSANTONIS: Could the minister give me a brief explanation of the purpose of this amendment—and I do mean brief—as opposed to what it meant last night? I am interested in a very brief explanation in her own words of the merits of this amendment.

The Hon. V.A. CHAPMAN: I assume the member is asking for more than what is already a brief explanation in the explanation of clauses, so I would refer the member to my second reading contribution where I am reminded that there is an example given of how this works. The example I gave was:

…if there is a landlord with three tenants the authority knows about and one tenant who is for some reason unknown to the authority, the authority issues NOIs—

that is notice of intention to acquire—

to the landlord and the three known tenants. Three months pass and the authority discovers the fourth tenant and issues their NOI. The authority wants to issue the NOAs as three months have passed since the first NOIs were issued but it cannot because it has to wait until three months has passed since the last NOI was given to that fourth tenant.

The amendment means that the landlord and the first three tenants can be issued with their NOAs without waiting for the three-month period from the last NOI.

The fourth still gets their three-months notice and the authority can move forward on acquiring the other interests. You have the summary and an example.

Ms STINSON: Clause 10 talks about the amendment of section 16. Section 16 of the Land Acquisition Act states that, subject to this act, the authority may publish a notice of acquisition in the Gazette. Could the Attorney elaborate on 'may' and whether that is something that in reality and practice does happen each time and that there is a publication in the Gazette each time and shed some light on why the term 'may' is in there if it is the case that it is required for a notice to be published in the Gazette.

The Hon. V.A. CHAPMAN: I am advised that on each occasion it is published in the Gazette.

Ms STINSON: Is there some reason why the terminology 'may' is used rather than 'must' in that particular clause and there is no seeking to change that?

The Hon. V.A. CHAPMAN: There is no reason that I am aware of. It is drafting practice.

Ms STINSON: To clarify, it is the Attorney's understanding that there would be a notice of acquisition in the Gazette each and every time?

The Hon. V.A. CHAPMAN: That is what I said.

Clause passed.

Clause 11.

The Hon. A. KOUTSANTONIS: Negotiation, compensation and other payments: are 'other payments' not compensation?

The Hon. V.A. CHAPMAN: Compensation represents obviously either the agreed or ultimately determined fund provided to be some recompense for the loss. Other payments are not compensation and that is why they are not included in that. They are the new regime we are having, which allows for up-front fees, usually professional fees, to be provided for and made, which are separate to the compensation usually if you get valuations or assessments, legal advice and the like.

Clause passed.

Clause 12.

The Hon. A. KOUTSANTONIS: This clause seeks to amend 22B in the parent act, which provides:

Subject to this Act, a person is entitled to compensation for the acquisition of land under this Act if—

(a) the person's interest in land is divested or diminished by the acquisition; or

(b) the enjoyment of the person's interest in land is adversely affected by the acquisition.

The bill inserts:

(1) Section 22 B—delete 'is entitled to compensation for the acquisition of' and insert:

who has an alienable interest in land is entitled to compensation for the acquisition of the

I would like to hear the Attorney-General give me a definition of alienable and what the legal definition of that is for this section. Without giving the committee my concerns in full, because I will get some advice between the houses, I think—and I stand to be corrected by the Attorney—this means that if land is not currently enjoyed, that is, land beneath you, and the government is taking it away, you are not entitled to compensation.

I do not know if that is the correct reason for this, but I would be interested to hear the Attorney's definition. My only concern—and I flag this up-front—is if it is describing land you currently are not enjoying that is at surface, does it mean that somehow now, if the state can make a case that you have not enjoyed the value of land at surface, therefore it is not compensable either because the land we are alienating from you is beneath the ground? I am not sure that this is right; I am just checking.

The Hon. V.A. CHAPMAN: In simple terms, I will try to make this as clear as I can. The whole of this section attempts with this amendment to distinguish between alienable interest and native title interest. I will just deal with native title interest. The member for West Torrens and I, more than likely I am assuming, would not have a native title interest in relation to a piece of property. Unless we were of Indigenous background that had continuing occupation, that would not be available to us. It is a discrete benefit available to certain persons.

Alienable interest relates to the right to own, lease, occupy through a transferable interest—in other words, something that is usually an ownership, such as estate in fee simple and that type of thing, that is, the registered proprietor of the property or a leasehold beneficiary who is able to transfer that as a right to another occupant. Unless you or I had Indigenous blood, we would not be able to transfer what we might have in a native title interest, but you can sale, give away or bequeath an alienable interest in the land, so it is distinguishable, firstly, from native title—it is something you cannot just sell to each other—and, secondly, it distinguishes between someone who might just be staying the night as an occupier. They have no transferable interest they can onsell or gift to somebody else.

The Hon. A. KOUTSANTONIS: Currently, I could sell my rights beneath my land to the state to build a tunnel because the state has no right of access or power to acquire it, hence the bill. If this is only for things at surface, I am relaxed. If this is something to do with below surface, that is the point I am trying to get at. Does alienable in any way reference or assist the government, or is it an attempt to make clearer the type of acquisition that it is? If it is at surface, it is transactable, whereas below surface it is not.

The Hon. V.A. CHAPMAN: This section has nothing to do with whether the interest is above ground, below ground or on top of the structure. It has nothing to do with this section. This section is distinguishing a transferable interest or a non-transferable interest, as distinct from the native title aspect, which is further in the clause.

The Hon. A. KOUTSANTONIS: Okay. I assumed that this section in the parent act—the 1969 act, division 2, section 22B—entitled people to be compensated for above-ground loss of land, not just of business but homes and principal places of residence. If you are saying it is not—

The Hon. V.A. CHAPMAN: I am just saying you have to have an alienable interest. It is nothing to do with whether it is above ground or below ground. It may be that it turns out that when we identify the bore issue, for example, there may be an alienable interest that is below ground. We are yet to get advice on that, but this is irrespective of where it is. If you have an alienable interest, which is an interest in that land which is essentially transferrable to someone else—something you can sell, give or bequeath to someone else—

The Hon. A. KOUTSANTONIS: You can currently do that now.

The Hon. V.A. CHAPMAN: Yes, I understand that.

The Hon. A. KOUTSANTONIS: Then why the amendment?

The Hon. V.A. CHAPMAN: Because we are clarifying the difference between alienable land as distinct from someone who might just be visiting the property, who is a squatter or someone who has come to stay overnight and who does not have an alienable interest. You have to have an alienable interest to be able to line up for compensation. That is usually an owner or someone who has a document of right of occupancy via a lease, residential tenancy agreement or the like.

Clause passed.

Clause 13.

The Hon. A. KOUTSANTONIS: This is about the negotiation of inserting an obligation on claimants to negotiate in good faith in relation to the compensation payable for the acquisition of the land under the act. It has a series of amendments. One deals with native title. The other, clause 13(3), wants to insert:

(7) The Authority must, at the request of the claimant and in accordance with any requirements set out in the regulations, convene a conference (a valuers conference) between land valuers who have made a valuation of the subject land (and the Authority may convene such a conference at any other time the Authority considers appropriate).

My concern about that is it gives the power to the authority but not the claimant or the landowner to call a valuers conference. I would just like to understand why the landowner cannot call a valuers conference if they disagree with the valuation, unless it is set out somewhere else I have not read yet in another part of the act. That is point 1 I want to make.

The Hon. V.A. CHAPMAN: Point 2.

The Hon. A. KOUTSANTONIS: That is clause 13(3) and new subsection (7).

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: Yes, the good faith. Again, from my understanding yesterday, you claimed that was a recommendation of the committee. My concern is that by the state imposing this obligation on others, are there other examples in acts where the government imposes on an individual party that it is in litigation with—that is, that the state is in litigation with, not between two independent parties—good faith requirements on them?

The Hon. V.A. CHAPMAN: We will check whether there are any, but this is rather unusual because of course we are dealing with a very significant power imbalance. I do recall raising it in a debate we had here in the house in relation to Mr Ian Nightingale's powers. He is a statutory officer and he has all sorts of powers to require documents to be produced.

I raised the very question at the time when the former government introduced legislation giving him these powers: how do you deal with that in a circumstance where the party might be in litigation with the government, with the state? He did not seem to be too bothered by that. He took the view that he should be able to look at these documents anyway.

It all related to whether he could make an inquiry whether, when a certain procurement had been granted on a certain expectation—namely, head office in Adelaide, local employment, all those things—they got the benefit of a weighting in a procurement process in which they might be successful. He would have a monitoring role in relation to that and he could do all sorts of things in relation to that. It did not seem to be of any concern to him that the party might be in litigation or in court already with the government. He thought he should still have that.

Fortunately, we are not dealing with that bill. What we are dealing with here is a situation where, firstly, the authority already has an obligation of good faith; that is, they have to negotiate. This first issue that you raised with the amendment requires that both the authority and the claimant must negotiate in good faith. Really, that is putting them both on a similar obligation. That is the first issue.

The second issue you raised on this clause was: how is it that the authority can require a valuers conference to be convened and not the complainant? If the member rereads new subsection (7), he will see that the authority must, at the request of the claimant and in accordance with any requirements, etc., in the regulations, convene a conference. Here is the scenario: if the claimant wants a valuers conference, the authority is obliged under this proposed clause to convene it. So, indeed, the claimant does have the right to call one, but he or she does not have to do the work. The authority is going to be obliged to do that.

The Hon. A. KOUTSANTONIS: Thank you for clearing that up because I was concerned with the way it was worded further down the clause, where it states 'and the Authority may convene such a conference at any other time the Authority considers appropriate'. I thought perhaps there was some way for the authority to argue that they might not think there is one. Of course, given that the first part of the clause allows that, I am glad that has been cleared up. Over the page, it states:

(9) Subject to this Act and the regulations, a valuers conference is to be conducted in accordance with procedures determined by the Authority.

The authority is forced to call a valuers conference, but it decides the process, rather than an external defined process that you can point to, and the process will be conducted following the same procedure as some other open process that everyone knows. The way I read this, the regulations will define how the authority conducts the conference. The landowner may wish to have a conference where they can supply information, but my concern is the regulations may not allow the landowner to bring more information into the conference or discover new information later and convene another conference.

I just want an assurance from the Attorney that, if new information comes to light, there will be nothing in the regulations that limits the ability of a claimant to have more than one conference and that the regulations governing the way conferences are conducted are standard in the way that other conferences are conducted in an arbitration or conciliation where there is an open procedure in place, people can see it is transparent and there is no difference from one conference to another. That is, two neighbours get the same procedure and the same conference where valuations are determined. New subsection (10) of the same clause goes on to provide:

The regulations may make further provision in relation to a valuers conference (including, to avoid doubt, requiring a report of the valuers conference to be prepared and provided to the Authority and the claimant).

So the authority decides the rules of the conference based on regulations that the minister makes. The authority can then prepare a report to be provided to both. I am not sure whether the claimant can get a report of what they feel was the process, or something to give contrary information or to contradict or to rebut the authority's report, and still make that available to the authority for consideration on the value in the conference.

I am just trying to make sure that this is an open process. I am sure that the Attorney has attempted to do the same. I just want to make sure (1) that the processes they are choosing are open, transparent and normal, that is, consistent with other processes, and (2) that for any reports that are commissioned by the conference to the authority and the claimant, the claimant can also commission their own reports and provide them to the conference and the authority.

The Hon. V.A. CHAPMAN: With respect, I think that the member is misunderstanding that the purpose of these conferences is some kind of mediation of the parties. It is not: it is the conference of the experts. In a lot of civil matters now, it is common practice that the court, the tribunal or the determining authority can prescribe if there is going to be a dispute about value. In motor vehicle accidents, for example, there will be a dispute about the extent of the injury and, in that case, you have experts in either land value or medical disability.

A lot of tribunals—I use that term in a broad sense—now prescribe that, whilst each party can have their own expert come along in the course of the determining process, there is a common process where there has to be a settlement conference of the experts—an experts conference. That is what we are talking about here: the valuers. So, in this case, it is the valuer who has been nominated by the landowner and perhaps the claimant, and DPTI have their valuer as well. They are obliged to meet and confer, and then a joint statement is prepared for the purposes of the ongoing determination of the matter. So it is an expert conference, as distinct from a parties conference.

This is not an uncommon process. What is more prescriptive here is the obligation on the authority to set the date and time to facilitate this to occur—in other words, to make an office available for the people to meet in at a time that is presumably within business hours. They also have a role in ensuring that a summary is prepared of the resolution of the valuers conference. There may be none, depending on whatever the ultimate determination is.

Commonly—and I hope this gives some reassurance—once there has been a meeting of the valuers and each has listened to the basis upon which the others have issued their opinion (in this case, on the value of the property or leasehold interest or whatever is going to be compensated), they can see the weaknesses of each other's position or add in other information, such as, 'Yes, if I take into account that other aspect and this other sale that has occurred in a similar location, then I agree that my valuation could go up a bit.' They may reach a range, if not an amount, of what is a reasonable resolution of the expert valuation.

The theory with these things is that, if that can occur, frequently it provides a good basis upon which the parties can then confer and reach agreement or, alternatively, submit that for the purposes of a determination ultimately by the court. It is not an uncommon practice. There is probably a bit more prescription here about what the authority is obliged to do because these are not equal parties. The act already recognises the important feature of there being an imbalance here and so there are clearly many more obligations on the authority to do things than on the claimant.

Clause passed.

Clause 14.

The Hon. A. KOUTSANTONIS: In this amendment, section 23A is being amended with (1a)(a):

(a) if the Authority considers that the amount of compensation is unable to be determined at time the notice of acquisition is given, in which case the Authority must, as soon as is reasonably practicable after the amount of compensation is able to be determined, make an offer in accordance with subsection (1);

Why is there no time frame given on the authority to make a determination of a value? Given that you are giving SACAT 21 days to make a determination, why not give the authority a time frame to make a valuation?

The Hon. V.A. CHAPMAN: This is not just a decision based on a time frame imposed for a decision based on the documents before them. This is a process that considers values, including something like a business of which the business proprietor is then obliged to pull together financial material—presumably, if I use this scenario—of what their sales have been each week to identify a profit stream to then be able to assess value, and then of course use that as some base to seek compensation for presumably loss of the business, or interruption at the very least. That is why it is a different matter. This is not just a time frame to say, 'We need a decision on this.' This is a capacity to be able to get this material together.

The Hon. A. KOUTSANTONIS: That is my exact point. If there is no time frame and there is an announcement of activity, and properties are being acquired and demolished around the business, turnover drops, there is interruption and sales figures are decreased. There is no requirement here to say acquisition valuation is done the day before the announcement, or any other inconvenience around the business—this is my exact point. It is good enough for SACAT to have to make a decision within 21 days about this matter, but the authority is giving itself as much time as it thinks is practicable to go away and work out a valuation.

All I am saying is that it seems to me that if it is good enough for the goose, it is good enough the gander. Let's require the authority to make a decision quicker. I am not saying it has to be 21 days but why not at least say within three months. Again, whatever time it takes a proprietor of a business or a landowner to collect the information, I assume the process would not start until the authority gets it. Once the authority has all the information it needs, the clock should start ticking; otherwise all the authority has to do to lower the payments the government has to pay is just wait until the inconvenience drives these businesses' turnover into the ground.

I can give you some very good examples. There are a number of businesses on the north-south corridor that saw their turnovers dive dramatically during the acquisition and demolition of properties as they were still negotiating, properties like crash repair shops, bottle shops, other businesses on the north-south corridor. I just would have thought that there could be a time line once all the relevant information has been given. No doubt, there are requirements when people have property, given they are being required to act in good faith. There are other requirements in the act, I understand, for them to provide information to the authority to determine all this, but there is no requirement on the authority to do it quickly.

I am not trying to be difficult. I just think that between the houses we are going to have to contemplate whether or not we move amendments in the other place about whether we give the authority some time frames as to how quickly it should calculate values. This is so that they can get on with dispute resolution and so that we do not see businesses devalued because of the inconvenience they are suffering due to roadworks.

The Hon. V.A. CHAPMAN: One of the reasons we are doing this is to ensure that the rules are set so that decisions can be made before they start the infrastructure project. In these circumstances, it is usually in the interest of the authority to move this along pretty quickly. After all, they are the ones who have served the notice on the person to say, 'We want to take your property. These are the good public interest reasons why we're doing it. You are going to be in the way and we're starting the process.'

We presume the conduct that is being regulated by the current act and amended under this bill is that time is of the essence for them and they are indeed keen to progress it. What we are trying to do is make sure that there are adequate situations, especially in circumstances where there might be an operating business on a premises where it is not just a simple case of bringing somebody in and comparing sales, saying, 'Your house has this amenity or this level of decoration and it is worth this or that.' We are talking about assessment auditing of financial information, which may or may not be in a computer spreadsheet.

We are trying to ensure that we protect the interests of the claimant, not the authority. The imposition on the authority is when they have this and they do make an offer. The process here is really part of the protection against the claimant being bulldozed along with this.

The Hon. A. KOUTSANTONIS: I am sorry, and I do not mean to quarrel with the Attorney on this, but I disagree with her. As a transport and infrastructure minister, as a local MP and as treasurer, I have seen the time it takes to acquire properties, demolish them and begin works. There have been business evaluations that have taken too long and we have seen their turnovers dive, and then the assessments are made late and the value of the business is lowered.

I do think I can flag that between the houses the opposition will probably want to see this done in a timely way after all the information that has been provided to the authority. I would like some advice from the government between the houses on what they think is a workable time frame for an authority to get back to the business on what they think the value is. I do not want to be difficult about this.

I do not want to make this something that makes the act unworkable, because we want this act to work, but I think businesses deserve some form of certainty from the government that they are given a value in a timely fashion. I do not mind whether the government say it is three months, four months or six months, but I would like the government to come back to the opposition with a number, between the houses, which they think is workable and in which the authority must get back to these businesses with a value.

The Hon. V.A. CHAPMAN: I am happy to disagree with the member for West Torrens, but when you are considering these amendments you are proposing, perhaps you will bear in mind that this clause has nothing to do with their providing a value. The obligation here is that the authority put in an offer. When you do consider this—and I am sure you are clearly going to—I just ask you to read the full provision. This has nothing to do with the authority producing a valuation to give to them.

This is about them having an obligation, when they have the information, to put an offer to them. It has nothing to do with a valuation. As long as we are clear about that. You go away and have a look at it and I will wait and see what you propose.

The Hon. A. KOUTSANTONIS: Thank you for your assistance.

Clause passed.

Clause 15.

The CHAIR: Are there any questions on clause 15?

The Hon. A. KOUTSANTONIS: There are now.

The CHAIR: The member for West Torrens.

The Hon. A. KOUTSANTONIS: Absolutely, sir, thank you very much for your considerations. Once you have received your offer in a reasonably practical time that the authority can decide whatever it is, the claimant must respond in accordance with the regulations, and no doubt it will be in writing. The person must indicate whether the person accepts or rejects the offer. I am wondering whether there is a time frame in which the person must accept or reject the offer and respond to the authority.

The Hon. V.A. CHAPMAN: The member will see that the prescribed period means six months from the date of the offer of compensation.

The Hon. A. Koutsantonis: Great, we have a time frame.

The Hon. V.A. CHAPMAN: Well, it is right at the end. If you read the whole clause, you will see it there under subclause (8).

The Hon. A. Koutsantonis: I just wanted to hear you say it.

The Hon. V.A. CHAPMAN: Do you want me to read the whole section for you just in case?

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: No, what I think is not clear is that it is proposed—

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: I am happy to tell you that it is different. We are setting up a schedule which gives some timely and fair progression and a process by which there can be some attempt to resolve a settlement fair to the complainant but also consistent with the authority wanting to get on with its piece of infrastructure.

We start with the presumption that the authority actually want to get the property. They are the ones keen to get going and so forth. There is an obligation in part of this model that talks about money being paid into the Supreme Court, and it has to be in and out within 24 months. There are some obligations further down the track in this bill on that, and I am advised that they are the next bit. There are reversion things that apply to the 24 months, so there is a timeliness in that regard.

If you think ultimately that six months is not long enough for the complainant, then obviously you can come back with some amendments. If you think that there is a situation where there are examples of the authority not putting an offer in a timely manner, we would be very happy to hear it. What we are hearing to date is that that is not the problem in these cases. There are clearly major disputes on what the asset is, what its value is and what the emotional stress is in the relocation of the complainant.

They are the three areas that we most commonly hear about, not that the authority is in some way failing in its responsibility to put an offer in a timely manner. As I say, you are going to consider that between the houses, and no doubt you will put your case in the other place if you feel that there is some example of that. To date, we have not heard it but, if that is something you understand, as you say, in your experience as a minister, then we would be happy to hear it.

The Hon. A. KOUTSANTONIS: I just find it gobsmacking that the authority, in formulating the offer of compensation, is given no time frame because we assume that they are in a hurry to get on with this and that therefore they will act quickly and expeditiously to work all this out, but the claimant is given a time frame within which to respond to the offer. I would have thought that any fair-minded person would think, given the state is using the power of the parliament to take away someone's land that is not for sale to build its infrastructure and putting a requirement on them to respond within six months, then asking the government to make its offer of compensation within a certain period is also not onerous. For the life of me, I do not understand why there is any quarrel on this matter at all in the parliament.

As I said, if it is good enough for the goose it is good enough for the gander. If it is good enough for the claimant to have to respond to an offer within a time frame, why not make the government make the offer within a time frame once notice has been given? It makes complete sense. Again, who are we to question the wisdom of the Attorney-General, in awe as I am in her shadow of brightness and intelligence, because I dare not even gaze at her lest I be burnt.

All I was asking for was some assistance from the government about what would be a reasonable time frame that would work with the authority so that we could get this done in a way that does not impact the authority's ability to get on with the job but also provides some procedural fairness to both parties. One party has a time frame to respond with; the other can take its time as it sees fit. That does not seem fair to me.

The Attorney's argument is: well, there are no examples of the authority not doing it. I have not been the transport minister for six years. I do not know whether there are complaints. I am not sure whether these complaints are even FOI-able. I am not sure whether there are even records kept of all this. I do not know.

All I am saying is that I am seeing two clauses: one putting a time frame on someone to respond to an offer of compensation and the other giving as much time as needed to make the offer. I would have thought that it would be pretty common sense and routine to put the same time frame on both parties, but apparently not. I will get advice on that between the houses, and if the Attorney will not give me any assistance about what an appropriate time frame might be we will have to make one up ourselves.

The CHAIR: Attorney, do you wish to respond?

The Hon. V.A. CHAPMAN: No.

Ms STINSON: I wonder whether the Attorney could explain. I am just looking at new section 23AC, which goes through some rules around how interest is accrued. I wonder whether the Attorney might just explain the effect of those clauses in terms of the accrual of interest, particularly in the situation where the authority's money is being held? Does the claimant receive that interest in the event of extended negotiations, and are there any caveats on that in terms of the behaviour of the parties as to whether interest is accrued and is paid out?

The Hon. V.A. CHAPMAN: As the member may be aware, when money is paid into court, it is paid into the Suitors' Fund and it accrues interest. That is the normal situation. This provision provides that, if there is no resolution of the matter at the end of the 24 months, the money that was paid into it by DPTI, for example, would be paid back to it with the interest and there would be no further interest accruing on it. Does that make that clear? There is a time frame of that money sitting in there in the fund.

Ms STINSON: I am wondering about the situation where money is paid out, for example, after 24 months. Say that DPTI, for example, has put money into this holding account, there is then a protracted period of negotiations and then money is paid to a landowner. What is the situation with interest in that circumstance? Is interest accrued, and is it paid to the landowner who has been waiting for the money that is then determined to be theirs?

The Hon. V.A. CHAPMAN: There still has to be a resolution ultimately of the claim. Usually what occurs in relation to these matters is that if the claim is assessed at $20,000 and interest is payable on it from the date of the claim as determined, ultimately if the court makes the decision and not any other agreement, then they will get their interest as part of their settlement.

Ms STINSON: So not from the date when the money goes in but from the date when the court makes a decision?

The Hon. V.A. CHAPMAN: No. The money that is going into this fund is really just to hold it there and be ready to pay out. It is usually consistent with the offer that is being made. It is sitting there and it is ready to go. Sometimes there is a dispute about certain aspects of a case and money is held in there for longer in the Suitors' Fund for other civil litigation. Here, though, we have a very prescriptive program of what each party has to do to be able to get through that process, hopefully, quicker and more cheaply, but in the meantime, while the money is sitting in the fund, it accrues interest. If the case is not resolved at the end of that time, it can go back to DPTI—I think we have used as the example—and no interest will continue to accrue on that.

Ms STINSON: Just so I am clear, does the interest accrue from the moment that the money is put into the holding account or is the interest only accrued from the point of a court decision about that money going to a claimant? Would you like me to repeat that?

The Hon. V.A. CHAPMAN: No. To clarify, in the course of what is occurring, the money is paid into this fund. If the claimant says, 'I want that $20,000. I'm still claiming $100,000, but I'm taking that now,' they can do that. That is my understanding of this position. They do not have to let it go back at the end of 24 months. They can agree, as part of the process, to take it presumably as part settlement of whatever they are seeking.

Ms STINSON: While I find that helpful, I am not sure the Attorney heard my last question, so, if it is okay, I might just repeat it. My question was about the point at which interest starts accruing. Does the interest start accruing from the time when DPTI, for example, puts that money into the holding fund or is there some later point, for example, the court making a decision as to who that money goes to, when the interest starts accruing?

The Hon. V.A. CHAPMAN: As I said before, the interest accrues from the time it goes into the fund. That relates to that money in that fund. That does not interfere with the capacity of the Supreme Court to make an order at some subsequent date that may well include interest in a different form or different part of what they determine, so we are not interfering with them. We are just making provision that, when money is put into a fund, it continues to get interest from the time.

The Hon. A. KOUTSANTONIS: Why is this amendment even necessary, given the government is imposing a condition of good faith negotiating on both parties? Why would the government deem it necessary to withdraw funds out of the Supreme Court if there is no resolution? It could be because the court is taking its time in considering this and asking for more information. If both parties are acting in good faith, why are you doing this?

The Hon. V.A. CHAPMAN: This is a provision that is being included at the request of the Chief Justice. Some people apparently utilise the fund like their own personal bank account. The case is resolved. The money is left in the Suitors' Fund and it continues to accrue interest. It is not disclosable, apparently, when somebody might be applying for some other benefit, for example. I am assuming by this that it is not something that shows up in the usual transparency of bank records when various agencies, like the tax department, go through and look at these things.

The Hon. A. KOUTSANTONIS: Or means tested.

The Hon. V.A. CHAPMAN: Means testing comes separately, but in the sense of the other authorities that get access to this information it could just be parked in the Suitors' Fund and left there. Obviously, the Chief Justice sees that as completely inconsistent with the purpose of this fund and therefore has requested that there be this time limit put on it. From memory, I think there is a power to vary that time or at least the terms. There is an ability to vary only for compensation, I beg your pardon.

The Hon. A. KOUTSANTONIS: If that is the case, and the issue is not that it is being withdrawn for a tactical purpose to try to gain a settlement process because both parties are acting in good faith, and it was simply because people are using it as a tax-avoidance measure, why not just say that once the matter is resolved moneys must be paid within 14 days? Why this measure?

The Hon. V.A. CHAPMAN: I think I started this whole section on the basis that we have a Suitors' Fund and, in normal civil cases, it is used for the purposes of offers that are made and security of costs for lawyers—all these sorts of things. I am not sure that the use of the Suitors' Fund is perhaps the best way to deal with money that is being offered in these acquisition cases. It seems as though the Supreme Court put up with that, if I can put it in as generous a way as that, but they do not see this as really being what its principal purpose is. They agree to have it; they just want to make a limit on the time to do it because they do not want it to be abused. So we have taken advice—

The Hon. A. Koutsantonis: How can it be abused if it is taken in good faith?

The Hon. V.A. CHAPMAN: Because people do not always do the right thing.

The Hon. A. Koutsantonis: But there is a legal requirement on them to do the right thing.

The Hon. V.A. CHAPMAN: I understand that, but we do not have a law which simply says, 'You do the right thing. You act in good faith.' We do not have anything else.

The Hon. A. Koutsantonis: So it is a tactic then?

The Hon. V.A. CHAPMAN: No, it is a request by the Chief Justice for the utilisation of the fund for these purposes. Whilst there may not be a suit at large at this point—because remember we are in the pre-stage where we are trying to resolve these matters without litigation—he is saying, 'You can use the fund, but I am asking you to ensure that we don't perpetuate this problem of people utilising it for a reason that they should not.'

The Hon. A. Koutsantonis: Just pay it once it is resolved.

The Hon. V.A. CHAPMAN: I am just putting to you that this is his indication about what he has sought. He has been provided with the bill as part of the consultation process, and I think you have seen that. He has put his view, we have listened to it, and hence we have this amendment.

Clause passed.

Clause 16.

Ms STINSON: This clause talks about a settlement conference. Can the Attorney clarify who pays for such a settlement conference and, for that matter, the valuers conference, which I realise is in clause 13, which we have passed. Who is the party who looks after the costs of these conferences?

The Hon. V.A. CHAPMAN: I believe it is the authority in both cases.

Ms STINSON: Do they pay for just an initial conference? Is a settlement conference determined as one meeting and one conference, or could it be a series of conferences? Again, would the authority pay for a series of conferences? I can imagine that parties may go to a conference, particularly landowners who may not be satisfied with the outcome of a conference. What I am trying to figure out is whether there are avenues for those conferences to continue, or is there simply provision for a conference and the result at the end of a single conference is binding on the parties?

The Hon. V.A. CHAPMAN: A settlement conference can be more than one meeting, but let us remember that the process here is that, if an agreement is reached at that conference, that becomes the binding agreement of the terms of the settlement. If it has not—for example, there is something that one party wants to get some extra advice on, there has been a new issue raised at a conference—then they may well say, 'We will convene tomorrow morning or next week,' or whatever. The settlement conference process is one that is not prescriptive to the extent that the parties cannot continue to meet, and I am sure there would be circumstances—there certainly are in other jurisdictions—where settlement conferences are more than one.

Ms STINSON: And DPTI covers the whole cost?

The Hon. V.A. CHAPMAN: Correct. They would not agree to have a settlement conference if they were not prepared to pay for it. Do you see what I mean?

Ms STINSON: Yes, okay.

The Hon. A. KOUTSANTONIS: A member of the settlement conference can be a member of the authority. On the second page, subsection (5) provides:

(5) A person who, without reasonable excuse, refuses or fails to comply with a direction of the conference coordinator under this section is guilty of an offence.

Maximum penalty: $2,500.

That is at page 10 of the amendment. Does this mean that the authority is being bound by directions of the conference coordinator? If they are found guilty, who bears the liability of the $2,500 penalty?

The Hon. V.A. CHAPMAN: The person who fails without reasonable cause or excuse to comply with the direction of the conference. I am assuming that to be a party.

The Hon. A. Koutsantonis: But if it is the authority, who pays that fine?

The Hon. V.A. CHAPMAN: The authority. Authorities are departments of the state—you would remember this as a minister, I am sure—and are responsible. They can sue and be sued, etc. Do I need to go through all that again? Do I make that assumption?

The Hon. A. Koutsantonis: Do you want to be here all night?

The Hon. V.A. CHAPMAN: That person, whether it is a person representing DPTI or the claimant, if they do not do what they are asked to do under direction, could be subject to that fine.

The Hon. A. Koutsantonis: So the state would pay the fine.

The Hon. V.A. CHAPMAN: That depends, as you might recall. Let me give you a little refresher: let us assume the transport officer has been required to produce certain documents and turns up and refuses to do so. It turns out that that behaviour is in breach of his obligation to the department head or the chief executive—or maybe the employer, in that circumstance and that relationship—and he may be committing a criminal offence in not doing that. If he or she is not and there is some breach of code of conduct, there may be some disciplinary action.

From the conference coordinator's point of view, a fine is issued on making those findings that yes, they had been directed; yes, they knew what their obligation was; yes, they had failed to do it or did not have a reasonable excuse and that is the consequence. It will be up to the department then, usually, to make a decision about whether their employee was acting within the terms of their obligation as an employee, whether they were outside of that or whether there was some misconduct or, indeed, any criminal behaviour.

I cannot say to you who would pay it until that aspect is defined, but if the employee who has turned up to this conference, who has disobeyed a direction and maintains to his employer that he was acting in the ordinary course of his duties and was not acting illegally or in breach of his obligations in his employment, then no doubt he would have a position to put if that was accepted by the department, and the department would pay. I suspect there would be some questions asked by the head of the department or the minister in charge if they found that a member of the authority was disobeying an obligation or direction of the conference coordinator.

The Hon. A. KOUTSANTONIS: Which section of the amendment bill empowers the conference coordinator to issue fines?

The Hon. V.A. CHAPMAN: I am advised—and I am not sure if this is entirely correct—leaving aside whether it is a criminal offence or whether it is a summary offence, it is a prosecutable offence and that would be reported, presumably—

The Hon. A. Koutsantonis: You said the coordinator would issue the fine.

The Hon. V.A. CHAPMAN: The coordinator would issue the direction. If it is a breach of the direction of the coordinator and there is no reasonable excuse, then the process in that scenario is likely to be that the claimant and/or the lawyer for the complainant would make the report to the police to say, 'This person has not complied. I want a summons issued against this person.'

That person, who in your scenario is an employee of the Department of Transport, would then go back to his employer and say, 'I thought I was acting in the ordinary course of my duties,' or not, 'I don't want to pay this,' or, alternatively, 'Yes, I have taken this on the chin. I was in error. I have been fined.' In those circumstances, we would see whether the employee pays or the department pays.

The Hon. A. KOUTSANTONIS: In your previous answer, you said the conference coordinator issues the fine. Now you are telling me that participants in the conference need to make a complaint to the police about a breach. So it is not the coordinator who issues the fines, as you told the committee not 30 seconds ago. It is indeed, I assume, a court that issues the fines. That is not what you told us. I have not finished yet.

The Hon. V.A. CHAPMAN: Well, you may not have, but I am going to indicate to the committee, because I do take offence at that tone, that if in any way I have indicated that the coordinator is the prosecuting authority and the determining body of that, I apologise for that. What I have consistently said is that the conference coordinator has powers to issue directions and, if his or her directions are not complied with, there is a potential penalty here for that person, whether they are from the authority or the claimant, to suffer that offence being found and a fine to apply. That goes through the normal process. I would assume it to be under a summary jurisdiction process, in which case it would be a Magistrates Court matter, but I may be wrong in that regard. It may actually apply to someone else.

The Hon. A. KOUTSANTONIS: I will tell my constituents that if the authority does not comply with the conference coordinator to call 000. This has now become absurd. All I was interested to know was if the authority does not comply with what the conference coordinator asks it to do, is the state liable for the penalty? The Attorney has said, 'Only if the representative of the authority has acted outside the brief of the authority after a claim.'

There is an ambiguity about how that claim is made by a participant of the conference because the authority has the minister setting the regulations about how the conference is conducted, the government select the conference coordinator and the authority provides information to the conference. If a claimant feels or suspects that the conference coordinator's instructions to the authority have not been fulfilled, their outlet for complaint is the police, according to the Attorney-General.

I do not think that is satisfactory and I do not think that is what is actually envisaged. If it is not envisaged, it is not clear here. I ask the Attorney, between the houses, to provide the opposition with a written brief about what happens if the authority does not comply with its own conference rulings about what the conference wants the authority to do. In terms of the penalty, I accept the Attorney's argument that if the representative of the authority has acted outside the scope of what the authority wanted it to do, then that person would be liable.

I am assuming that if he took any action, it would be against the state rather than the individual and it would be the minister, I assume, or whoever is responsible. I cannot see anywhere in the amendment bill which jurisdiction this penalty applies to, where you go, how you make the complaint or what the process is for making a complaint if the orders are not followed. Can only the conference coordinator find a breach?

What if a conference coordinator does not believe that there is a breach but a claimant does? Are they allowed to go somewhere? I want a briefing between the houses to understand exactly how this works so that no-one is unduly given any disadvantage.

The Hon. V.A. CHAPMAN: I am happy to provide the detail about which court deals with this matter for the purposes of the issuing of the breach summons and about who makes the decision. I would add one further piece of information, which I hope makes this clear: the appointed conference coordinator is an independent person. The directions that he or she gives in respect of attending this conference which is set out in the process can be either to a member of the authority or to the claimant, so it is not one-sided in that sense.

If the conference coordinator is unhappy with the failure of somebody to comply with that direction, he or she may report that matter themselves and take it through the process, the detail of which we will get hold of. I would not think that there would be any reason that any other party could not report that, but in those circumstances I would be surprised if any action were taken, unless it were corroborated by a supporting statement of the conference coordinator, who would be able to confirm whether his or her direction had been breached.

In any event, we are happy to get that further information, but I want to make clear that this is a process of setting up a conference arrangement with an independent coordinator and that the parties have to comply with certain directions. In this matter, I would hazard a guess that it relates to the production of documentary evidence or information to support assertions made by each of them. Obviously, there must be full disclosure of that material at the conference to make it, hopefully, an effective resolution.

Clause passed.

Clause 17.

Ms STINSON: My question on this clause continues from my earlier line of questioning around who pays for settlement conferences. This clause says that a claimant must apply to the authority to convene a settlement conference. I am inquiring about a circumstance in which a settlement conference is held but the claimant is unhappy with the result of the settlement conference. Would that bring the settlement conference to an end, or does the claimant have a right to insist upon another settlement conference in order to get a result they may want?

The Hon. V.A. CHAPMAN: Again, I suppose it is a question of what they are both there for. This is a process that is designed to say to the parties, 'You are going to have to go through a mandatory conference process before we are going to let you litigate in court, for all the reasons we have espoused historically.' I think I pointed out during the course of the second reading, or at least during the reply, that the courts are now looking at rules of court that may introduce the obligation of mandatory conferencing even in other civil jurisdictions. However, at this stage, people can go to the state civil courts and can issue proceedings.

Having gone into court, they might be referred to mediation or a conference of some kind before the court will agree to list it further and things of that nature. But this is a pre-issue process which is being imposed and which, as I say, is not uncommon in contemporary litigation matters. Here we are saying that, before referring a matter to court, a claimant must apply to an authority to convene a settlement conference and take part in that conference.

There is nothing in there that obliges them to settle. The obligation is to give notice and the authority has to pay for it all so they have to actually set the time and place and so on. Remember, they are keen to have a conference because they want to resolve it; nevertheless, this is to make sure that the claimant is not bearing the expense of the venue for that to take place. He or she will come along to the conference on their own or with a legal representative and they will take part in it. If there is no resolution, then really this is the trigger that then enables them to be able to progress on to litigation.

Ms STINSON: To clarify, obviously, there is no cost for the claimant associated with a settlement conference but there is a cost associated for a claimant with a court process. I can see a situation in which a claimant would probably prefer to resolve through a conference process but also a point at which DPTI may say, 'No, this is it. We are going to court now. We are not continuing to essentially fund a conference process.' I think you have answered my question in your earlier answer to a large degree but I am—

The Hon. V.A. CHAPMAN: Can I just clarify something?

Ms STINSON: Yes.

The Hon. V.A. CHAPMAN: I think the member is under the misunderstanding that the law in this area does not continue to fund the claimant—it does, including legal expenses. We have a couple of jurisdictions: estate disputes, for example. There are certain circumstances where there is quite a generous approach given to either the up-front and/or provision of legal representation for parties to enable them to assist in the resolution of matters.

What the government is saying—and this is supported in consultation with the courts—is, 'In these cases, we want there to be a process and to support a process where they are obliged to come and confer and bring all their documents and discuss their expert valuers, and they have to meet and have a genuine attempt at this. Then, if a fair crack at that fails, they can come through the litigation process.'

I think it is fair to say that to date, whilst the member for West Torrens has raised some weaknesses in delays on these matters, there is a genuine attempt on the authority because they want to acquire the property and there is sometimes perhaps understandable but nevertheless not justifiable resistance on behalf of the claimant, who frankly does not want to lose their house at all or leave at any time, or no amount of money will be enough to buy their property because it is their castle, it is their home, and they are really paralysed into any kind of capacity to even really participate in it. We have quite an extreme at that end.

This whole process is designed to say, 'We are going to give you up-front costs. We are going to put you through this process. If you cannot resolve it there, you can still go to court, but you really have to demonstrate good faith along the way in complying with this structure and give it a good go.'

Ms STINSON: I understand the Attorney to be saying that a landowner would have their legal expenses paid at either a conference stage or at a subsequent court process, so therefore there would be no incentive for someone to continue with a settlement conference because that would be equally covered in any subsequent court process.

The Hon. V.A. CHAPMAN: Yes.

Ms STINSON: Great. Thank you very much.

The Hon. V.A. CHAPMAN: That is exactly why it has been mandatory.

Clause passed.

Clauses 18 to 20 passed.

Clause 21.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 15, after line 4 [clause 21, inserted Part 4A]—Insert:

26DA—Application of Part to native title

(1) The provisions of this Part do not apply to an acquisition of underground land in which native title exists.

(2) To avoid doubt, an acquisition of native title in underground land may only proceed in accordance with Part 4 Division 1.

This amendment is necessary to address some issues with the bill as it relates to native title. The bill as originally drafted provided that, for underground acquisitions, native title rights were not discharged in new section 26F(2)(c) but also that no compensation was payable in relation to interest acquired in underground land in section 26F(5). These provisions are inconsistent with each other, as well as having a potential conflict with the commonwealth Native Title Act 1993.

The commonwealth legislation provides that native title rights cannot be extinguished without compensation, and therefore new section 26F(5) of the bill as drafted was inconsistent with the Native Title Act, putting it as risk of legal challenge. This amendment provides that the new part 4A, inserted by the government's bill dealing with underground acquisitions, does not apply when an authority is acquiring native title rights in underground land.

This means that the other provision of the Land Acquisition Act that already provides for acquisitions of land in which native title exists will apply, and if it is found that native title exists in an underground part of the land compensation will be paid as per the Land Acquisition Act. In practice, I am advised, it is very unlikely that this situation will ever arise, as native title has been held to be extinguished in almost the whole of the Adelaide metropolitan area and surrounding regions.

Generally speaking, tunnels are only feasible in built-up urban areas where the cost is outweighed by the avoidance of huge disruption and vast numbers of acquisitions that would otherwise occur. Therefore, the chances of underground acquisitions intersecting with an area of native title are extremely small. Nevertheless, it is important to account for all possibilities, so this amendment clarifies the situation in respect of the intersection of native title and underground acquisitions.

My recollection is that this amendment came as a result of advice that we had received from the Crown Solicitor's Office and parliamentary counsel, who have really erred on our being covered, as I have indicated, in the unlikely circumstance there would be a challenge.

Amendment carried.

The Hon. V.A. CHAPMAN: For the same reasons that I have just indicated, I move:

Amendment No 2 [AG–1]—

Page 15, line 19 [clause 21, inserted section 26F(2)(b)]—Delete '(except native title)'

Amendment No 3 [AG–1]—

Page 16, lines 1 to 7 [clause 21, inserted section 26F(6)]—Delete subsection (6)

Amendments carried.

Ms STINSON: Just to clarify, I have quite a few questions on clause 21 but not in in relation to these three amendments.

The CHAIR: That is no problem. The amendments have been agreed to but we are yet to pass the clause, so you have the call.

Ms STINSON: Thank you very much. I am interested in why, when we are talking about the acquisition of underground land, there does not appear to be any particular depth of land specified. Does the Attorney have any particular objections to specifying a depth at which this right for the government to acquire underground land is applied, especially without compensation?

The Hon. V.A. CHAPMAN: 'Underground' is not defined in the act or in this bill. There is no specificity in relation to underground being at a certain depth, and I would expect the technological advancements are going to be the key to what is proposed to be introduced in some infrastructure—i.e., a tunnel—in the future.

I am advised that the tunnel, for example, that the previous government built under Hackney Road into the Parklands was at a certain depth, and the ones that are going to be considered to be investigated for the purposes of looking at the north-south corridor intersection issues would be much lower. I do not know the detail of how low they are going to be.

From my own history of South Australia, I remember that we have had issues with underground water. I think the Minister for Transport has also raised questions regarding soil and clay, etc., which relate to some reasons for why we have not traversed underground. We do have some tunnels in the city, and the most recent one I have referred to. We have underground water. We have had issues historically with the establishment of the West Terrace Cemetery, for example, when in the early days of the colony coffins were found out in Gulf St Vincent. We have some very interesting terrain under the plains of Adelaide and we obviously need to rely on our engineers and experts in relation to what they might be able to construct—tunnels or otherwise.

The Hon. A. Koutsantonis: Coffins floated from West Terrace Cemetery.

The Hon. V.A. CHAPMAN: Yes, and they ended up out in the sea. Read a bit of history. I just make the point that that traverses exactly the zone that we are talking about in that north-south corridor, so I expect that we are going to need all the geniuses and expertise in relation to how and where such underground terrain is going to be navigated for the purposes of infrastructure: water tables, and obviously weaknesses in the soil and the like are all things to be considered.

We know what is accessible—and we are talking several kilometres down into the core that are accessible in current mining capacity in regard to drilling and so on—but otherwise I will have to leave the member to ponder her own geology knowledge. The closer you get to the centre of the Earth, I understand that it gets pretty damn hot. There may be someone from future generations who will be able to create structures that will survive that, but that is a long way in. At the moment, we have quite a bit of dirt to play with, but there are some features which may or may not be very helpful for us when it comes to putting infrastructure through it. Again, that will be a matter for the engineers and the experts.

Ms STINSON: So that we are all on the same page, I had the privilege of a brief briefing from one of the Attorney's advisers before this bill was discussed yesterday. In that meeting, I asked similar questions and was told that the advice from DPTI to the Attorney's adviser was that the highest depth where work would need to be conducted would be around 18 metres to 20 metres below the surface and that that was the area they were looking at if not building on then agitating in order to build tunnels.

Obviously, I accept that this bill is not just for the specific purpose of tunnels. It may be for much broader purposes and for other government purposes than simply building a tunnel. Of course, the one along South Road is quite specific.

The Hon. V.A. CHAPMAN: On that, can I just clarify something. If you are referring to the South Road development for that purpose, yes, my understanding is that the proposed area of access would be between 18 metres and 24 metres below the surface. Obviously, for other projects, who knows?

The Hon. A. KOUTSANTONIS: Not by statute? By engineering choice?

The Hon. V.A. CHAPMAN: Absolutely. That is what I am saying. At present, on this project, that is the parameter that is being looked at, as I understand it, but in relation to future infrastructure, whether it is as high or low as that, that changes depending on where we are at. Obviously, the member for West Torrens particularly would have more information than I do on what parameters were looked at for the purposes of the undergrounding into the East Parklands. Whether that is 18 metres down or more, I do not know, but my understanding is that it is not that far down. The capacity and engineering expertise, I suppose, is one of the features that will change in the future, subject to whatever other natural impediments are down there.

Ms STINSON: I hope the Chair will take this as a continuation of my second question.

The Hon. V.A. CHAPMAN: Yes.

Ms STINSON: Excellent. Taking onboard that there is this 18-metre to 24-metre guideline, if you like, that we are looking at specifically for the issue of tunnels for South Road, are there other purposes that the Attorney is aware of for which the government might seek to acquire land under a person's property? If so, could the Attorney give any indication of the depths that are required for those purposes? I realise that she might want to take this on notice between the houses.

The issue that I am getting at is that, because there is no definition of underground in the bill, it would mean that, conceivably—and I know this is taking it to the extreme—the government could compulsorily acquire land a metre below a person's property and not have to provide any compensation. I think that is quite a different scenario from talking about land 18 metres down, as it would be difficult for most people to mount an argument that that is usable land or land that they intended to make some profit from or make some use from.

Obviously, a piece of land that is a metre or a few metres below the surface might conflict with either an existing cellar or something like that, or indeed reduce the value of their land. For example, in my electorate a great many apartment blocks are being built along Anzac Highway at the moment. Many of them now have underground car parks that are being built. It would obviously reduce the value of a person's land if they were not able to sell it to a developer who might want to build an underground car park if the government had already compulsorily acquired a section of that land.

My broad question is: why is there not a specific depth that has been identified to protect a landholder from that situation, or indeed a specific depth that is identified where compensation might not be provided at a deep level but at a level where land may be viable for a person to profit from or utilise so that compensation might be provided in that circumstance? Is the Attorney aware of any other uses that the land might be used for and the depths that might be required in order for the government to build at that depth, and can she provide any more information about the issue of compensation for land that might possibly be of value to landholders?

The Hon. V.A. CHAPMAN: I am not aware of any infrastructure projects of the kind that we are talking about here. However, I think it is important perhaps that I place on the record that the Land Acquisition Act is to apply not just to infrastructure that is going to be built by DPTI. It can be a railway line that may need a tunnel to go through something or it could be SA Water, which puts plumbing a lot of the time underground and under houses and across people's property at a metre's depth or less.

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: I am just saying that we have that situation where, from time to time, they will either have to acquire a piece of land to do something—for example SA Water, especially if it is large plumbing, to service a pumping station, for example, or put a lien over that property for the purposes of continuing to have access to it for maintenance, etc.

This is an acquisition process that is to occur when the state wants to take over somebody's land and it is to include a feature where, if we need to dig underground or under your property for the purposes of a piece of infrastructure, we will not be paying compensation. I am sure that my adviser will correct me if I am wrong, but if work was undertaken under someone's property and it was established that it caused the collapse of their back shed or their porch, or the house for that matter, then that would be a different civil action.

The Hon. A. Koutsantonis: That is a common law right.

The Hon. V.A. CHAPMAN: Exactly.

Sitting suspended from 18:00 to 19:30.

The CHAIR: The Attorney was part way through answering the member for Badcoe's second question on clause 21. Are you happy to take up where you left off?

The Hon. V.A. CHAPMAN: No.

The CHAIR: You have finished, okay. Member for Badcoe.

Ms STINSON: Has the Attorney received any advice about the impact on the surface of land caused by construction beneath the land—for example, at what depth sound, vibration or any other impact might be felt on land or might create potential damage on land? I understand that is not necessarily something that would be known by the Attorney-General's Department, and I am happy for it to be taken on notice to DPTI, which I understand does have such information.

The Hon. V.A. CHAPMAN: To deal with the advice that is being sought, I think the member has been informed, where there has been tunnelling dealt with interstate, what the parameters have been that have resulted in accepting that there is an entitlement or claim as a result of tunnelling interstate, that will be provided, as I have indicated, when we receive that advice.

In respect of the matter generally, as I have previously said but I will just confirm, should there be a disturbance or loss or damage arising out of an established claim, that the interruption had caused some breach, i.e. cracking in your house or a whole house collapse—it could be any range of things—this legislation and the compensation proposals around it do not interfere with the usual civil right to sue for damage caused as a result of another. This is not in any way attempting to interfere with that.

How deep you have to go to be relieved of that obligation and those sorts of things are, I imagine, more technical than legal. At the end of the day, if you can establish on the balance of probability that you are owed a duty of care and obviously have damage caused arising out of the conduct of another or misconduct of another, then of course you line up with a liability for civil claim like everyone else.

The Hon. A. KOUTSANTONIS: It is very nice of the government not to extinguish common law rights to sue the state for doing damage to one's home.

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: No, I am saying it is very nice of you not to extinguish them. My question to the Attorney is: what is the safe distance you can tunnel under a home without disturbing it?

The Hon. V.A. CHAPMAN: I have answered that in the previous answer, so I refer to my previous answer.

The Hon. A. KOUTSANTONIS: The answer you gave the committee was that, if there was damage done, there is a common law right for the owner of the property to take civil action in a court; that is, they would have to go out and make the case against the state. The question that the member for Badcoe and I are seeking to have answered here is: if you are going to tunnel underneath our constituents' homes, what is the safe, acceptable level where there is engineering certainty that there will be no visible or reportable risk to property or value? If the government does not know that, how can we be assured that 18 to 25 metres is the safe distance?

If the response from the government is, 'You have a common law right to sue if something goes wrong,' I am not sure that is acceptable because therefore the burden of proof would be on the landowner rather than on the state to accept liability. The state would obviously defend itself because it would not deliberately drill a tunnel that has caused any damage. The state would believe that it has done nothing wrong and that the subsidence or any other damage that has been done is from another cause.

I know that I am taking leaps and bounds here, but if we are assuming that the state has drilled to build a tunnel at a certain depth the state has made assessments that, in an engineering term, that is safe. If that proves not to be the case, the onus is not on the state to say, 'We made an error. There is damage to your house and we are going to pay you or compensate you.' The onus is on the owner of the land.

The question that I think the member for Badcoe and I want to flesh out here is: at what point does the state say to landowners, 'Listen, there will be no impact on your home at this depth'? If the state will not tell us that, should the parliament perhaps contemplate putting in a floor or ceiling, depending on your terminology, about how deep or how close you can get to the foundations of a property? What impact would that have on building the north-south corridor or any other project, for example?

As the member for Badcoe said, there are unique and diverse types of properties along the north-south corridor. Some properties have very limited footings because they are turn of the last century villas, cottages or bungalows that had very shallow footings and foundations. There are other buildings that are brand new and state-of-the-art with underground car parking—for example, the RAA building on the corner of Richmond Road and South Road—and that have very deep foundations and probably could withstand more disturbance. Is there going to be a minimum depth that DPTI have or a minimum requirement of how close they get? Should there be a cap imposed by statute about how close you can get before you begin to compensate?

The Hon. V.A. CHAPMAN: 'Underground' is not defined and is not identified for the purposes of introducing a level below the surface at which liability might be imposed. There is no impediment by virtue of a depth-qualifying feature of any civil claim. Whether it is one metre or a hundred metres may depend on the technology that is going to be applied, the nature of the infrastructure and the like.

As I said before, there is no attempt being made in this legislation or by the government to interfere with that. All that is being proposed here is that, for the purposes of providing acquisition of underground area, there is no proposed compensation to be paid for the acquisition for that purpose. The civil liability is still there, and I expect that is going to change depending on the nature of the infrastructure.

If I could think of one other example in the time I have been in parliament, it is a massive underground pipeline which was put under the South Eastern Freeway on the city side of the tollgate facility and which went underground through Burnside and through into what I assume to be the Netherby area. It went underground under the freeway, under some houses and then came up for the purposes of the north-east extension and connection of all the reservoirs, which was quite a massive piece of infrastructure.

I have not seen any cracks on the roads or in houses or anything else since, but from memory that was not 18 metres deep. It was actually fairly close to the surface of the carriageway. I imagine those sorts of factors are going to be taken into account in the question of any risk of damage or collapse on the surface of any improvements. As I say, this is not in any way attempting to circumvent or undermine (pardon the pun) the right of someone to take civil proceedings in the event that some act or failure to act on behalf of the state in building its infrastructure causes damage or loss.

The Hon. A. KOUTSANTONIS: Without wishing to labour the point to the Attorney, consortia bidding to build large pieces of infrastructure will always attempt to maximise profits and minimise costs. The shallower the tunnel, the cheaper it is. It is simple. The deeper the tunnel, the more expensive it will be. If you have to go down to a depth of 25 metres rather than 18 metres, it is more expensive, as there is more tunnelling. If you have to go even deeper, it is more expensive.

The way these design and construct contracts work is the bidders put in the cheapest possible bid to lower the cost to the taxpayer and what they do then is attempt to minimise their construction costs and go in a straight line, because straight lines are cheaper. Underpasses, overpasses, change in grade, change in costs, excavation costs, removal of debris, more concrete, all cost more money.

If the state refuses to put a statutory cap on how deep a tunnel can be under your home, the consortium building the tunnels, knowing that the state is the one ultimately liable for the risk, will choose the cheapest option. Often, at the time, with the information available, the cheapest option is as close to the surface as possible, which may at that time show no risk. Of course, over time there is risk and then people in those homes have to undertake civil action—let alone the reputational damage to that suburb, which would be very hard to extinguish because, once it becomes ingrained in people's psyche that there is a risk, obviously it will have a devaluing impact.

I suppose the statement that I am making, and the comment I am giving the Attorney, is that perhaps it would be prudent for the state to think about a minimum distance that it thinks is acceptable between the foundation of a property and the tunnel to give residents some feeling that the state has set some parameters. We set levels of noise, we set levels of particulate pollution, we set levels of pollution in water, we sets levels for all sorts of things when it comes to the exposure people can sustain, but with this legislation the state is setting no minimum level.

Instead, the state is saying, 'If your house does subside or there is damage, you have a civil right to make a common law claim against the state or the consortium.' The bill does not say that the state will not defend that, it does not say that the state will not fight you, it just says that you have a common law right to take them on. That is fine, but I just wonder whether the state has considered and if the Attorney has been advised at any stage throughout this process whether there should be a minimum gap between a property and a tunnel. If we are leaving it entirely to the engineers and the consortium, I can assure the house it will be the cheapest option.

The Hon. V.A. CHAPMAN: I will take that comment on and make sure that the Minister for Transport is alerted to the view of the member for West Torrens in relation to the rapacious conduct of people wanting to build these things. I think it somewhat sadly reflects on the responsibility of agencies such as the department and indeed the government to ensure that safe infrastructure is built in our state. I do not necessarily agree with the view of the member for West Torrens, but I will be happy to pass it on.

I think, though, what I am trying to be clear about is that, in a statute which is outside the terms of this, setting a limit as to what is a safe level at which you may or may not interfere with some improvement above the ground may well be prescriptive and variable depending on the infrastructure, the substratum soil you are dealing with and any other interference with that property. I do not share that view, but I am happy for the Minister for Transport to be alerted to the gratuitous opinion of the member for West Torrens.

Mr BOYER: In relation to 26F—Acquisition of underground land, is any notification given to a landowner, or anyone with an interest in land, prior to the publication of a notice of acquisition of that land in the Gazette?

The Hon. V.A. CHAPMAN: I invite the member to view the new section 26F(4), whereby:

The Authority must, as soon as is reasonably practicable after a notice of acquisition of underground land is published, give notice of that fact to the person who was the owner of the relevant land immediately before the land was acquired.

Ms STINSON: So they do not know before it is gazetted?

The Hon. V.A. CHAPMAN: Correct. That is before the acquisition.

Mr BOYER: In relation to the same new section, 26F, regarding the residual interest in the land, can the Attorney provide some examples of such residual interests and how they might actually be modified?

The Hon. V.A. CHAPMAN: A residual interest, for example, could be at the end of a life interest in a property. Is that what you are talking about?

Mr BOYER: Yes.

The Hon. V.A. CHAPMAN: For example, if the owner of the property is divided on the basis that a person has a life interest—it be under a bequest of a will, for example—and they are able to live there for their life and then some other party has a residual interest when the life of that occupant is concluded. That is not an uncommon situation where you have a residual interest. I think the question then is: how is that accommodated? Do you mean does notice have to be given to the owner of the residual interest? Is that what you are saying?

Ms STINSON: We are referring to 26F(2)(c), where it talks about a residual interest and then how the interest is modified.

The Hon. V.A. CHAPMAN: I think the question was: what is an example of a residual interest?

Ms STINSON: Yes, some examples of that scenario.

Mr BOYER: And how might it be modified. What might count as a modification as per 26F?

The Hon. V.A. CHAPMAN: I see. The interest to be modified to the extent required by the acquisition, if the acquisition is to take the property and it is no longer available for the residual interest? Is that what you are talking about?

Mr BOYER: Yes.

The Hon. V.A. CHAPMAN: My understanding is that sometimes the acquisition can be of the life interest, for example, and they are moved on and so forth. It may be that the residual interest in the property is kept separate. I would imagine that would be a circumstance where that would apply. In a circumstance where the property can be resumed for the purposes of use, then the person who has the residual interest may well take that up. It may be modified; it may be that they only get it upon the completion of certain infrastructure builds, for example, but they get it back later. That is an example that I can think of. I hope that clarifies it.

Mr BOYER: I refer to 26F again. I assume, Attorney, that there could be costs associated with the modification of a residual interest? If so, who is responsible, or who will pay those associated costs with the modification of a residual interest?

The Hon. V.A. CHAPMAN: In general terms that would be met by the authority—DPTI or whoever the party is that is dealing with it—because they are the claimant as well. They are coming along to say, 'I want to get the interest at the end, once you have utilised the property for whatever purpose you need, for example, and retain some residual interest.' It might be modified, as I say, not subject to the life interest of the person who has been bought out but someone else, but at a different time. Again, that person who has an interest in the property, has an inalienable interest—we discussed this earlier in the committee—because you can onsell a residual interest. It is a transferable right and a saleable right. So, yes, they are a potential claimant in this exercise and while they are negotiating their entitlement they, too, get that benefit.

We are using DPTI as a common feature here as they are frequently the party. They have a responsibility to provide and support the financial basis upon which the claimant has a chance to be able to get independent legal advice, representation, valuations, assessments, etc., and the support structures that go with the model that is being proposed. So, yes, they have quite a significant role.

Ms MICHAELS: I have a question for the Attorney regarding section 26F(4). The way I understand it is that the authority publishes the notice and under subsection (2) that then vests the interest automatically in the authority. The owner does not find out about it until as reasonably soon after as possible, so they have lost their ownership interest before they know about it; is that correct?

The Hon. V.A. CHAPMAN: Yes, although the member suggests that they have an interest; the fact is that we are talking about underground land, which we say they do not have and they do not have any right to compensation for. However, they are given notice through this process about what is happening around them—in this case, under them.

Ms MICHAELS: I have a follow-up question for the Attorney. What then is the purpose of subsection (2) and the concept of vesting an interest that the authority does not otherwise have? Clearly, the owner must have an interest in their land and the underground land below it.

The Hon. V.A. CHAPMAN: I am not entirely sure that I understand the question. This is a modification of the notification procedure. Again, let us look at a residential property: they are sitting there and they get a notice which says that something has been gazetted. They have not seen that. They get the notice which says, 'DPTI has a right to put a tunnel underneath your property,' essentially. That is correct, and the purpose of having this is to make sure that they are notified of that.

Ms MICHAELS: The concept of a property interest vesting in another entity that did not have it prior under subsection (2), in your opinion who owned that interest up until the point of the notice being published? Was it not the landowner?

The Hon. V.A. CHAPMAN: That is why we have an acquisition process that makes it clear as to the underground land being underneath the plot of land that is owned and to make it abundantly clear that, as a government, we are treating that as land that sits underneath the registered proprietor, who has the estate in fees simple, etc., of the plot of land above. Whilst they own it—this is why it has been put in here as 'underground'—and there is the need to acquire the underground land (not the plot above in this instance, although in some cases they will need to take both), in this instance if they want to take the house and the plot on the top, they have to go through one process. If they just want to dig a tunnel underneath it and not disturb the person on the top and do not require any access to or acquisition of that land, then they go through this more simplified process, which is the gazettal process with a notice ultimately to the landowner to say, 'We are letting you know that there is going to be a tunnel underneath you.'

Clause as amended passed.

Remaining clause (22) and title passed.

Bill reported with amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (19:55): I move:

That this bill be now read a third time.

The Hon. A. KOUTSANTONIS (West Torrens) (19:56): The opposition understands what the government is attempting to do and we are broadly supportive. We will consult between the houses and speak to the parties that were not consulted—the Property Council, Business SA and other interested bodies.

Our concerns remain as we have articulated today. We seek government assistance between the houses to help us with some of the problems that we have articulated. We do not wish to be difficult. We hope the agency can allay some of our concerns and fears. If they can offer us any support between the houses it would make the process a lot easier and give the government the outcome it is looking for; otherwise, the opposition will be left to its own devices with the crossbenchers to legislate without the informed knowledge of Crown law and the agencies who are actually building the infrastructure. So we seek the government's assurances and assistance on this matter to try to get a good outcome for the people of South Australia.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (19:57): I wish to thank all those who have made a contribution to the debate and assisted in relation to the committee matters. I will follow up to ensure that we provide the court process in relation to any prosecution for failing to comply with a direction of a coordinated conference.

Furthermore, there are some matters that have been raised by the member for Badcoe and that information will be sought. It has been referred to during the debate, so I will not repeat it, but we will do that. Of course, as always, in the event that there are further matters that have not been brought to our attention that require some further consideration, we would be happy to receive any proposals from the opposition in that regard.

Bill read a third time and passed.

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