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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

COVID-19 Emergency Response (Further Measures) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. A. KOUTSANTONIS (West Torrens) (15:44): As I was saying, I am very concerned about the path the government has taken on this matter, but I look forward to asking some questions in committee regarding the appropriateness of the government going alone on amending the National Electricity Rules to apply here in South Australia.

National rules are in place for a reason. If the COAG Energy Council believes that South Australia has a unique predicament because of net negative demand, the question then becomes: did the minister raise that at the COAG over a period of time? Has it been an issue that the COAG has been working on? Has the COAG and its officers been working up national rule changes for the Australian Energy Market Commission to contemplate how to deal with this? If that has not occurred, why has the national system, of which the South Australian minister is a lead legislator, broken down? How has it come to this?

Let's be clear: the government, when elected in 2018, had a policy of more solar panels; they even had a subsidy in place for storage. They incentivised more PV in the system, so where was the corresponding work by the minister and his office for the rule changes? Why is it an emergency? Why now? What has happened now? The government says it is because of a drop in electricity demand because many heavy industries are not operating, and demand has dropped, and there is a longer period of negative demand, I assume; so this is why it is urgent.

If more PV is being rolled out through government subsidies and more battery storage is being run out, how has it come to be an emergency piece of legislation—shown to the opposition with 24 hours' notice—to allow SAPN to be instructed to cut off people who have solar panels, who will be declared market participants for the purposes of this act, and be constrained? As I was saying in my remarks before the lunch break, why are we putting the burden on them and not on SA Power Networks? Why is it that the people who have made the investment, knowing the national rules, are the ones being targeted?

To give an example, the government says that the opposition's policy of taking back control of our trams and trains, if they are privatised by the government, is sovereign risk. I ask the government: how is it different from investors, who have installed solar PV into the grid with the authority of ESCOSA and the minister, now having the rules changed on them without notice in the parliament? How is that not sovereign risk? If the government fears that there is an energy system stability issue, why is the only solution this size of PV? Why are there not other augmentations being made?

The part that I am not quite sure about, which I would like to flesh out with the minister at the committee stage, is the role of the temporary generators that the government is selling. I am just speculating, but if the generators were to run to offer system stability at a time of low demand to help with system strength, that would be a cost to the taxpayer; whereas an instruction to SAPN to stop the dispatch of private generators, who have solar PV above 200 kilowatts, is done without any compensation for those producers. They receive no tariff and there is no penalty on the South Australian budget.

So the Liberal government have made a decision that, rather than spend their own money, they are prepared to go after the investor who has built the solar PV on the basis of getting a return on investment and tell them, 'For system strength, we are cutting you off,' without any compensation at all for what they would have generated or would have been paid.

Surely, to avoid the risk of the state being a place where it is not safe to invest in, the government would then say, 'If we do disconnect you under a ministerial instruction, you will be compensated for what you would have earned as a feed-in to the system,' because, from what I understand, every other generator that is required to behave or be instructed in the grid, like a generator being compelled to turn on, receives a level of compensation either from the grid, where we are all charged in our bills, like when the interconnector went down and South Australians' power bills went up by $90 million. We all had to pay that to compensate generators who were being told by the operator to turn on to provide system strength and stability to our grid because we did not have the interconnector, yet this legislation cuts off small investors with nothing.

There is a theme here from this Liberal government: if you are a small business or a small investor, you do not matter; if you are a very large, wealthy international investor in South Australia with close links to the Communist Party of China, we will look after you. I think that is unfortunate. I suspect that SA Power Networks could compensate those generators without it hitting South Australians' bills for their loss in revenue. Of course, we will flesh this out in the debate but I suspect the government's position will be, 'There will be no compensation. It is about system strength. We are cutting them off.'

The counter to that is I say to the government, when the interconnector went down and generation was directed on, South Australians forked out to the tune of $90 million, and it did not bother the government or the minister one bit—not one bit—so why do we compensate the large generators but not the small generators? Yes, they are different scenarios, different examples, but the principle remains the same: if there is an intervention or an instruction by the grid or the minister or the operator, generally you are compensated.

The government wants the opposition to vote for a measure that will not compensate people from being cut off from the grid. I suspect the government will go further than this down the track and start disconnecting PV off people's roofs, and dispatching into the grid at times of negative demand to stabilise the grid rather than another course of action which may be more expensive to SAPN or ElectraNet.

Mr PATTERSON (Morphett) (15:52): I rise to make a contribution to this COVID-19 Emergency Response (Further Measures) Amendment Bill 2020 which is making further amendments to the original emergency response act moved back at the start of April. If we think about where we were back then in terms of what has gone on with the novel coronavirus and the pandemic, and where we are now, and maybe how that has shaped these further measures, there is no doubt that this is a once in a lifetime pandemic and nothing that we have experienced before.

Back in April, when the original bill was brought here into parliament, things were delicately balanced, you would say, at that point in time. We had just had the announcement of the $130 billion JobKeeper package to try to ensure that businesses could hibernate. A lot of the work of both the federal government and this state government in terms of the economic response to the crisis has been around that hibernation idea or concept. Above that, of course, the health aspects of this pandemic always take priority, and certainly this state government, led by the Premier at the national cabinet, has always taken that in regard in all the decision-making along the lines of the primary health response to this pandemic.

When the COVID-19 bill was first brought in, it was really about trying to flatten the curve, and trying to keep the number of new COVID cases right under control, which would then allow us as a state to build our health resources, and to communicate to the population and to business what is required to bring into place the health and economic measures that are primary and at front of mind.

As it has evolved, we have seen a number of measures. Certainly, staying with the health advice has been very important. We have seen the national cabinet work collaboratively in really making best use of the federation since it was introduced back in 1901. There can certainly be challenges between the commonwealth and the different states, but I think all the states have come together, primarily, and gone down the single path in terms of battling the coronavirus and making sure that all people in not only South Australia but Australia have been safe.

If you look at South Australia, some of the restrictions that were brought in at that time were around social distancing and reducing and cutting off social gatherings. Of course, this flowed through into the economic impacts. Many businesses had to really cut back what they offered or even had to close down temporarily. When this bill was brought in, that is where the JobKeeper and JobSeeker allowances were brought in to try to allow businesses to hibernate while we overcame the health battle that we are facing.

It was looked at in a six-month time frame, and here we are six weeks into that and the initial measures that were brought in are then being looked at further through this further measures amendment bill. One of the measures the further measures bill looks at is to do with commercial leases. I suppose it really clarifies further what is involved in terms of the provisions around commercial leases. When the original bill came to parliament, there was a directive that tenants under financial duress could not be evicted and that mediation should occur. This further measures report, which I will touch on later in my contribution, details how to go about that.

The bill also inserts a new section 10A, which relates to provisions about certain community visitors. It enables visits and inspections of these community visitors and the Chief Psychiatrist to be conducted remotely by audiovisual or other electronic means. Again, this is temporary during the COVID-19 period. Other aspects of the bill are around clarifying that authorised officers have the power to remove children and to ensure compliance with any direction under section 25 of the Emergency Management Act 2004.

There are also some changes further on in part 2A relating to the National Electricity (South Australia) Act, empowering the minister under the Emergency Management Act to direct a person who engages in the transmission or distribution of electricity, once an electricity supply emergency has been declared. I have spent a bit of time going through the commercial leases side of it, with the introduction or the substitution of section 7.

My electorate of Morphett is ordinarily a thriving retail and tourist-based sector, especially on Jetty Road, Glenelg. That area really has been hit hard by the real shutdown of social gatherings. This has meant that the pubs have had to close. They can no longer serve meals or alcohol, and the cafes can no longer have indoor dining; they have been forced to have just takeaway. Of course, that has meant that those businesses are not able to operate as they normally would. The original commercial leases that they entered into, in the case of Jetty Road, were predicated on good trading conditions, foot traffic and the ability for customers to come into their stores. This has caused challenges, certainly from an income point of view. Many are small to medium businesses, which these further measures look at.

In terms of what those measures are, it says in the bill that the Governor may make such regulations as are necessary for the purposes of mitigating the adverse impacts on a party or any other person with an interest in a commercial lease resulting from the COVID-19 pandemic. The regulations have been set up now to take into account the national code of conduct. If I go back to when the original COVID-19 emergency response bill came in, that was 7 April 2020, and on that same day the national cabinet published the mandatory code of conduct for small and medium enterprises regarding commercial leasing principles.

At the time, of course, it was not possible to include the government's full response to that code of conduct. It did incorporate elements of it that had been flagged and discussed in national cabinet, but it did not incorporate them in their entirety, so that is what the regulations that are being introduced in this further measures bill will contemplate. If I look at those regulations and talk to them, section 4 details the objectives of these regulations.

The objectives have regard to the national cabinet's mandatory code of conduct SME commercial leasing principles, which was published on 7 April 2020, to implement temporary measures. In that sense, 'temporary' means while this pandemic is occurring during the prescribed period which began on 30 March 2020. It allows measures to be put in place for both parties, both the lessee and the lessor, for certain commercial leases and to take into account the circumstances that have been brought about by the COVID-19 pandemic. It is to provide mechanisms to resolve disputes concerning those leases.

Usually governments do not get involved too heavily in leases. They are agreements between two willing parties but, in these cases where business conditions have been forced upon them, certainly the regulations are required and necessary. If I refer to some of those principles that came out of that mandatory code of conduct that national cabinet came up with, it says that these principles are to aid the management of cash flow for SME tenants and landlords on a proportionate basis.

In speaking with businesses in Morphett, with both tenants and landlords, a lot of them have tried to operate on a good faith basis where they have tried to come to an agreement based upon these principles. These are principles such that the landlords and tenants are acting in an open, honest and transparent manner, and they will each provide sufficient and accurate information within those negotiations which will achieve outcomes consistent with the code. Where there can be an issue is where both parties cannot come to an agreement and, in those cases, the first instance of the regulations is that there be mediation by the Small Business Commissioner in South Australia to try to use that framework of the national code and the principles to try to come to some sort of agreement.

If I give some examples, you have two ends of the spectrum. You have one end where you might say you have the landlord who might not want to agree with the tenant but, conversely, there are also the situations where the tenants might not come to terms with the landlords themselves. Not all landlords own multiple buildings. A number of the landlords, especially in and around Morphett, are family-based businesses, so they are small operations. They own a few commercial properties and they lease them out on some occasions to some great worthy local businesses and, on other occasions, to bigger national chains.

One of the issues they are confronted with is that quite often the head offices of national chains are on the eastern seaboard. They have been receiving letters along the lines of, 'Understandably, we won't be able to pay the full rent because of the conditions.' But then, rather than operating under the principles of negotiation, they just put down that they will not be able to pay rent. For example, some have put out requests for not paying 18 months rent; others have said they would like to have returned maybe some of the rent they already prepaid in March. The harsh thing for these landlords is that at the same time they also have responsibilities they have to pay in terms of their banks, etc.

The idea is that, with the regulations and the mediation provided by the commissioner, those two parties really should operate in good faith. I think some of the letters show that it is hard. They have indicated more of a 'take it or leave it' basis. What I would offer to both parties, whether they be tenants or landlords, is that they take the opportunity with these further measures to look at negotiating based upon the principles set out in the regulations.

In terms of those regulations, part 2 clause 6 states that there is an obligation on parties to commercial leases to negotiate in good faith and puts the onus on parties to make 'a genuine attempt to negotiate in good faith'. I think negotiating in good faith goes beyond just writing a letter to either the tenant or the landlord and saying, 'That's our final offer.' It is about actually having an appetite to willingly engage and understand where the other party is coming from, whether that be a tenant or a landlord, such that they can actually negotiate in good faith.

Should they not reach an agreement, that is where the Small Business Commissioner can come into it. With all best endeavours, they can try to mediate, but the idea is that both parties, if they cannot reach a resolution via the mediation, would then have to go to the Magistrates Court to get a final ruling. However, it is a step outlined in the regulations, and clause 8(3)(c) provides that if a party to a mediation refused to participate or did not participate in good faith in the mediation, then the commissioner can put in place a certificate stating that that has happened and naming both parties.

At least when the result of the mediation goes to the Magistrates Court, it can be clear whether or not either of the parties attempted to negotiate. You would certainly think that, if you were putting a case in the Magistrates Court, it would be quite important that each party had been able to show that they had tried to mediate in good faith.

The member for Heysen talked about the principles around what is looked at in terms of where the parties might be able to negotiate if it does have to go to the Magistrates Court, which I would think most parties would want to avoid in most cases because of not only the time involved but also the cost. Hopefully, the principles in clause 9, which talk about the determination of relevant disputes by court, can be used as part of either the negotiations between the parties or the actual mediation where the Small Business Commissioner is involved. Clause 9(5) states:

(5) In respect of proceedings under this regulation in relation to a commercial lease, the Court may, subject to regulation, make 1 or more of the following orders:

One of those orders is an order granting rent relief to an affected lessee in relation to payment of rent under the commercial lease. Further on, in subclause (7) it states:

(7) Subject to this regulation, if the Court makes an order under subregulation (5)(a)—

which I have just mentioned—

then at least 50% of the rent relief determined by the Court must be in the form of a waiver of rent.

That is in line with the national code and the overarching principles that the national cabinet came up with.

Importantly, though, it is not prescriptive because also as part of the deliberations section 9(8)(e) provides:

(e) the ability of the lessor to provide rent relief, including any relief provided to the lessor by a third party in response to the COVID-19 pandemic.

So it takes into account not only the fact that tenants certainly may be under financial pressure in terms of their ability to pay rent, but also the landlords or the lessors in terms of other economic imperatives that they would also have. Rather than a prescriptive set of rules that are meant to apply industry-wide, it gives the ability, on a case-by-case basis, for some sort of agreement to be reached.

That is the basis on which the code is being brought into these regulations and certainly I would encourage businesses, not only in the electorate of Morphett but all businesses, to negotiate in good faith so that they can resolve any issues they have with their commercial lease so that it gives them the ability to plan. When you are running a business, if you can at least set in place a plan, however difficult it is—and there is no doubt that in this time of the coronavirus the economic realities are very hard—you are able to actually have a road map back.

In terms of that road map, just last Friday the national cabinet made an announcement. Again, that fits into these considerations as well, that in South Australia we have been very lucky to have had the lowest stipulations and restrictions in place but the highest level of compliance. Again, that goes to the intelligence of South Australians, that they can work their way through things and actively try to work together as a community.

As we go through this road map, we have stage 1, where we are starting to gradually open up: we have outdoor dining and for some cafes that will be very welcome, and then, if we can all continue to social distance, we can look forward to the next stage on or around 8 June when we might see some more dining experiences available not only at cafes but at restaurants as well.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:12): I wish to thank all contributors to this debate and again express my appreciation to the parliament for their consideration in dealing with this matter expeditiously. I place on the record that I have noted a number of the issues raised, which we will repeat in the committee stage for confirmation of information that is sought.

Secondly, we have been giving consideration to the foreshadowed amendments. Whilst most of it is reasonably achievable, there is some slight redrafting in relation to who will ensure the material is made available on the website and the time frame that is required. Some of it does seem a little bit superfluous in relation to questions such as what is the reason for doing this? It is pretty obvious that it is COVID-19, but in any event essentially the member is looking to have some kind of public record of what actually happens during this COVID period in relation to non-face-to-face inspections, who is doing it and at what institutions. These are all reasonable things to have information available on and we are working on that as we speak. Again, I appreciate the opposition's indication that they will support the passage of this matter through the parliament expeditiously and their consent otherwise to the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I would like to ask the Attorney about the urgency of how this bill will be handled. Obviously, as I have noted, this is now the sixth piece of legislation that we have been dealing with quite rapidly through the parliament. It did strike us in the opposition as strange that the last piece of legislation that we dealt with in the last sitting week was supposedly very urgent—and we dealt with it very urgently through both houses of parliament; both houses of parliament dealt with it within three days—but it then took six days to get from the Speaker's desk to the Governor's desk.

Presuming that this passes in the same rapid fashion over the next two days, how urgently does this need to be enacted? How urgently does it need to be signed off by the Governor and executive council and put into action?

The Hon. V.A. CHAPMAN: Firstly, in relation to the COVID No. 2 bill, which I think had been referred to as being delayed in its implementation, the Speaker made an explanation today as to that being dealt with in one week of parliamentary sitting, that it came to him and was dealt with and signed by the following Wednesday.

Mr Picton: Six days.

The Hon. V.A. CHAPMAN: You can add in weekends. I do not know how many Governors deal with legislation over weekends, but I just make the point that it came to him. You can quiz the Clerk or make some inquiry as to why it took the Clerk so long to actually get it from his desk to the Speaker on the Tuesday, but they are matters you can take up. I make the point, though, that the expectation in relation to this bill is that, in the event that the parliament agrees to debate this matter fully this week, we would expect that the executive council and signatures would be on the bill for the Governor on Friday.

Mr Picton: This Friday?

The Hon. V.A. CHAPMAN: Correct.

Mr PICTON: Will there be a request to the Clerks that the bill is presented in such a way as to enable that to be presented to executive council on Friday?

The Hon. V.A. CHAPMAN: If necessary, but I have not been attending to the arrangements on that. I made the inquiry as to the availability of the Governor. I think we start with him and his availability in these circumstances. I have to say that all throughout the COVID time he has been magnificent in his availability and attending to matters as best he can.

Indeed, we have had several executive council meetings in one week, and of course the Governor meets with the Premier regularly, usually with one other minister, so that there can be what we describe in our government as mini executive councils, because we have established a practice where the whole of cabinet presents once a week to the Governor. Obviously for COVID reasons that has not been practical in this period, but there has been a continuation, and he has certainly made himself available.

I do not know how much more we can expedite things in relation to days. There have been times under the previous government when the previous attorney has approached me to agree to expedite a matter, for it to be put through the parliament, dealt with and sent to Government House that night. That happened in a situation where a prisoner was going to be released and there needed to be some urgent turn.

I am not aware of any immediate, pressing issue relating to a person being released from a prison or a person being vulnerable to a loss of a claim or something of that nature as a result of this bill and needing to have a day to be progressed, but our expectation is that to balance the need for the parliament to properly scrutinise this bill, together with the circumstances which we are in, namely, the COVID pandemic, that is the expectation, that it will be dealt with this week. There is an indication from the opposition that it will accommodate that, and I think you have confirmed it from your side here in the house that that will be dealt with by Thursday and that the Governor will be signing it on Friday.

Mr PICTON: I would like to ask about consultation that the government has or has not undertaken in relation to this bill. I understand that no external consultation has occurred with this bill, which is consistent with the other previous bills that we have had, so can the Attorney outline whether that is the case, and whether, if there are future COVID bills—and we are now looking at the stage where we are starting to loosen restrictions—it would be appropriate that we do undertake some sort of consultation process before they are presented to the parliament? Also, what consultation was done with our public health team, Professor Spurrier and others, and have they approved all the measures in this bill?

The Hon. V.A. CHAPMAN: Since the previous bill we have continued to be working as a government—and particularly my agency, the Attorney-General's Department—largely with the State Coordinator and through such advice as he has received but also with input from other ministers to coordinate and collate, I suppose, other areas of identified pressure in this situation which may need legislative or regulatory reform.

Over the last two weeks, in between these pieces of legislation, we have been trying to compile from that list what is important that has to be advanced in legislative form. There were a number of other requests, I might say, that were put to my office by some of my ministerial colleagues, which frankly did not make the cut, that is, to the extent of being absolutely necessary for the purpose of COVID. Some of them are very good ideas.

I will give you an example. One that was put to me in discussion with the Law Society and other members of the legal profession was an idea of dealing with the signing of mortgages—mortgage documents prepared by banks, signed up by the bank—being observed on an audiovisual screen with another party.

I had some discussion, I think, including with the Chief Justice when we were talking about reform needed for affidavits. He did not think that was necessary for affidavits to have to be done electronically, or to have to, I suppose, reduce the significance of having personal representation in the presence of an authorised person, and nor was the bank documentation. It is not a bad idea, though, and I indicated that I would have a look at it. There are a lot of things that have not made the cut, so to speak, but these are the ones that were key to the State Coordinator.

Dr Nicola Spurrier has been very much involved in all of the process in this regard, because she largely gives advice to the government (that is, the cabinet), the minister and the State Coordinator. Her advice is invaluable, but also she sits on the national board, which advises on the public health issues to the national cabinet.

That is a situation where they have been largely consulted, but because this matter involved the children, and in relation to basically the removal of children for the purposes of complying with a direction by authorised officers—that is, police officers—then the Commissioner for Children and Young People was consulted, and I think also the Guardian for Children and Young People. Obviously they are two key people who needed to be consulted in that regard.

The Law Society, I know, were sent a copy of the final bill on Friday. Again, they have given some valuable advice on the principal bill that passed, which has a big focus in relation to the commercial tenancy—again repeated in this bill. Not that the other things were not important but this is stage 2 of that section, so their advice on the previous bill was important, but we also sent them a copy so that they could at least have their property committee view it. To the best of my knowledge that has not elicited any response yet.

My understanding is that the document I have from the Law Society—which you would have already seen, I am sure, because it is online—related to the original bill, which came last week, setting out a number of aspects. It does deal quite comprehensively with commercial leases, so it is worth a read if you have not read it, but we sent them a copy of this bill on Friday in its final form. It was approved by cabinet on Thursday and, obviously, copies were made available to the opposition on Monday morning and briefings provided. Of course, our party saw it also on Monday.

As best as I understand it, all of the opposition were provided with a copy of the draft regulations that go with this bill in relation to commercial leases, and I hope that has been a helpful guide in relation to the model of what is to be taken into account in relation to negotiations/mediations/determinations by the Magistrates Court on those matters. I think that is all, though, in consultation. I am getting a nod, so I am assuming that is the position.

The Hon. A. KOUTSANTONIS: In terms of consultation, was the Australian Energy Market Operator consulted on these changes?

The Hon. V.A. CHAPMAN: I am advised by the Minister for Energy that he believes that that is the case. We have a COVID situation here in the parliament where I can only fit a certain number of advisers in here, so if the member would be so kind, he could just raise those issues when we get to the energy amendments.

The Hon. A. KOUTSANTONIS: Given I only have a few questions per clause, sir—

The CHAIR: Yes, but I was just going to speak to that, member for West Torrens. I am happy to give you some latitude on that—

The Hon. A. KOUTSANTONIS: Okay, thank you, sir.

The CHAIR: —given that we have a unique situation. Everyone is happy with that by the sound of it.

Clause passed.

Clause 2 passed.

Clause 3.

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

Amendment No 1 [AG–1]—

Page 2, line 13 [clause 3(1)]—After 'section 7' insert ', section 10A(4a) and (4b)'

This amendment is entirely consequential on the proposed disclosure of information on the website clause, which will be presented as well, similar to the one—

Mr Picton: We haven't seen either.

The Hon. V.A. CHAPMAN: You can go and get a copy from the table.

The CHAIR: Just for members' information, this has only recently been lodged, but we are attempting to get copies as soon as possible. Do you have a question, member for Kaurna?

Mr PICTON: Yes. Clearly, I have just been handed this 10 seconds ago, so I have not seen how this relates to the original act. While we look that up, I am wondering if the Attorney can outline why it is necessary to amend clause 3, which, as I understand it, relates to the time at which this expires in relation to having a disclosure scheme. It certainly was not something that was raised with me by parliamentary counsel when I drafted my amendments, and I would not imagine that a disclosure scheme would need to continue on past the expiry of the entire act, so maybe if you can outline what this is while we all have a look at it.

The Hon. V.A. CHAPMAN: I hope this will assist those who are following this. The member for Kaurna foreshadowed an amendment relating to a disclosure process in the course of debates. I read that while other speakers were speaking, and I identified that there were aspects of it which, although we were not suggesting they were completely necessary, if we had a slightly different time frame and it was reworded, we could accommodate that.

We quickly consulted with the Public Advocate and Chief Psychiatrist, who both have a role in relation to this inspection process, and I am advised that what they can accommodate is essentially the same information the member would like to have disclosed, but not on a weekly basis. We are suggesting that that be all provided within 14 days at the end of the declaration. It would be put on the website, it would be completely transparent and it would be available.

This clause that we are looking at now is really on the basis that in clause 5 we add in this extra provision; that is an amendment too. I am happy for you to hold clause 3, move to clause 5 when we get to it and deal with clauses 3 and 5 together if you wish. I am obviously entirely in your hands, but I indicate that the whole purpose of this is trying to accommodate a request of the member for Kaurna to take into account what they think should be transparent, and also at work with the people who are actually on the ground doing all this, and can work in with a compliance arrangement with this extra responsibility.

I remind members that we are in the middle of a COVID pandemic and that there are some high demands on the people who are actually doing this work. Nevertheless, we are trying to accommodate it and make it available for the benefits that have been outlined already by the member for Kaurna.

The CHAIR: We have a consequential amendment before the Chair at the moment. If we do not vote on that now, we can pass clause 3 as printed and reconsider the amendment later if you want to. I might give a member of the opposition a chance to ask another question on the amendment and perhaps indicate what they would like to do with that.

Mr PICTON: I indicate that we are happy to proceed on this clause and this amendment. I am happy to go ahead.

Amendment carried.

The CHAIR: The next question before the Chair is that clause 3 as amended be agreed to.

Ms COOK: In regard to these amendments around the end dates, why has a similar approach not been adopted in terms of the provisions in section 8 relating to residential tenancies or section 9 relating to residential parks? Why has this only been considered for this section?

The Hon. V.A. CHAPMAN: We are looking for an answer in relation to that, but can I just say that the residential tenancy arrangements, which had a structure in the previous act, which allow for continued resolution if necessary by the SACAT, is an existing process. We are creating a whole new model here and so, unsurprisingly, because we indicated last time we were here dealing with these COVID bills, we were needing to complete how the commercial, retail and industrial leases were going to work under this structure, and that is why we are back here to deal with those. Can I suggest that the residential tenancy arrangements are neatly packaged back in the last act and that we do not need to change it.

Clause as amended passed.

Clause 4.

Mr PICTON: The first question in relation to this clause is this. Noting that the government has not yet laid on the table the regulations that will be made under this clause, but I understand they have been circulated, will the state government be implementing the national mandatory code in full, as announced by the Prime Minister in early April? If not, what parts of the code are not intended to be implemented in South Australia and why?

The Hon. V.A. CHAPMAN: I will start by making some opening comments. No state in Australia is going to implement the national code in full. There has been some discussion, as you might appreciate, mainly between treasurers and all the intelligent people who advise them around the country, to work out what could be adopted and what could not be. I think I said during the contributions that matters such as those in the national code that refer to the utilisation of a binding mediation, whatever that means, are a bit of a mystery, I think.

I have described this code of practice as a bit like the Ten Commandments: they sound like a good idea and they have some good principles, but they are not necessarily in a form that actually can be a helpful and prescriptive enough guideline as to what we are doing. That said, and based on discussion around the country, this clause sets out all the things that need to be able to be covered by regulation if we need to. So it is very broad. As the member points out, we have circulated draft regulations, which are not before us in this debate, unusually in a situation like this, but again we are dealing with this matter as expeditiously as we can.

In those draft regulations, you will see that there are a number of provisions outlined to be incorporated in those regulations. In particular, clause 7 of those regulations sets out the prohibitions and restrictions relating to commercial leases. From there, it sets out what is not to be done and what is to be protected. Then the mediation is outlined for the Small Business Commissioner and his process.

On the determination of the relevant dispute by a court, which sets out the factors that must be taken into account by the court, I invite the member to have a look at clause 9(8) of those regulations, which sets out a list of matters that a court must have regard to if they have to determine it. Also, clause 7 repeats another very important principle in the national code, and that is that if a court makes an order under the subregulations then at least 50 per cent of the rent relief determined by the court must be in the form of a waiver of rent.

What we do not have in the regulations is a process where there is a mandatory mediation or a binding mediation. We have a process, which we currently have under commercial, industrial and retail tenancy, which says, 'If you can't sort it out between yourselves, you go to the Magistrates Court,' but we have added in here, in the special circumstances of COVID-19, a very particular role of the Small Business Commissioner—and we have given resources and identified attention specifically to this issue for him and his office—to be able to give an alternate process for people to get through this situation.

Negotiate if you can, as you normally would, but if you cannot there is mediation. If there is no resolution, a certificate will be signed confirming no resolution, and then the Magistrates Court, which they currently do to sort out the decision. But that advanced copy of the regulations is our attempt to indicate, as clearly as we can, what we propose will be covered. I now have it in writing, so I do not muck it up.

On the two issues I want to further add to, firstly, the national code itself says is to be implemented by the states as appropriate. It was not intended to be something that was a commandment from the Prime Minister. Secondly, the issue that significantly changed is the provision which says in the national cabinet principle that landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals of up to 50 per cent of the amount ordinarily payable on a case-by-case basis based on the reduction in a tenant's trade during the COVID-19 pandemic period and subsequent reasonable recovery period. We have changed that.

It relates to the reduction in the turnover of the lessee. In one factor, the court must have regard to making an order for rent relief. The court must also have regard to the other factors including the ability of the lessee to pay rent and the ability of the lessor to provide rent relief. They are the clauses I have just referred to, together with the proposed regulation 9(8)(b) and 9(8)(d) and (e). I am advised that is really the only area of significant change. Ours is a more flexible process, we think, and we think that will serve us better to be able to accommodate all those idiosyncrasies that happened with negotiated arrangements in this difficult time.

Mr PICTON: I think I understand what the Attorney is saying in terms of how she believes this will be a more flexible approach. But is not there an issue if the government is not mandating a model that makes rent proportionate to trade? What guidance will businesses and landlords have to help deal with that consistency? Is this not going to be an issue where more businesses are going to have to fight their way through the courts, as the member for West Torrens outlined in terms of his constituent, a dentist, to appeal this matter to get some relief? There is no default in terms of what is being proposed here. The only way to resolve it is to go through a court process which is likely to be significantly costly for people. Therefore, what guidance will businesses and landlords have to help deal with consistency? Is there not going to be an issue in terms of resolving disputes?

The Hon. V.A. CHAPMAN: The concept here is that, if there is a prescriptive measure, that every tenancy gets a payment equivalent to, say, 50 per cent of their rent for the time that COVID goes on, say we did something like that and said that 50 per cent of everyone's rent is going to be paid. Clearly, the dentist that the member for West Torrens mentioned might get a benefit from that but may not get anywhere near enough. There may be others for whom that is completely inadequate.

I utterly reject the concept that everyone is forced to go to court. At the moment, they negotiate these themselves and they go to court if they cannot resolve them. We have added in a new process here which helps them to be able to resolve it without going to court. That is, the Small Business Commissioner is available to sit down with the parties and work through this and have some resolution if they cannot do it themselves with or without legal advice. That is a completely new process that we are adding in there, directly targeted to support these people who are trapped in a situation where the business has either collapsed or been closed down and/or in a situation where there has been no relief at the other end.

Some of these relationships will have banks breathing down their necks. Some of them will not. Some of them will be desperate because it is the only area of revenue that a landlord might have to feed his family, etc. These situations are different and on this side of the house I think our Treasurer has carefully worked with the other treasurers around the country and taken advice on this to try to make sure that we have a model that is accommodating enough to be able to cover that and to have some equity into this, so this is the model that we have taken up.

Other jurisdictions have used this model as well. I do not think all of them. It is Victoria mainly, as I think I already said in the second reading. Perhaps the Victorian Labor government thought it was a good idea. We do and we think, via the Treasurer, that it will provide some fairer outcomes. We have lots of situations where we do not just give people a fixed amount. In some other areas of law we do. If you lose a finger in a car accident, it is worth the same these days whether you are a surgeon or the member for Kaurna. The reality is that one size fitting a prescriptive dollar amount so that everyone gets the same can be a quick and deadly approach.

We want to do something that is more proportional and takes into account the real world and the fact that there are very different factors that get taken into account. I have confidence that the business commissioner is experienced enough in the negotiation of these matters. His job, along with his team, is to be a mediator. They have redirected their resources, at the request that he be relieved of some duties to be able to not advance certain legislation that we sought. All of these things—

The Hon. A. Koutsantonis: He's going to be overwhelmed.

The Hon. V.A. CHAPMAN: The member for West Torrens calls out that he will be overwhelmed. I have regular discussions with the Small Business Commissioner. He is responsible to the Attorney-General's position under our government. We have worked quite well in relation to providing him with other support and also discussing with him the process that we have discussed here.

What he does not have a role in doing, which I think probably would be a massive extra requirement for him if he did, is to arbitrate these matters—that is, to make a determination himself as though he were a judge. We have left that with the courts as it normally is, but we have added in this process to enable him to undertake that mediation role. It is not just him. He has a whole team of people who can provide this service and he is getting ready for it.

I should say that he is already offering a number of services via Webex to a lot of the small business industry as well, and no other states who have published their position on the code, I am advised, are implementing proportionality.

Mr PICTON: I just want to correct that that is a very straw man argument from the Deputy Premier. No-one is saying that this should be one set amount, such as the loss of a finger in a car accident. People are talking about a proportion tied to trade. That is what was in the national code. I just want to correct that.

The Hon. V.A. CHAPMAN: What I am indicating to the member, just to be absolutely clear—

Mr PICTON: I am sorry, I was still speaking.

The Hon. V.A. CHAPMAN: —is that no other jurisdiction has done that.

Mr PICTON: You will have your opportunity, Deputy Premier.

The CHAIR: As we all will, member for Kaurna. You have the call.

Mr PICTON: Thank you very much, Chair, for your protection. The delay of these matters in the implementation of the national code is something that we have been asking about for some time. When the Treasurer was asked about this previously he said there was an issue in relation to feedback from stakeholders who thought the $50 million threshold should be higher or lower, but now we are seeing that the $50 million threshold has been kept exactly the same. If the $50 million threshold was a key reason for delaying the measure, why have they used the exact same figure as early April?

The Hon. V.A. CHAPMAN: I am advised that there was a range of issues on which there was consultation, but the $50 million aspect was there, as the member quite rightly points out in his own statement, and that is that some wanted it higher and some wanted it lower. That is the position that has been settled upon. It was seemingly a good idea when it was proposed and it remains so, so we have adopted it.

Mr Picton: With a delay.

The Hon. V.A. CHAPMAN: I heard that interjection and I am happy to answer it. There was a delay, but we say it is actually a consultation. They might call it a delay. We call it a meaningful consultation on the $50 million threshold and other issues. There were important considerations in that. That issue did not change, but we have listened. As has been pointed out, some think it should be more and some think it should be less. Perhaps Mr Lucas got it spot on to start with.

The CHAIR: Member for Kaurna, I think you were lucky enough to get four questions in there. Member for Lee.

The Hon. S.C. MULLIGHAN: Thank you, Chair. I am looking forward to you making up for that by allowing me four questions. Can I draw the Attorney's attention not strictly to the bill but to the regulations pursuant to clause 4 and in particular to clause 8 at the top of page 6 of those regulations. My understanding from reading this section of the regulations is that, as the Attorney has just said, this relates to how the commissioner may mediate these disputes between landlords and tenants. I am particularly interested in subregulation (3) where it says:

The Commissioner must, at the conclusion of the mediation, issue the parties to the mediation with a certificate, in the form determined by the commissioner…

My assumption is that that is not just for their benefit, but likely for the benefit of a court because from paragraphs (a), (b) and (c), it gives the impression that the certificate is issued that makes it clear that the mediation has effectively failed and, when we come to (c), if a party to the mediation has refused to participate, the fact of that lack of participation. My first question to the Attorney in this area is: does the commissioner have further discretion to allow him to include any additional information in that certificate that he may think would assist the court beyond what is provided for in (a), (b) and (c)?

The Hon. V.A. CHAPMAN: No, member for Lee, and I suggest for good reason. It is not his role to identify what his opinion might be or what he thinks might be a fair settlement. That is a matter for the court to determine. That is not to be identified as the meritorious case or otherwise of one or other of the parties or, indeed, a third view by the commissioner. It is a document to confirm to the court that there has been an attempt at mediation, it being an encouragement at least for people to attend that process and have some meaningful discussions.

If they cannot agree, we accept that. It is a perfectly legitimate right for people to have a determination made. They may have an unreasonable counter proposal from the other side, but to suggest that this document is some kind of summary of what would be a reasonable outcome for these parties, it is not for that purpose at all. It is simply to certify that they have been through the process or if someone has failed to do that. I expect that will be most useful down the track if the court has to consider any cost orders.

The Hon. S.C. MULLIGHAN: I understand the point that the Attorney makes and I think in that regard she is absolutely right. I was not so much asking that for the purpose of the commissioner being able to provide his opinion or interim determination that was not able to be made because the parties were not consenting, but it was more to suggest that the commissioner would be able to communicate to the court the facts that were presented to him by both parties in case a failed mediation, which happened in front of the commissioner, was then appealed, for want of a better term, to the court and one or maybe even both parties then tried to run an entirely different set of facts to the court.

In a position where there is often a power imbalance, if I can put it like that, between a landlord and a tenant, perhaps in the landlord's favour, that may significantly disadvantage the other tenants. I was asking in the context of providing the facts that were presented to the commissioner rather than providing any sort of opinion from the commissioner. Would that be something that is possible to include because, as you say, the way paragraphs (a), (b) and (c) are worded are as facts: the fact that they were unable to reach resolution and so on.

The Hon. V.A. CHAPMAN: They are pleadings. Remember they are at mediation stage. To assist with the mediation, it may be necessary to bring certain material to establish reduced turnover and things of that nature. The mediation process does not require a process of pleadings like would ordinarily occur in the courts, so it is a much more informal process. Again, it is not a matter for the Small Business Commissioner to make a list of what he sees as the facts. They may be the claims of each party, but they have that opportunity, if they have to go to court or opt to go to court, to do that.

I also identify and am advised that clause 8(4), which is that same area you are looking at, applies section 67C of the Evidence Act, which is the privilege in aid of settlement without prejudice privilege. That relates to the whole of those with that mediation being a privileged forum, so discussions that they have had there and assertions of fact. I do not think any of that material is on declaration or affidavit, is it? No; I am getting shakes of the head from the legal experts over here.

That process is an informal, privileged environment—attempt to settle, put all the cards on the table and see if they can mediate something. If they go to court, they outline the detail of the factors to support each of the matters that are to be taken into account by the court and run the risk. I might point out that the Magistrates Court also has a mediation process, which may be well known to the member for Lee. They sometimes receive an application—

The Hon. S.C. Mullighan: Do I look like someone in need of those services?

The Hon. V.A. CHAPMAN: No, I just thought you may already be familiar with that, but if you are not, I will just let you know. It is a very important service that works to assist mostly in civil matters in the Magistrates Court. It might be a fencing dispute, it might be a car accident, it might be a builder's dispute over a bathroom, it could be defamation, it could be all sorts of things. In any event, they have a mediation process, which I think is still free. I do not think I have imposed any fees on it.

That is available for further discussion, so it may be that in the court process, which is always open to the magistrate, they indicate that they end up having to make a decision on a much narrower area of dispute; that is, they have agreed on A, B, C, D, E and F and are just really arguing over the next point. What I am saying is they might be able to narrow the issues in dispute. These processes are important. If they can resolve them and have a mediated outcome, great; if they cannot, the court is there to deal with it.

The Hon. S.C. MULLIGHAN: My next question is in that same area but in subregulation (5) of regulation 8 of the regulations, immediately below where we were just speaking about. It is about a person or perhaps a party to a mediation being precluded from divulging any information to someone outside that process, I presume.

My question was: would that include, for example, information being divulged to someone like us—a member of parliament—or to someone similar? I can envisage a situation where there may be a landlord in a scenario where there could be seen to be a significant power imbalance between a landlord and a tenant. A tenant has somehow convinced that landlord to participate in a mediation, which I understand requires both parties to consent, but nonetheless the landlord is being obstinate or obdurate in seeking to frustrate a mediation.

It would be reasonable, I would think, for perhaps an individual shop owner at a Westfield or a Scentre Group—I do not mean to single them out, but they just happen to be the organisation that needlessly installed boom gates at the centre in the middle of my electorate and, in fact, has only taken them out due to the coronavirus. It makes you wonder why they could not have taken them out six years ago when football left Football Park, but let's not digress into the obstinance and obduracy of Scentre Group and Westfield for the purposes of this.

My question, really, was about whether an individual, perhaps shop owner or retailer within a very large centre which is part of a very large corporate structure, is able to come and speak to their member of parliament, or speak to even the media about how they have been given the run-around?

The Hon. V.A. CHAPMAN: I want to thank the member because, although I do not think discussing it with a member of parliament is a problem, I think the question it does raise is bearing in mind that this clause is designed to be able to protect the business information, someone's turnover, or a special model of operation they might have.

I can remember a supermarket company having negotiations with the former government, for example. There were a whole lot of issues about how a new model of a supermarket was going to operate, and that was an intellectual property they wanted to keep secret. It was designed to stop me being able to get a whole lot of documents under freedom of information, which is why I remember it so vividly.

But I make this point: people operate businesses, and it may be very important to them that the information about their business is kept confidential so that it is not used to make them either commercially uncompetitive or vulnerable to some commercial behaviour, which obviously puts them in a poorer position. Given that, and given the importance that it is personal information—somebody might disclose a health issue, for example—relating to the business processes, that is, the way they might operate and the financial information, such as turnover, then all that is to be kept confidential except in those certain categories.

What has just been alerted to, though, by virtue of your raising the question, is somebody who might come to you out of a mediation and want to complain about the process or complain, 'He said this during this information.' Is that protected? That raises a question about the parliamentary privilege—that is, the privilege of the person who complains to their MP—and that is not covered by this, and we would have to get some answers on that.

However, what it does raise is this question of what if information comes to me and I am asked questions in the parliament about this particular financial arrangement and that information has been disclosed during the course of this mediation, and what is my obligation to provide that information to the parliament. It starts out to be a good idea with good intention to protect that sort of discussion in silence so that there is no unfair competition or prejudice to the party who releases this information, as well as raising, of course, other concerns that might come out of it.

We will have a look at that issue. I am not so worried about your scenario, but I am now raising a question in my own mind before I get asked the question in parliament at 2 o’clock tomorrow. I must say that at this stage I have not actually had anybody come to me with the details of their financial arrangements, but it is something we will have a look at.

The CHAIR: Member for Lee, question No. 4, but I am once again giving you some consideration because it is a long clause.

The Hon. S.C. MULLIGHAN: Thank you. It is a very long clause.

The CHAIR: Yes, but this will be the last one.

The Hon. S.C. MULLIGHAN: Thank you. Just to clarify for the Attorney, and just to close off that last issue, I am not so fussed about the protection that might be afforded to me as a member of parliament or to her as a minister. I am pretty comfortable that we are protected by privilege. What I am concerned about is Joe or Jane Bloggs, the small retailer who is struggling with a lease arrangement they have a multinational retail group, who comes to me and says, 'I went through this mediation process, and I'm $50,000 down only in the last three or four months and they have offered me a $1,000 a year rental discount. They are not being reasonable about this.'

I would hope that that would not be an offence under these regulations because in that circumstance that person may feel that they (a) want to approach a member of parliament and (b) do not feel confident appearing against such a large corporate in a court that they might want to avail themselves of you or me or any other member of parliament, for example. Just to close that off, I was going to ask whether the offences and the fines that are set out in clause 4 are relating to that.

The Hon. V.A. CHAPMAN: Let's start with the last first. In answer to that, no. This is not an offence clause. This is just an obligation not to disclose matters that come about during the course of the mediation except in those circumstances. Between the houses, we will look at whether we need to add a clause in to deal with information that might be sought in the course of obligations under another act that might relate to questions that I may be obliged to answer. But this is designed to let people feel as though they are going into these mediations with a genuine attempt to resolve it, and they can say what they like in that sense without fear that it is going to be published somewhere else. That is the idea of this.

That general issue has been raised in the consultation on it with other members, where people have said, 'I don't want to have to disclose to my landlord exactly how much money I get or what my other expenses are.' You may not want to but, if you want to have some relief, we are going to have to have a process where we try to accommodate that. This is designed to try to make them feel as though that information can be provided on the basis that it cannot be published.

The Hon. G.G. BROCK: Following on from the member for Lee on the regulations, on page 7 it states:

(e) an order to defer the payment of rent under an affected lease for a specified period not exceeding 24 months…

If, for argument's sake, the lessor is a sole trader and the lessee is a sole trader, and they only have 12 months of their lease left, could that be taken into account with the mediation?

The Hon. V.A. CHAPMAN: Again, we are back on the regulations, but I am happy to try to answer the question for you. The orders under subregulation (5) that you have referred to are the factors that the commissioner takes into account relating to the court, which is down under the court determination under subregulation (9), that is, the court has power to also be able to extend the term of the lease. So, 12 is within that 24, but it is not prescriptive. It does not mean that it would drop out. It could still be dealt with, and there is still a capacity in the determination that it makes to deal with that by an extension under subregulation (9).

The Hon. G.G. BROCK: Further on that, you are saying that the courts could extend the lease, but what happens if the lessee just walks out at the end of the lease period with no compensation back to the landlord who is also a sole trader, bearing in mind that in my case the sole trader is also the lessee. I would have thought he may be able to get the JobKeeper payment. There is a bit of confusion here as to whether he could just walk out at two years.

The Hon. V.A. CHAPMAN: The 24 months is up to, so if there are only six months left in the lease that is a factor that would be taken into account.

Ms COOK: Can the Attorney explain the retrospective nature of the regulations because that is a serious departure from general legislative standards that could have a significant impact on legal rights and the relationship between landlords and tenants. Have there been any concerns about that precedent raised in this part during any consultation, particularly from the legal fraternity?

The Hon. V.A. CHAPMAN: The retrospectivity is an interesting aspect of this. On 29 March, the Prime Minister announced that everyone is going to be protected, so the legislation under the act which we are proposing to amend here said, 'We will start these commercial arrangements retrospectively from 30 March.' The primary act already does that. There is an exception to that, though, and that is why the regulations follow that, and I will get a big shaking of the head if I do not have this exactly right.

If, in the meantime, tenants have worked out a commercial arrangement, say from April through to May, and then these regulations are promulgated and they want to go to the business commissioner and try to sort out something different because they think, 'Actually, I think I'm a bit ripped off under that deal. I want to go back. I want to go and speak to them now this has all been laid out,' that is important because whatever the deal has been through April and May stands. That is not a retrospective applicability.

So, if they go to the business commissioner and start negotiating a new deal, that is fine. If it does not resolve and the court makes a determination, they will make it from now rather than from back in April and May. Have I covered that properly? It is a little bit complicated. However, certainly since March, people have been out of work and businesses have been smashed. We have had this problem around for a while.

Whilst we have set up the protection under the umbrella of the legislation with the regs hopefully now on their way—which is why we have given everyone an advance copy—we can obviously try to do the right thing by those who have not resolved anything so far. They will be able to deal with it. But if they have actually been carrying out a different agreement in the meantime, they cannot go and undo that and say, 'Actually I want back pay on this.' Does that make sense? I hope it does.

The Hon. A. KOUTSANTONIS: What is the capacity of the Small Business Commissioner to mediate? How many requests a day can he mediate?

The Hon. V.A. CHAPMAN: I have not asked him that question. I have asked him, though, throughout this process to identify what work he has been having to do in the environment that we are all in, where a number of industries and people have lost their income base and all their suppliers have disappeared. There are lots of different reasons people get really acutely affected in a situation like this, and they change because some have been able to do some work.

Your dentist can go back to work and he can do his work again in orthodontics and various things within certain specialities. So things come in and out, but there is no doubt that some sectors are out and they will be for a while. I do not think there is going to be a huge lot of sympathy for people who are on millions of dollars of income, who might be AFL footballers. However, small businesses have been affected and it is a long way from being over. I hope that answers the question. If it does not—

The Hon. A. KOUTSANTONIS: This is not a new question. Just to clarify, the question I asked you was: what is the capacity of the Small Business Commissioner to mediate? How many commercial tenancy disputes can he mediate a day?

The Hon. V.A. CHAPMAN: As I say, I have not asked him that question but I have asked him to identify what resources he would need. He said, 'I have three people working on a particular piece of legislation. I would prefer to reallocate them for this purpose.' No problem. I do not think he needs my permission to do that formally, but it is a process that is reasonable when you are asking somebody to do a specific task, to actually prioritise something else. We have had lots of these.

There are magistrates helping out coroners and I think liquor licensing inspectors are doing something else because what can they do at the moment when there are no hotels to check on? Do you know what I mean? There are ways of reorganising and supporting, and the public sector generally has been excellent in being available to say, 'I can work from home on this particular aspect' or whatever. It is in this category where pretty much everyone is focused now on this job in the Small Business Commissioner's office.

The Hon. A. KOUTSANTONIS: How many commercial tenancies in South Australia are impacted by government closures?

The Hon. V.A. CHAPMAN: I have no idea. There is an expectation that about 19,000 businesses might apply for the $10,000 grant. My adviser is here from the Treasury department, and apart from being down here, I think they are working night and day to process all these applications. If you have 25,000 small businesses with revenues—and these are estimates—how many are going to apply? We do not know yet how many are even going to apply.

The Hon. A. KOUTSANTONIS: The reason I ask these questions is that the government will not set out an arbitrary process or compel arbitration other than through a court process. Small businesses are already struggling through the COVID closure: they are cash poor; they are still awaiting the government's $10,000 grant, if they are eligible; they are still waiting for commonwealth payments, if they are eligible; and they are in a dispute with a landlord about rent. There are thousands if not hundreds of thousands of people who hold ABNs who may be in commercial tenancy leases across South Australia.

The idea is that somehow they can survive by contacting the Small Business Commissioner to enter into mediation. The feedback that I am getting, not just from the dentist I talked about but generally in my community, is that they hear the Prime Minister talk about a proportionate reduction linking turnover to rent. I take the Attorney-General at her word that this has not been implemented uniformly across the country.

The process that the government is setting out here seems complicated, difficult, timely and ultimately expensive, because it will mean the engagement of legal advice ultimately if they are not satisfied. I wonder what the queue will be at the Small Business Commissioner's office. If it is not very long, I suspect that means the program is a failure; if it is long, it means that they have been overwhelmed.

This is not a Goldilocks principle, where they get it just right, because there are potentially thousands of commercial tenants who are being impacted who are getting no rent relief from their landlords and, because of the process outlined by the government today, those commercial landlords can hide behind this process and do what they have been doing since the government statutory closure has been put in place, and that is hide behind the process.

I am not implying motive here on the government; they are trying to work out a way of doing this, but I think the practical application here is that a small business that is already time poor attempting to reopen—we will go back to the dentist—to do work that does not involve any sort of aerosoling, so drills cannot be used.

The Hon. V.A. Chapman: High-speed drills cannot be used.

The Hon. A. KOUTSANTONIS: High-speed drills cannot be used. So their turnover is down dramatically, down 60 to 70 per cent. They are being asked in their spare time to mediate with the Small Business Commissioner, if they can get an appointment. Then, if that fails, they are being asked to go to the Magistrates Court. That might seem great in theory, but in practice I suggest to the Attorney-General that this is not a process that has been developed by anyone who has been in small business or has held a commercial lease. Because, if you hold a commercial lease you do not have time to be doing all this during COVID-19. You are trying to stay afloat.

I hope we do not come back here and the government has got it wrong because the consequence of losing these small business could be irreparable to the South Australian economy. I do point out to the Attorney-General that in later amendments the government does act arbitrarily and does set in cut-off points, and I talk about small business that are generating electricity. They are cut off arbitrarily with no mediation and no compensation, yet commercial tenants are being asked to go through this other process.

So I would like the Attorney to take this question on notice: how many commercial tenancies does the government estimate this to be? The Attorney-General told us about 19,000; I suggest it might be more. I would also like the Attorney to take this on notice: what is the capacity of the Small Business Commissioner and his team, with all the extra pooling that is going into the office and all the other work being deferred? How many cases per day can they mediate? You do not have to answer that now; you can take it on notice.

The Hon. V.A. CHAPMAN: I will take that as a speech but I will add, for the assurance of the house, a couple of things. Firstly, I have not inquired of the Small Business Commissioner how many he expects to do a day and, as the member might appreciate, it will depend on whether mediation takes an hour or takes half a day. But he has a team. He has a panel of mediators that he is pulling in for this purpose, and he has not asked that that be extended. That is the first thing.

Secondly, I think perhaps the member does not appreciate this, but many thousands of corporate, small business or otherwise commercial tenancy arrangements have their own advisers in relation to these matters. They have their own views about whether or not they want to keep things confidential as to what the financial arrangements are, and for different reasons they will have their own advocates, financial advisers and/or mediation processes already set up. They may have an ongoing use of those private people for the purposes of renegotiating the terms of their lease, for example, as they come up to expire.

I think it is important for the parliament to appreciate that we are certainly not expecting everybody in this category, where they are affected adversely financially by COVID, to go along and seek the assistance of the Small Business Commissioner. There is a huge proportion—we would expect the overwhelming majority—that will have negotiated their own arrangement. They have the list now and they can say okay and then negotiate an arrangement about what they might defer as a payment for a couple of years and a reduction in the meantime. I expect that to be overwhelmingly the majority; otherwise, you have private facilities and other advisers people use.

Remember, in this area, unlike residential tenancies, which is a fairly protected species I suppose in the sense of legislation and has a very prescriptive obligation there for what landlords and tenants have to do, landlords and commercial tenancies, retail and industrial, work in a commercial space. I know one of the members so far in committee has raised the large corporate landlord and the poor little small business tenant—of course, it is the reverse sometimes. We could have a major supermarket in a little shopping centre area that is owned by Mr and Mrs West Torrens and this is their livelihood. It is their income. You could hardly say that that is a power balance but, both represented, that may be adequately dealt with.

I make the point that the Small Business Commissioner has had a number of discussions with me. He is targeting his attention to this. He has not sought other resources to deal with some tsunami of cases that is going to come to him. We respect the independence, the financial independence and the particularly critical confidential nature of a lot of information in businesses that will no doubt direct people going to other agencies other than the Small Business Commissioner. But we are offering this as a step in the process to accommodate the area of those who might need it. I think it is fair to say that this formula is getting traction around Australia with other jurisdictions as a means by which we assist this particular sector to get through this particular issue.

Clause passed.

Clause 5.

Mr PICTON: I will not be proceeding with my amendment, but I seek to amend the Attorney-General's amendment.

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

Amendment No 2 [AG–1]—

Page 8, after line 12 [clause 5, inserted section 10A]—After inserted subsection (4) insert:

(4a) A community visitor must ensure that the following information is reported on a publicly accessible website within 14 days after the expiry of the other provisions of this section under section 6:

(a) the number of visits or inspections by the community visitor that have occurred by audiovisual or other electronic means in accordance with this section;

(b) the name and location of any premises subject to such a visit or inspection;

(c) the date on which, and time at which, each such visit or inspection occurred;

(d) the reasons why each such visit or inspection occurred by audiovisual or other electronic means in accordance with this section;

(e) if a visit or inspection by audiovisual or other electronic means in accordance with this section was not possible for any reason—the reasons why such a visit or inspection was not possible.

(4b) A report under subsection (4a)—

(a) must identify, by reference to paragraphs (a) to (d) of the definition of community visitor in subsection (5), which category of community visitor the report relates to; and

(b) must, in a case where the report relates to a category of community visitor referred to in paragraph (a), (b) or (c) of that definition, be made by the Principal Community Visitor (within the meaning of the Act to which that paragraph relates).

I indicate that this amendment is largely based on a proposal submitted by the member for Kaurna. Some of this may seem a little superfluous, but we have consulted with the relevant parties and are hopeful that this will accommodate what is being sought, and it is consistent with our desire to be transparent.

Mr PICTON: I move to amend [AG-1] 2 as follows:

Delete 'within 14 days after the expiry of the other provisions of this section under section 6:' and replace with 'and updated on at least a monthly basis:'

As the Attorney said, this was originally a proposal that we put forward to provide some transparency in relation to this matter under this clause which deals with community visitors but also inspections by the Chief Psychiatrist being undertaken by videoconferencing rather than in person visits. We have some concerns as to the efficacy of how that would work and whether that would provide adequate protection for the people in those premises, particularly mental health facilities, as to just a videoconference to do the inspection. At the very least, we think the government needs to make sure that there is adequate transparency with what is going on.

I appreciate that the Attorney has sought fit to agree with a large percentage of what we proposed. There are a few changes, though, that the Attorney has recommended. The one that I seek to amend is in relation to her proposal that the transparency should only occur after the end of the pandemic and after the end of this bill being in place. My proposal was originally that these figures should be updated on a website weekly. That would not be a difficult or onerous task to do and it would provide ongoing transparency as this pandemic goes on. Waiting until the end seems not very transparent at all as to how this is going.

Therefore, I am happy to meet the Attorney halfway. We suggested weekly, she is suggesting after six months; therefore, we propose to change this to a monthly reporting arrangement. The Attorney has taken this out of the hands of the minister and made it the responsibility of the Chief Psychiatrist, the community visitor. We are okay with that as long as that actually happens, but it should not be something that just waits until the end. Therefore, I have moved this amendment in my name.

The CHAIR: So that Hansard has captured this, the member for Kaurna has moved to amend the Attorney-General's amendment by removing the words 'within 14 days after the expiry of the other provisions of this section under section 6' and replacing those with 'and updated on at least a monthly basis'. Have I got that right?

Mr PICTON: Correct.

The Hon. V.A. CHAPMAN: We have quickly checked with the relevant officers. That is probably achievable but I am just trying to clarify here. The new wording will say that 'a community visitor must ensure that the following information is reported on a publicly accessible website'. It does not say anything about it being within seven days of conducting the inspection or any time limit there. It just says 'and updated'. Presumably, they must do it, there is no time limit, but then update it at least a month after. It may need a little bit of addition even to that.

We are not unhappy with it being basically a monthly reporting process. We have checked with the people and that is achievable. But does the member appreciate the difficulty there? There is no indication as to when they must do it. Obviously, they cannot do it forthwith, but these people will do their inspection. You are expecting that this data will be recorded, it gets recorded in all sorts of places, but in some reasonable timely manner, they will put it on the website and then, if they do other visits, they will do it every month after that. If the gist of it is that, I am happy to accept the amendment as it is.

Mr PICTON: Essentially, the initial amendment that I moved based on the same parliamentary counsel advice as the Attorney has was that the minister 'must ensure that the following information is reported on a publicly accessible website and updated on at least a weekly basis', then that got changed to having to be on a website, etc. 'within 14 days after the expiry of the other provisions of this section under section 6' which basically means at the end of this whole thing. What we are proposing is that the information should be updated on a monthly basis. If the Attorney is saying that you have to do it on a monthly basis and it has to be done within seven days or something after the end of the month, I am happy with that.

The Hon. V.A. CHAPMAN: To start with.

Mr PICTON: I do not think we need to get to that level.

The CHAIR: Attorney, just wait. The member for Kaurna is on his feet.

Mr PICTON: Thank you for your protection, Chair. I do not think we need to get to that level of complication. I would have thought that a reasonable statutory interpretation would be that every month there should be an update of that information (a), (b), (c), (d), etc. that has been provided.

The CHAIR: So the member for Kaurna's amendment would have clause 5(4a) read:

A community visitor must ensure that the following information is reported on a publicly accessible website and updated on at least a monthly basis.

Amendment to amendment carried; amendment as amended carried.

Mr PICTON: I have a couple of questions in relation to clause 5 generally. I am happy, if the Attorney does not have these details, to take them on notice between the houses. Has there been any reduction in the inspections or visits so far since the beginning of the pandemic? Clearly, if this is an issue, then there may already have been some reduction in those inspections and visits, or have the Chief Psychiatrist and his delegates been able to conduct inspections throughout the process up until now, where they are asking for this change to be made?

Perhaps the Attorney can take on notice, as a comparison, the number of visits that have been undertaken by the Chief Psychiatrist or their delegate in April 2020 compared to April 2019, so we can see whether they have been able to manage these visits or whether there has been a reduction over that time.

The Hon. V.A. CHAPMAN: I will take on notice the April to April and whether there is actually a reduction overall. I suppose we are looking at March and April as the key COVID months this year, compared to March and April last year. As the member is aware, in relation to the community visitors—just for the record of the committee too—we currently have 43 community visitors. There are 46 units or wards visited within 14 treatment centres, and 13 community mental health facilities that are visited under the Mental Health Act.

We on this side are very proud of this provision, because we moved this amendment from opposition to insist that we have community visitors. There are currently 177 sites that are visited by community visitors under the disability Community Visitor Scheme regulations, and that is once a year. Specific to the question of a reduction in number, we will come back to you between the houses on that.

Mr PICTON: To clarify, this is not just covering community visitors; it is also covering the Chief Psychiatrist. We asked about some of the advice generally, but in relation to this clause specifically it does strike me as curious that we have very strong and clear public health advice that it is okay for people to conduct visits to their loved ones in aged-care facilities in a controlled manner, in accordance with the regulations. That has been the public health advice from the state government.

They are not being prohibited in total, but here we are saying that it is difficult for the Chief Psychiatrist or his delegate to visit these centres in SA Health. What has been the public health advice? Is this something that the Chief Psychiatrist and the community visitors themselves have come up with, or has there been specific public health advice that it is not appropriate for the Chief Psychiatrist to visit mental health facilities during this period?

The Hon. V.A. CHAPMAN: I am not aware of any direction on this. The directions here are by the State Coordinator. I am not aware of any specific advice from Dr Nicola Spurrier or her team from the public health office to the Chief Psychiatrist, but he, like everyone else, needs to be mindful of the fact that there are social distancing proposals and there is also a desire to recognise that there are vulnerable groups in the community.

A psychiatrist who goes in and out of a facility, including the Chief Psychiatrist, exposed in the general community and going in and out to conduct inspections, and/or any of his team—this is Dr John Brayley's team—to do that work, including community visitors, has to also take into account the professional circumstances of the parties involved and whether they want to put themselves at risk or put someone else at risk. It is the same as for every other professional. I think everyone is conscious of the fact that our health workers are right at the front line—ambulance drivers, nurses and doctors—and their views need to be taken into account as well in relation to this. They do not want to be either more vulnerable themselves or in a position where they think they might be transmitting a condition, so we have special arrangements for that type of scenario.

Similarly, with the Community Visitor Scheme and professional persons, such as the Chief Psychiatrist, we need to take into account that they are moving out of the community and into an area of high-risk residence: disability, mental health and aged care. These are people, such as guardians and a lot of our commissioners, who have inspection roles in prisons. They are another big cohort of people who are vulnerable.

I say all this because we must distinguish between the tension of allowing somebody who understands the risk who wants to go and see their mother or father in an aged-care home and the distress of their relative if they do not at least have some contact. On public health advice, limited visits by relatives can occur. I do not think we can compare that scenario at all. We are talking about professional visits to do an important job. We are talking about how we balance the tension between not leaving people in an aged-care home in distress, who might have ordinarily had a child, a son or daughter, come and feed them every day and having them be able to see them.

This is the sort of balancing act that has to be done, but I think they are two entirely different scenarios. In this regard, through this legislative reform we are trying to achieve a model of continued assessment and a process that ensures the integrity and protection of the system and those who might be concerned against the desire for relatives to stay in contact with those in an aged-care home. I see them as quite different.

I think everybody agrees. A one-to-one inspection is a better idea. Attendance without notice is a pretty good idea, and we have a lot of that in aged care. In fact, I think that our Premier this week is going to be writing to the Prime Minister about some of the concerns he has about the idea that there is a relaxation of attending without notice to premises because relatives, unsurprisingly, are concerned that they do not see their relative all the time, especially if they had daily visits, and they are worried of course for their protection.

These are things we have to balance and these are things the State Coordinator sets the rules on using the advice of experts such as Dr Spurrier. We have taken her advice, too, and that of the Chief Psychiatrist. To reinforce the community visitor situation I have spoken about, which, as I say, is at their risk, aside from the Principal Community Visitor they are all volunteers. Of course, if they are over a certain age group, they are maybe even more vulnerable—retirees in the at-risk category due to their age, just to reinforce that. The expert is telling me that.

Mr PICTON: Out of that, I think there was a confirmation that the Chief Public Health Officer has provided some advice on this, but at the very least it seemed clear that the Deputy Premier is saying that the Premier is going to be raising concerns at the national level about a reduction in in-person inspections of aged-care facilities without notice, but at the same time you are proposing this legislation, which would reduce in-person inspections of your state mental health facilities by the Chief Psychiatrist and have them as video inspections. That seems completely different and completely inconsistent.

The other thing that the Attorney was saying in her lecture was that the concern with Chief Psychiatrist inspectors is that you have people from the community going into these hospitals and other areas and that it might be higher risk. Today, we had the health minister and the Premier come from the community to go visit hospital wards. They did the same thing on the weekend. They went from the community to visit hospital wards.

So it is okay for politicians to go from the community to go visit hospital wards when it is for a TV opportunity, but it is not okay for that to happen when it is a Chief Psychiatrist or the Chief Psychiatrist delegate inspecting mental health facilities in hospitals or other state-run facilities. There seems to be a significant contradiction there.

The Hon. V.A. CHAPMAN: Just to correct one piece of information which was obviously misunderstood: this is not an issue at the national aged-care level of video or in-person inspections. I was highlighting that the issue of without-notice inspections has come to national attention and I was adding that to the mix, but I am sorry if that was misunderstood by the member.

In relation to what I would call a disgraceful assertion that the process of hospital visitations, which has been approved by the Chief Public Health Officer, to allegedly support the selfish intentions of MPs, I think that is scurrilous and disgraceful. Of course there are differences between some attendances.

The Chief Psychiatrist has made a determination on this particular issue that his workers who undertake this job and who are in a vulnerable category, and the Principal Community Visitor and his or her—the acting Public Advocate is currently a her—people in this category, ought not be in that risk, and we respect that. They have taken their advice on it. Given that the people they are visiting are over a certain age or in a vulnerable health situation, it is even more important.

For some members who are interested in those who are in circumstances of essential confinement due to their disability, this is even more important. We have special rules under the current act to deal with and help people of all ages with a disability who are currently being kept separate from others because they do not necessarily understand the importance of social distancing. They want to hug people, whether that is a person who looks after them or a co-resident. This is the real and pressing situation for people who work in this field.

The inspectors in this field have said to us, 'This is what we are facing; these are the tensions that we are trying to marry up. We have taken advice and we are giving you advice now,' which we have translated into this legislation. We would hope that members of the opposition would see the benefit of supporting it. I am further advised it is also about the potential risk for inspectors who go into one hospital and then to another and carrying that infection. That was a specific concern raised by the Chief Psychiatrist.

Ms COOK: In terms of community visitors, we have seen in recent times the removal of their capacity to visit many people with a disability living in organisations that are operated by NGOs under the NDIS. The assertion being made is that the NDIS Quality and Safeguards Commission can take on that role. Where does that interface with this legislation, in terms of those visits and safeguarding those people with a disability?

The Hon. V.A. CHAPMAN: This legislation does not interfere with the national body and their role. The principal legislation passed a couple of weeks ago sets out a regime which is under the supervision of guidelines set by Professor Bruggeman, who we have appointed to be responsible for this area. The legislation essentially appointed the Public Advocate (as the current Acting Principal Community Visitor) and her team to be able to be able to conduct inspections in relation to that group.

With that legislation, we introduced the capacity to be able to introduce, essentially, restraining practices—I do not mean by being shackled or anything of that nature, but by being isolated or separated—to manage the social distancing issue. We had that debate a couple of weeks ago. With that, to make absolutely sure that we have extra protection around that new capacity for homes to be able do that, we have set out a whole lot of rules to go with it and a process under the Public Advocate, as the acting principal registrar, to do just that.

There is some reduction, because some of the options programs, as I understand it, are currently shut down. One of the difficulties in the disability area at the moment is that they do not have the same day activities that they used to enjoy and they are at home and missing out on a lot. There are probably less touch points of inspection as a result of the current COVID situation. That is not ideal, but that is not because they are operating unsupervised, it is because they are not operating at all.

Ms COOK: In regard to the consultation around this particular bill, you talked about people you had spoken with, for example the Law Society and others. Has there been any consultation with people with lived experience, consumers or clients, around this particular section that pertains to community visitors and the Chief Psychiatrist and their feelings in regard to how this has been undertaken?

The Hon. V.A. CHAPMAN: In relation to this provision, which relates to the inspection process, no. We have talked to the parties who undertake this role. It has come to us from the Chief Psychiatrist to be able to manage what is a practical thing that he has identified and the risk of his teams, and obviously the community visitors as well—certainly the Public Advocate has been spoken to—to work out how we can fit around this. There was a lot broader consultation over the original legislation, which relate to the disability generally, that is to deal with the special new circumstances, that the residential facility manager would have the capacity to have certain isolation processes in place.

Ms COOK: Broadly, in terms of the discussion around the community visitor and the change in their role, has the Attorney considered at all looking at the parameters of the regulations to allow that community visitor to visit all people with a disability, such as how Victoria has undertaken changes to their regulations, so that they are not obstructed from visiting people in NGO-operated organisations?

The Hon. V.A. CHAPMAN: Under this legislation we have not proposed to grant an expansion of who this is to apply to. It may be a good idea. I think I have said this from the outset: I have been a fairly ruthless gatekeeper on this. I did not want everybody just lining up saying, 'Look, it is COVID, so here's a chance for me to slip this through.' That is not acceptable.

If we are going to have a change of the substantive law, for example, increase massively the application of a particular service, then that is something which, in my personal view, needs to have full consultation, a bit like the mortgages with banks. Banks might think it is a great idea and it might end up being a good idea, but I am not going to push it through just because it is a convenience. I wanted generally to be able to come to the parliament and say, 'These are matters that need to have early attention. These are the experts sitting around them who have identified problems and this is one of them.'

Clause as amended passed.

Clauses 6 and 7 passed.

Clause 8.

Ms BEDFORD: Can the minister confirm that the Crown development process can be used to sponsor private sector development proposals?

The Hon. V.A. CHAPMAN: I am sorry, could you ask the question again? I was looking at the Aboriginal parliamentary committee—

Ms BEDFORD: My understanding is that clause 8 refers to an amendment to schedule 2, which is the temporary modification of particular state laws; is that correct?

The Hon. V.A. CHAPMAN: It does. I am sorry; I was just on the wrong page of it. It is a long clause.

Ms BEDFORD: My question is: can the Attorney confirm if the Crown development process can be used to sponsor private sector development proposals?

The Hon. V.A. CHAPMAN: Chairman, I am going to ask the Minister for Planning to step in to answer any questions on this because he has his adviser here now. He might be able to give a more detailed answer to that question for you. I will just get the bill open again for him.

The CHAIR: The Minister for Planning has the call.

The Hon. S.K. KNOLL: Crown developments done by government are where we are building public infrastructure. Where we have private sector developments, they still have to be public infrastructure. We get asked from time to time to sponsor public infrastructure related works as a Crown-sponsored development.

If somebody wants to build some sort of residential high-rise tower or something, that is not public infrastructure. That is not something you would use for a Crown development process. For instance, a planning application in relation to the interconnector, which would be built by private sector proponents, is something that we could consider as a Crown-sponsored development, or port infrastructure where a private port operator is building it, but it has to be in relation to public infrastructure.

Ms BEDFORD: Would the effect of this measure, which would exclude councils from the operation of section 49 of the Development Act, as well as the cognate amendment to the Planning, Development and Infrastructure Act be to put developments approved at risk of later challenge?

The Hon. S.K. KNOLL: The answer is no. That is why parliament and this legislation would reign supreme. If we decide that this is what we want to do, then the answer is no. To put it in context for you, member for Florey, at the moment, any project that is a Crown-sponsored development over $4 million goes off to council for a referral. Under the new PDI Act, that threshold goes up to $10 million. That legislation already passed in 2016. It is due to come into place whenever the phases turn on for the new code.

We have turned on phase 1, but phase 1 is in the outback areas where there are no councils, so there is no referral anyway. For instance, we are on track to turn on phase 2 in July. This measure that we are seeking to do now would come into place at that point for phase 2 anyway, and when we turn on phase 3, this will come in anyway. All we are doing is bringing forward something that is going to happen under the PDI Act anyway once the code is turned on for those areas.

Ms BEDFORD: Noting the minister's advice that the Law Society was provided a copy of this bill on Friday, why did the government not consult with the Local Government Association on this measure until this morning?

The Hon. S.K. KNOLL: Member for Florey, for the measures that we are seeking to progress, these things are happening quite in real time. When people get consulted on these things is something that happens in real time. What I would say is that this is not a new measure. This is not something that councils have not already had to grapple with. This is merely a timing change and one that was going to come into place anyway.

In the alternative, member for Florey, for Crown-sponsored development and in practical application—the things we are talking about here are really education projects. I think there are a few performing arts projects and there may be a couple of other things in there. All it is seeking to do is to bring forward by up to two months the speed at which we can put these projects into play.

These projects are needed and warranted. We need them as early as we can for stimulus, and they are not the kinds of projects that people are going to object to. In fact, a lot of the commentary by members in this chamber on the other side has been, 'Hurry up and get them done more quickly.' As I said, these are not controversial projects; they are ones that are necessary and ones that we believe we can get delivered more quickly through this to put those jobs into the community more quickly.

Ms BEDFORD: Supplementary to that: the nub of my question is if it was provided to the Law Society, why could it not have been provided to the Local Government Association on Friday? It has nothing to do with all of that; it is a matter of timing.

The Hon. S.K. KNOLL: I refer the member to my previous answer.

Sitting extended beyond 18:00 on motion of Hon. S.K. Knoll.

Mr PICTON: While we are planning things, can the minister outline how much time is actually going to be saved by these proposals?

The Hon. S.K. KNOLL: Two months.

Mr PICTON: Can the minister outline what examples they will be used for? It sounded like the minister already had a list of the projects he is intending to use this process and clause for. Can he either read them in or provide them between the houses?

The Hon. S.K. KNOLL: There is no list, but it is essentially every previously announced education project that is between $4 million and $10 million.

Mr PICTON: Well, I would presume that there would be a list of those that you could provide.

The Hon. S.K. KNOLL: I have not been provided a list.

Mr PICTON: What internal processes could you speed up at your end rather than or in addition to going through this step? I guess we do not want to have this whole area of consultation taken out but still significant delays happening at the council end. There is already significant concern in the community that a lot of these stimulus projects have been delayed and that not much has happened over the past few months. What action is being taken at your end to actually speed up the internal processes?

The Hon. S.K. KNOLL: Actually, there has been a whole series of things being done, though not necessarily in the planning space, because we move as quickly as we can within the department. We have moved to earlier contractor involvement and managing contractor models under the procurement process to get those works procured more quickly. That means that we are able to undertake partial designs and then have those designs moved across into that manager-contractor model. We also have explored a whole series of other options in relation to this. A number of these projects are being undertaken under modular construction models, so that we can get them done more quickly.

We have also undertaken steps with the Public Works Committee to ensure that things move smoothly through the Public Works Committee process. At this point, I would like to give my thanks to that committee for sitting as often as they need to. If you look at Thursday's committee business, I think we have 20 different reports to consider. There is a whole series of steps that we have done, and it is an end-to-end thing, rather than just planning, to get these projects out of the ground as soon as possible.

The Hon. A. KOUTSANTONIS: Will the referral to Public Works remain at $4 million?

The Hon. S.K. KNOLL: Yes. That is a different act, but, yes, it will remain at $4 million.

The Hon. A. KOUTSANTONIS: Are we on electricity now? This is still clause 8.

The CHAIR: We are. We are on clause 8, and that is part of part 2A under clause 8.

The Hon. A. KOUTSANTONIS: My question to the minister is: is the government's modification of the national electricity act supported by the Australian Energy Market Commission?

The Hon. V.A. CHAPMAN: Just so that I am clear about this, Mr Chairman, have we completely dealt with this section?

The CHAIR: No, we are on clause 8.

The Hon. V.A. CHAPMAN: We are now on page 11, so we are skipping over children; is that right? There are no questions on children?

Ms Stinson: Yes, I have some questions on that.

The CHAIR: Member for Badcoe. I will come back to you, Member for West Torrens.

The Hon. A. Koutsantonis: It's all in one clause, sir.

The CHAIR: Yes, but in an ideal world, which we are trying to live in, we should do this in an orderly fashion. So we might come back to that, member for West Torrens. Member for Badcoe, you have a question on 25A—Removal of children.

Ms STINSON: I do, sir. My question is: who asked for this? Was there any submission made to government by people or organisations or agencies within government, and what was the argument put forward by those individuals or agencies as to why this is actually necessary?

The Hon. V.A. CHAPMAN: The State Coordinator, who is the police commissioner, is the person who requested this. It adds to a list of clarifications in relation to authorised officers, who are police officers under the act or such other persons authorised by the police commissioner. I think the member also asked, during the course of consultation today at least, to request whether there are any other authorised officers. That inquiry has been made to the State Coordinator. My understanding is that it has, but he does not propose to disclose who they are, and he has advised that he is entitled to not disclose who they are.

Ms Stinson: Who the other authorised officers are?

The Hon. V.A. CHAPMAN: Any other authorised officers, but largely they are the police force. He has power to bring in who he might think is necessary. For example, he can bring in an authorised person in relation to health, or if it is an environmental problem he might want to bring in people who are inspectors under the Landscape SA Act. There could be lots of different people.

Notwithstanding the information I was provided earlier, someone else in SAPOL has given me the following information, so I am assuming that it is both accurate and able to be given to you; I am advised that is the case. This information simply describes what is in the act, though, rather than who he might have appointed as an authorised officer outside of a police officer, but that is entirely under the Emergency Management Act.

They are police officers, chief officers and executives of control agencies, and their deputies; state managers of functional support groups, and their deputies; and nominated Communicable Disease Control Branch staff for the purposes of, and limited to, COVID-19 operations only. That is in the act. That is SAPOL's advice, confirming who they understand the people to be who are able to do that, and that includes, as I said, inspectors relating to an environmental disaster, for example. We are in a health disaster; we understand that.

As I understand it, police officers are all being given this responsibility, which is why he has asked for us in the principal act to clarify a number of the responsibilities and capacities of those police officers to impose the directions in relation to stopping someone at the border, identifying whether they have signed declarations, travelled interstate and been advised that they have to travel to their nearest hotel to do their two weeks' isolation. All those are directions that need to be imposed but also supervised to ensure that they are actually operational. I hope that covers that matter.

Ms STINSON: Not quite, so I have a supplementary. Am I to understand that the list that the Attorney just read out is a list of people the commissioner has now declared as authorised officers? If so, how is that made known publicly? Is there a process for that to be declared through the Gazette, for example? How is the public to be informed of who is an authorised officer and who is not? Is it that this is a class of persons that is declared as authorised officers, or are there individuals who need to be named by the commissioner in order for them to become authorised officers? Once again, how is it that the public might be informed as to who is appointed as an authorised officer?

Also, I wondered if the Attorney could clarify: I understood from what the Attorney just said that there was some suggestion that the commissioner does not need to disclose who the authorised officers are. It seems an unusual approach that the commissioner would be able to appoint people under the act but actively conceal that. I wonder where that power is, if I have correctly understood that the commissioner does have the power to appoint authorised officers but not reveal who they are.

The Hon. V.A. CHAPMAN: The inquiry made is: can a list of who has been appointed by the State Coordinator be provided? The response has come from SAPOL that 'The authorised officers per the Emergency Management Act are'. It does not specify in the response whether those groups have been appointed. It is possible to interpret that either way, but they are able to be appointed under the state Emergency Management Act.

My understanding of the inquiry, when the member made it earlier today, was in regard to who they are. The police commissioner quite rightly will not give the names and addresses of people who are authorised officers. I think that is for obvious reasons, so I do not think it is unusual at all. What is important, though, is who might else be employed for the purposes of acting as an authorised officer.

It is important to remember that we have lots of authorised officers under our laws. We have a whole lot of people who are authorised officers in hotels when we deal with the management of the consumption of liquor or exclusion of minors, etc. We have authorised persons in environmental law, in health law so, as per this general description here under the state Emergency Management Act, the state commissioner can bring these people into play if he thinks that may be of assistance. At this stage, we are advised, that is the information we have concerning your request from earlier this afternoon, and that is the best I can do.

Ms STINSON: It would be helpful if the Attorney could come back to us in between the houses with some information about whether that listed group of classes of persons has actually been declared or not, and I would appreciate that. Your office has been helpful in answering some of my questions in relation to the necessity for this, but I wonder if the Attorney could provide some detail about how this amendment relating to the removal of children differs from the powers that already exist under the Emergency Management Act.

Certainly my reading of it is that this could already be done under the previous Emergency Management Act and that police officers are actually protected because there is a clause that states that they would not be committing an—

The Hon. V.A. Chapman interjecting:

Ms STINSON: Yes, the Attorney points out that there is an exemption. I would like the Attorney to explain why this is necessary and what the problem is that this is actually remedying. To me it seems that police officers were adequately covered under the previous incarnation of the Emergency Management Act.

The Hon. V.A. CHAPMAN: I hope I can be helpful in just understanding why this has come about. Firstly, the State Coordinator has asked for it; secondly, unsurprisingly when these things start to become operational some of the weaknesses start to be exposed, so it is reasonable for the State Coordinator to get advice from the Crown Solicitor's Office if this needs to be clarified. My recollection on this process was that, as the member may well be aware, under our child protection law there are certain powers for children to be removed from a guardian—well, usually someone who is not actually acting appropriately as a guardian or not adequately in any event.

For a police officer to act under the child protection law to simply take a child away and place it with child protection agencies—and they are the enforcing body—there is a process they have to go through. Some of that process to remove a child from a parent involves a police officer getting approval from a superintendent, for example. It is the whole issue of the rank of the police officers. I know that was under consideration as to whether it was impeded in the circumstances where they are not actually going to remove a child necessarily, to take them away from the custody of their parent, but they do need to be able to place them somewhere if there is a breach.

For example, a police officer attends a property where there are more than the 10 people who are supposed to be there. There is a party going on and children might be present, and it is in breach of the State Coordinator's direction. The police say, 'Okay, everybody out. Get to your own properties,' or may take them and obviously prosecute them for breaches of the direction or give them on-the-spot fines or whatever—but children are in that scenario.

To enable them to carry out their role to supervise the compliance of the direction—namely, separate these people and put them back in their own places, require them to go and stay in a residence—may mean taking these children for the purposes of sending them home to their actual residences, but it does not necessarily mean they are acting under child protection law to remove a child from a parent. The parents many not even be at the party. Do you see what I mean?

The question has arisen: how do we deal with children in this situation? The authorising officers, police officers, need to be able to say, 'We need to be able to act here because we can't leave them in the house because there will be a breach of the State Coordinator's direction. We need to be able to manage this somehow.' As the member probably knows, there is usually a general protocol with these things where child welfare or child protection agencies are contacted. Sometimes, say, if it is an Indigenous child who is in custody with police, then there is assistance from ALRM for example, to assist if they have been involved in any charges.

There are agencies out there to assist in that, and there are even some private NGOs that help with children who are at large on the streets, who might be in a situation where they need to be sent back home. However, the police job here is to deal with the compliance under the state emergency act, not under child protection. That is why we need to fix it up for them to have the power there.

Ms STINSON: I am not sure that the Attorney has really addressed what I am getting at with this question. It is my understanding from the briefings that I have had that this amendment is not to do with children in care in any sort of way; it is about all children—not just children in care. I appreciate the example that you are giving in relation to the process for children in care.

The Hon. V.A. Chapman interjecting:

Ms STINSON: Well, that was about children under guardianship who were being taken for their own safety. I am happy to—

The Hon. V.A. CHAPMAN: If I can just make it clear—

Ms STINSON: I do not really want to give up my question here.

The CHAIR: One at a time. The Attorney can sit. You are seeking some clarification?

Ms STINSON: I am.

The CHAIR: Is the Attorney clear on what you are seeking clarification on?

Ms STINSON: I do not think so because I have not finished explaining. What I am trying to understand is, if this clause pertains to the removal of children of any type, whether in guardianship or not, which is the advice that your office and others have given me, I understand that under the Emergency Management Act it was already possible for a police officer of any rank to remove a child due to COVID, for example.

Why is it that this amendment is required if, under the previous Emergency Management Act, it was already possible for police officers to do that and they were not at risk of prosecution? Is there some sort of flaw or inadequacy in the Emergency Management Act that exists currently that requires this change? I cannot see how or why this is needed because police already had the power and would not have faced prosecution and, from what I can tell, the Children and Young People (Safety) Act does not have a great deal to do with this.

The Hon. V.A. CHAPMAN: In relation to the last question, you are absolutely right. I thought I had made it clear but, if I have not, this is not a child protection measure. This is a measure of how police officers as the authorised officers deal with children that they come across in a circumstance where they are trying to implement the emergency measure directions.

Ms STINSON: So why is it needed?

The Hon. V.A. CHAPMAN: Because, although the member for Badcoe thinks she understands that the current state Emergency Management Act should be adequate to cover police officers as authorised under that act, that is not the advice that we have received. In the course of that discussion, the weakness has been identified in a number of areas, and last time we were here we sorted out most of them.

This is another one where the Crown Solicitor has given advice to the State Coordinator, and the State Coordinator has requested that we sort it out. So people like you or me or anyone else can read these pieces of legislation and think, 'Okay, that's good enough. That seems fine.' Frankly, when we discussed this legislation, and I was here at the time to actually make it, we were all in a space, I suppose, of not really knowing how this was going to be played out.

I am not being critical of the former government bringing to the house a bill at the time that may be seen now to be a bit inadequate because it is the first time, and we are going through it. When the police commissioner thought there was a bit of a weakness, he thought, 'I had better go and get advice,' which he is entitled to.

Ms Stinson interjecting:

The Hon. V.A. CHAPMAN: The weakness is the definition of the powers of the authorised officer to deal with a child to remove them. That is the weakness that has been identified by the Crown Solicitor's Office; that is, it is possible that it is adequate power but more likely not, and therefore we need to be able to sort that out. So the police commissioner comes to us and says, 'Is that right?' We have all these other laws over here. You cannot just go and pick up a child and take it, even if you are a police officer, but there is a special provision when you are trying to carry out lawful conduct, namely, the directions of the State Coordinator.

On the face of it, that looks like it is enough, but the Crown Solicitor advises the State Coordinator and the State Coordinator says to us, 'I am concerned. I want my officers completely protected on this. I want them to have lawful power and protection,' and that is what we are doing here to make sure they have it.

The CHAIR: Member for Badcoe, you have asked two questions and sought clarification on two further occasions, so this will be your final question.

Ms STINSON: I actually do not need another question, but I only request that the Attorney might provide in writing the nature of the shortcoming that this is trying to address. I do not think the Attorney has really pinpointed what it is—the weakness that she speaks of. I am more than happy for the Attorney to seek further advice or provide that in writing between the houses, because I have asked the question a few times. I do not think the Attorney has been able to actually point to what the weakness is that this addresses, other than to say that there is a weakness that the Crown has identified.

The Hon. V.A. CHAPMAN: Let me put it this way. The member well knows that I am certainly not in a position to hand over legal advice given to the State Coordinator. I am not going to be doing that, and she knows full well the rules in relation to that. If she does not understand that the statutory responsibility and powers of somebody who is an authorised officer need to be clear, especially when they hit up against other legislation which protects the interests mainly of parents, then I cannot help her any further.

But I will say this: if the State Coordinator says to me, 'I'm not sure if my authorised officers are going to be fully protected in this situation. I've got advice on it; there is a weakness and it's not crystal clear and therefore I don't want them to be in that situation,' then we have acted on it. The member can make whatever inquiries she wishes. She can go to the Law Society, she can go to the police commissioner himself and take advice, but I have indicated what the government's position is.

We are acting on advice that we have received and on the request of the State Coordinator to make this crystal clear. If she looks at the previous act we passed a couple of weeks ago, she will see a whole list of other things which on the face of it you would think, 'They probably already have the power to go and confiscate that or to cause damage to property, to enter it if it is necessary to prevent a prohibited group from meeting in a gathering,' but the reality is he wants this to be very clear, and we are in new ground, and we want it to be clear for him.

I would have thought the member would also want to make sure that authorised officers who have extraordinary powers to implement the directions of the commissioner are protected. Where clauses are written for indemnity or protection where people act in good faith and all those things, if there is a weakness there, this is why the remedy is there, where it provides:

(1) Without derogating from section 25, an authorised officer may, for the purpose of ensuring compliance with any direction…remove a child from any premises, place, vehicle or vessel to a place of residence of the child or to a hospital or quarantine facility…

That is what this is to make crystal clear—'and use such force as is reasonably necessary'. These are the sorts of tensions that are always raised in these situations. It is not ideal to take a child forcefully out of a car or out of a house and take them to a hospital or a home, especially if it is in the envelope of it being strongly opposed, for example, by a parent or someone who is purporting to be their guardian. The State Coordinator has asked us for this; we think it is reasonable that his officers are protected, clearly, and that is what this clause is in here for.

The Hon. A. KOUTSANTONIS: My question is to the minister regarding 15B—Regulations varying rules under the National Electricity Law. Has the minister submitted a rule change? Has the minister submitted to the Australian Energy Market Commission prior to today or to the COAG Energy Council a rule change to deal with the changes being contemplated today?

The Hon. D.C. VAN HOLST PELLEKAAN: A letter has gone to the COAG Energy Council ministers, my colleagues around that, seeking their support for the rule change. I understand that is the normal process.

The Hon. A. KOUTSANTONIS: My question is not about whether or not you have begun the process now during this legislation. What I am saying is that, since 2018 until now, net negative demand has been an issue that you have spoken about previously. What I am asking is: before this legislation was introduced, had you sought a rule change in the Australian Energy Market Commission or submitted to the COAG Energy Council support for a rule change to allow you to direct SA Power Networks to act in the way you wish to direct them?

The Hon. D.C. VAN HOLST PELLEKAAN: First of all, discussions at COAG, as you would understand, are not necessarily for sharing in this forum. It is a topic that has been raised, though, let me say, by South Australia, and I will leave that at that. I am advised also, though, that the changes to the Emergency Management Act to deal with this is not something that would be dealt with by COAG or necessarily by the NEL.

So it is a topic that they are aware of, you are quite right. I have talked about it many times. It is something that we are addressing in several different ways, but I am advised that, with regard to this bill and the connection that this bill has to the Emergency Management Act, that is actually not a COAG issue.

The Hon. A. KOUTSANTONIS: If it is not a COAG issue, why have you written to the COAG Energy Council seeking their consent?

The Hon. D.C. VAN HOLST PELLEKAAN: That is specifically to do with the amendment put forward by this COVID bill, this temporary COVID bill.

The Hon. A. KOUTSANTONIS: So your response to the house is: it is not a matter for COAG to consider, yet you have written to COAG to seek their consent. I point out to the minister that those two statements are contradictory. I accept—

The Hon. D.C. van Holst Pellekaan: That is not true.

The Hon. A. KOUTSANTONIS: Okay, so they are not contradictory?

The Hon. D.C. van Holst Pellekaan: Correct.

The Hon. A. KOUTSANTONIS: You confirmed to the house that you have written to the COAG Energy Council seeking their consent—

The Hon. V.A. Chapman: No; 'support'.

The Hon. A. KOUTSANTONIS: —okay—support for this change that you are introducing now arbitrarily, but it is not a matter for the council to consider previously? Okay, we will just accept that the minister has somehow legitimised that in his own mind. My next question is: who initiated this change? Was it the department or had SA Power Networks written to the minister over the preceding two years since he has been in office advocating for this change to be made?

The Hon. D.C. VAN HOLST PELLEKAAN: Well, there is a bit in that. First of all, it is not at all contradictory to have said to the shadow and to this chamber that it is appropriate to seek COAG energy ministers' support for the changes in this COVID bill, but it is not necessary to seek their support for changes to the South Australian Emergency Management Act. It is very straightforward; no contradiction. With regard to these changes that are sought, they have not come from SAPN; they have come from the department and my office working collaboratively together.

The Hon. A. KOUTSANTONIS: Can the minister explain why his department has recommended and why he supports the ability to instruct SA Power Networks, rather than making any augmentations to the grid or any other expense, that they are simply able to legally receive an instruction from you, through the Chair obviously, to disconnect generators that I understand exceed 200 kilowatts rather than any other augmentation? Can you explain to the house your process of thinking why that would be a more reasonable path than any other form of action?

The Hon. D.C. VAN HOLST PELLEKAAN: Yes, and the answer is all within the fact that we are dealing with this COVID omnibus bill. We are dealing with a worldwide pandemic. We are trying to do things extremely quickly, extremely sensibly, so that we can deal with the things that might come to us more quickly than they otherwise would as a result of the pandemic. Of course, the pandemic is affecting the whole world but in this context has an impact upon Victoria, New South Wales, Tasmania, Queensland and the states that we are connected to as part of the NEM.

We are doing things rapidly and appropriately as part of this COVID bill. It does not mean that we are not trying to make a whole range of other improvements in regard to this issue, but they are actually separate pathways. As the member from West Torrens would know, we can ask for derogations for South Australia but they take eight weeks plus to come into effect. We do not have that sort of time in regard to the potential outcomes in this global pandemic.

We are not putting things in place in this COVID bill that we want to use or we intend to use: we are putting things into this bill in case we have to use them. It is much the same parallel as the discussion between the Attorney-General and the member for Badcoe in regard to police officers and their rights or responsibilities in regard to accessing children, if they think that is appropriate. We are not putting things in this bill that we want to do or we intend to do but we are putting them in as safeguards.

As the Attorney-General mentioned, they are things that the police commissioner supports as well because he sees things that just might happen being worth putting in this bill as opposed to the things that we want to do and intend to do in the mainstream course of business, which are also time sensitive, pressing and, in some cases, urgent, but not as urgent as we see the protections that we need to put in place as an insurance measure, essentially, with the COVID bill.

The Hon. A. KOUTSANTONIS: That was a very strange answer. Perhaps the minister should watch that back later on.

The Hon. D.C. van Holst Pellekaan: Perhaps what?

The Hon. A. KOUTSANTONIS: Perhaps you should watch it back later on—re-watch it.

The Hon. D.C. van Holst Pellekaan: Watch my back?

The Hon. A. KOUTSANTONIS: No, re-watch it back.

The CHAIR: Just ask the question, please, member for West Torrens.

The Hon. A. KOUTSANTONIS: Yes, I will. Given the minister just told the house that the police commissioner recommended these changes, but earlier told us—

Members interjecting:

The Hon. A. KOUTSANTONIS: Okay, you did not say that. Okay, fair enough.

The CHAIR: Let's not argue about what he might have said.

The Hon. A. KOUTSANTONIS: Yes, we should not argue about that because—

The CHAIR: You have the opportunity—

The Hon. A. KOUTSANTONIS: Yes, I do.

The CHAIR: —to ask a question.

The Hon. A. KOUTSANTONIS: How many individuals have a solar array above 200 kilowatts in South Australia?

The Hon. D.C. VAN HOLST PELLEKAAN: We do not have that number but the cumulative total, I am advised, is about 50 megawatts.

The Hon. A. KOUTSANTONIS: I am just trying to understand this. Yesterday, in the briefing we were told that, although 200 kilowatts is not specified in the legislation, the government are saying that the minister wants the ability to be able to direct SA Power Networks to disconnect or not allow a dispatch by a participant who has more than 200 kilowatts or more. They will be defined as a market participant and they will be not allowed to dispatch. When I asked how many of them there are, the minister does not know. Perhaps he can get me that between the houses so I can know exactly how many individual generators we are talking about.

Is this a cumulative amount? That is, could a series of households who have five to 10 kilowatts on their roof be aggregated to 200 kilowatts and that block be cut off? The minister is shaking his head, saying no. Are these commercial applications? Does this in any way impact household rooftop solar?

The Hon. D.C. VAN HOLST PELLEKAAN: Member for West Torrens, the reason that the focus is on the total aggregated capacity of these generators being, I am advised, an estimated 50 megawatts, is that it is actually that capacity you need to be able to manage. It is not so much a matter of how many phone calls, emails, how many directions to have to give. It is actually about the capacity to productively and positively impact on the challenge that you have.

With regard to your question about whether there is any way that households could be aggregated up into a 200-kilowatt single unit, I am advised absolutely not, and I can tell you that from my perspective that was never ever the intention of it.

The Hon. A. KOUTSANTONIS: Within the 50 megawatts—

The CHAIR: Member for West Torrens, before you ask that question, I know we discussed as a committee back on clause 1 that you would have extra opportunity during this time due to the arrangements we have here. You have now asked six questions.

The Hon. A. KOUTSANTONIS: You are excellent, sir. You are a fine Chair.

The CHAIR: I am being very generous today and I am considering how much more generous I will be. I am just reminding you that you have had six and I may pull it up at some point. The member for Kaurna or the member for Lee may have a question.

The Hon. A. KOUTSANTONIS: Exactly, sir. Of the 50 megawatts, none of that 50 megawatts that the minister spoke about was household rooftop solar.

The Hon. D.C. VAN HOLST PELLEKAAN: As I said before very clearly, I am advised that the answer to that is no. I can tell you for sure that my intention is no. I have also just been advised that perhaps somewhere there might be a massive household or somebody with a farm. There could be a very large generator out there that seemingly, incongruously, could be labelled a household as well, but beyond that no.

The Hon. S.C. MULLIGHAN: Perhaps for my benefit, because I do not have such an intricate understanding of these matters as you and the member for West Torrens, looking at new section 15B, which is being inserted, subsection (1) provides:

(1) The Governor may, for the purpose of protecting the reliability and security of the South Australian power system, make regulations modifying the operation of the rules…

Just for my benefit could you outline the range of modifications that could be contemplated here?

The Hon. D.C. VAN HOLST PELLEKAAN: Yes, member for Lee. I suspect that, rather than the range, you are probably more interested in examples. Keep in mind that this is all in the context of this COVID bill, which is temporary. None of us knows how long it will go for—all of us hope it will be shorter rather than longer—but it is directly linked to the health emergency declaration. What we are looking at is the capacity to control, if necessary, supply and demand in a way that is different from the way we have done it before.

I know the member for West Torrens will certainly remember bringing in ministerial powers in a declared energy emergency previously. If you go back a few years or so, the broad concept of an energy emergency is that you have high demand and not enough supply entering the market and so you are trying to bridge that gap by requiring more supply to enter. That is a very simplistic way of describing it, but that is broadly what it was.

We now move forward to the last few years and into the future. Another type of energy emergency, which was not contemplated at that time, so is being contemplated and is in this bill, is not enough load to shed if you need to for control and stability of the market. The types of things that are imagined—and I will just read from this briefing note—are 'No specific required change of the National Electricity Rules has been identified at this time. The rules relating to emergency schemes such as automatic load shedding and protected events are, however, being analysed.'

The Hon. S.C. MULLIGHAN: In some of the discussion that has preceded my questions, I gather that there is a threshold here, and I think you have mentioned 50 megawatts or 50-megawatt hours. I think the member for West Torrens mentioned 200-kilowatt hours of load. People who have supplies into the market or supplies into the network or generation into the network above that threshold are the ones who might be able to be precluded from entering their electricity into the network. Just for my sake, what is that threshold and can you assure us that those who may be discharging lesser amounts of electricity into the network will not be affected by these measures?

The Hon. D.C. VAN HOLST PELLEKAAN: You have those numbers right. This applies to generators over 200-kilowatt hours. It is estimated that all of the generators in South Australia at the moment that fit that description come to an aggregated 50 megawatts of electricity, and that is the focus for us rather than the number of them that exist because we need to have a good idea of how much electricity we could direct to operate differently if necessary.

To the last part of your question—and I think I have answered this quite clearly before—there is no intention to have households affected by what we are doing with this COVID bill. It is not our intention. We are not looking to aggregate households into that number. As I said before, if there is one massive household out there that could somehow slip into that category, so be it, but there is no intention to do that.

I would add that, at the moment, we do not have the tools to do that anyway. We have the tools to do it with the over 200-kilowatt hour generators. This is about the authority. Even if you brought the authority, hypothetically, to those small generators, it is a really messy system to try to make it happen at the moment anyway. Lastly, these are not things we want to do. These are just powers that we believe would be useful if necessary in this current environment.

The Hon. S.C. MULLIGHAN: I appreciate that example. I think it is worth concentrating on that term 'intention' that the minister used. I appreciate that it is probably not his intention at all. It is likely not his intention at all because he, like me, like the member for West Torrens and probably the vast majority of the rest of us, if not all of us, would be alarmed if domestic residential solar installations, or perhaps small business solar installations, were able to be impacted by the use of these powers.

The examples I am thinking of with virtual power plant arrangements that people have entered into may effectively be grouped together, as the member for West Torrens was saying. You only have to read the Sunday Mail in particular to see the companies touting participation in those schemes to win business, or it may be that SA Power Networks approaches the government and says, 'We are having a particular problem and we have identified that there is a significant supply of electricity, say, in a postcode area.'

You only have to look at a Clean Energy Council website to see the amount of solar installed by postcode, which they publish on a regular basis. 'For that postcode or that suburb or suburbs within that postcode, we will effectively limit or stop accepting the amount of generated solar rooftop electricity.' That is really the core of the concern about this.

I realise you may not have the intention. It is the capacity for that power to be exercised in that way that I am seeking to understand because SAPN may approach you as minister and may make a case to you in the absence of alternatives that that is the action that needs taking and that would be of grave concern. So when I asked you for an assurance that it will not be for people below that threshold of 200 kilowatts or 200-kilowatt hours, whatever the right terminology is, it is really seeking that assurance. If you are able to assure us that it will not be exercised for installations or discharges below that threshold, where does that threshold find its existence, either in the bill, in the regulations or elsewhere?

The Hon. D.C. VAN HOLST PELLEKAAN: Again, there is a fair bit in that. I have been very clear about the authority that is in this bill and very clear about my intentions. I accept your concern. As you said, not one member of this chamber would be without constituents that have household solar. There is no intention to aggregate, even through a virtual power plant. Virtual power plants are actually about the aggregator having the opportunity to offer services and make money doing it that way.

It may well be that somebody who has signed up with a VPP could be actively engaged in the market, totally separate of what is going on here—nothing to do with this whatsoever. In answer to the question about where the 200 comes from—and I will be guided in case I go off track here—the 200 kilowatt hour capacity generator is when a lot of other technical obligations come along with the permission to actually operate. When you step into that level, then it is easier to use the authority that is coming here.

I would add to that the fact that under the existing Emergency Management Act, the minister broadly has that sort of authority to do those things that you are talking about anyway. We are not talking about that; we are talking about this COVID bill. Perhaps to give the member for Lee some comfort, it really has nothing to do with trying to work our way into households inappropriately. It is actually about the fact that there are some things that were quite rightly under the energy emergency bill that we discussed a while ago that are still right, but there are other authorities that we need looking into the future. It has been appropriate, with this temporary COVID bill, in dealing with the pandemic and some of the immediate risks, to say, 'We'll just insert those authorities into this now.'

When the pandemic is over, we will go back to the drawing board in terms of the things that are appropriate to do down the track. It requires an energy emergency to be declared. I would also say that as the responsible minister, if an energy emergency is declared I would, based on advice, do whatever necessary to try to keep the lights on, keep the voltage and frequency right, etc. I am sure the previous minister would also have done whatever was necessary to make sure that they were looking after the best interests of South Australians in those situations. I hope that gives the member some comfort. The comfort that he wants for his constituents is exactly the same comfort that I want for my constituents.

The last thing I would say to address the member's concerns is that, if hypothetically one of his constituents was concerned, in the midst of an energy emergency, about their solar being controlled in a way that they did not want it to be, if the authority is not used appropriately, their power is probably going to go out anyway. There is minimal risk to that household because this is all about actually trying to keep the lights on across the state.

The CHAIR: Lucky last, member for Lee.

The Hon. S.C. MULLIGHAN: Thank you; 3(c), I think this question—

The CHAIR: 3(c)?

The Hon. S.C. MULLIGHAN: Yes, or similar.

The CHAIR: Three and clarification.

The Hon. S.C. MULLIGHAN: Thank you. I appreciate the explanation by the minister. I do not doubt his intentions here. My final question might be perhaps better expressed to the Attorney, or maybe for the minister. I draw your attention to that very same spot that we are looking at—new section 15B(2). I presume this is the result of drafting advice from parliamentary counsel, but it states:

(2) Section 21 of the COVID-19 Emergency Response Act 2020 applies to a regulation made under this section as if it were a regulation made under the Act.

It just raised a query in my mind as to whether this means that this lives for a longer period of time because it is considered to be a regulation made under an alternative act rather than this act, which is time limited.

The Hon. D.C. VAN HOLST PELLEKAAN: No, member for Lee. This COVID omnibus bill, as we are calling it, is only in place while we are in the COVID emergency declaration. When that finishes, this omnibus bill ceases to have any effect. The next layer from that is even while it is in effect we would only use these powers if and when necessary within the pandemic because something has occurred that means it is necessary.

The Hon. G.G. BROCK: Other parts of the bill have a period of time in there: six months and so forth. Can this be included in this or can there be a time frame because there are other sections of the COVID emergency bill that say six months and then it has to come back?

The Hon. D.C. VAN HOLST PELLEKAAN: I am advised that the timing for the energy aspects of this bill are identical to the other aspects in regard to the six months. You are quite right to say that I have consistently said it is while the emergency declaration is in place. That is what I have in my mind. I am just assuming that if we are out of the COVID health emergency sooner than six months, this finishes. If it goes longer than six months, we will extend it. Six months is there because it was considered appropriate to put a stake in the ground. For practical purposes, we will all be doing whatever we need to for as long as the emergency is in place.

Clause passed.

Progress reported; committee to sit again.

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