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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-04 Daily Xml
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Motions

Development (Public Health Emergency) Variation Regulations

Ms BEDFORD (Florey) (11:28): I move:

That regulations made under the Planning, Development and Infrastructure Act 2016, entitled Development (Public Health Emergency) Variation Regulations, made on 9 April 2020 and laid on the table of this house on 28 April 2020, be disallowed.

The regulations were made by the Governor and published in the Government Gazette on 9 April. I am moving disallowance because the powers these regulations grant the minister are unnecessary, disproportionate and represent a significant threat to the proper operation of the state planning system. I think we have all been willing to give the government a fair amount of leeway in its response to the coronavirus-related public health emergency, but that does not mean the government necessarily always gets it right, and in this case I and many others believe that the government has it quite wrong.

Members will be aware of the ongoing disquiet that has characterised the rollout of planning reforms under the government's Planning, Development and Infrastructure Act, which was carried in the Fifty-Third Parliament before the last election. It is apparent the wheels have fallen off the government's planning reform agenda in a major way. Recently, this house considered a bill to delay implementation of the signature measure in the planning reform agenda, the state Planning and Design Code, after concerns were raised by councils, the development industry, planning professionals and members of the public.

At that time, I sought the house's support to move alternative amendments, but the government declined to take up this opportunity. As I said then, merely delaying the commencement of the code would not be enough to assuage the widespread community concern, frustration and now even anger evident in the past six months. It is all too clear that we need to go back to the drawing board.

The Planning, Development and Infrastructure Act as passed deviates from some of the recommendations of the Expert Panel on Planning Reform in several ways, which, while appearing minor, are in fact significant. I note recently that the former chair of the expert panel, Mr Brian Hayes QC, has expressed concern about the manner in which the code is being delivered. It is possible that tensions are playing a role in what appears to be ongoing disfunction in the minister's department, as reported by the media. Perhaps staff are trying to resolve inherent contradictions in the legislative framework.

When I last spoke, the minister's department had already experienced several high-profile departures from the planning reform team and, as of a few weeks or so ago, I have heard and seen more reports emerge which suggest an unhealthy culture within the department; no wonder, when the staff there continue to be put under pressure to resolve issues on the run which were inherently problematic while flaws in the legislation are left unaddressed by the parliament.

I have put this history on record because it is important context to understand why the regulations before us must be disallowed. These regulations purportedly relate to the COVID-19 emergency and it is true that some of the variation provisions in these regulations are directly relevant and, therefore, appropriate. For example, new regulation 3A authorises councils to fulfil obligations to move for the public to inspect planning documents by publication of them on their website instead of attending the council office personally.

Obviously, this is an appropriate measure while social distancing remains the advice of our public health authorities. Similarly, the ability not to hold public meetings set out in the changes to regulation 12 of the Development Regulations also seems to be an appropriate measure; however, the remainder of the regulations are inappropriate and should not be supported by this parliament. Under the name of COVID-19, the minister has been granted what are essentially unlimited powers to take development applications of any sort away from councils and have them approved centrally.

I see no circumstance in which this is justified by health advice, nor is it obvious why it would be justified as a stimulus measure. It is true the former government made regulations, now expired or revoked, to allow speedier development approvals in the context of the need for stimulus, but none of the former regulations were unlimited in the scope of development to which they apply, as these regulations are. They were confined in one way or another by quantitative standards, decision criteria or other safeguards against abuse. Even with these limitations, they were still controversial.

The current scheme of the Development Act, under which these new regulations are made, and of the Planning, Development and Infrastructure Act, which will in due course replace it, already provide a legitimate role for significant development to be assessed centrally; however, it should be done by regulation, not by ministerial decree. That means if there are fundamental objections, parliament—this chamber or the other place—can move a motion to disallow that measure.

The government may argue in opposing this motion that disallowance will force councils to return to holding public hearings and offer public inspection of planning documents, but there is a simple way to address this: remake the regulations with the objectionable parts removed. I have spoken with representatives of the Local Government Association and it is clear from their advice this solution would be satisfactory. Equally, it is clear any measures which involve further centralisation of planning powers is always a concern to local councils, as it should also be for this parliament.

We have seen attempts by the government to excise councils from key planning decisions under the cover of COVID-19, just as we have seen the government use COVID-19 to loosen shop trading hours against the clear will of this parliament. These development regulations are in the same vein: they cut out councils and, more importantly, they cut out parliament from having any say.

I have spoken before about the dangers of political shortcuts when it comes to proper democratic process. When you take a political shortcut, you will inevitably have a political headache one day. The recent GM crops legislation swept off the table in this house in April under a compromise deal no-one really seems to like is the most notorious example of political game playing in the term of this parliament and is the reason I have put forward a private member's bill to stop ministers from remaking regulations which have been disallowed sooner than six months from that date.

In my view and in that of many concerned South Australians outside this chamber, the regulations which this motion would disallow are another example of overreach and another example of political shortcuts and planning reforms being rammed through without the consent of the community we all come to this place to represent. I commend the motion to the house.

The Hon. S.K. KNOLL (Schubert—Minister for Transport, Infrastructure and Local Government, Minister for Planning) (11:34): I rise to oppose this motion. I am a little bit surprised and shocked by the speech that has just been given, especially as it relates to discourse in relation to how the department is operating and how it is going through what is the most comprehensive set of reforms to planning since the Development Act in 1993, a mammoth task which has been undertaken with the highest degree of professionalism and the highest degree of commitment towards the principal cause of improving the planning system for all parties.

To somehow use this disallowance motion speech to call that into question, I think is downright offensive, especially as it comes off the back of the speech by the member for West Torrens, who also tried to somehow suggest that elements of my department are committing maladministration whilst undertaking land acquisition. Both are without basis, both are without fact and both were given here in this chamber where recourse is not available to the parties who are being slurred, and I think that is something that we need to reflect on. I am happy to stand up here and take account of all the decisions that I make and that this government makes in my portfolio areas but, when it comes to public servants doing a bloody hard job in the best way that they know how and doing it with the highest degrees of integrity, I will not allow those slurs to stand.

There was reference made to the Labor government's expert planning reform panel and what it thinks about how the planning reforms are progressing. Interestingly, late last year, as debates on heritage were raised, especially in relation to contributory items transitioning across to the new system—a decision that was actually taken back in 2016 and one that members opposite all voted for—I asked that same expert panel to look at how we were transitioning heritage to the new system and they fundamentally agreed with the government's approach.

They fundamentally agreed and confirmed that the government's approach is correct, that it is in keeping with what the expert panel handed down back in 2014, and, moreover, that it is actually going to help strengthen and improve the legislative underpinning of heritage in South Australia. I have sent a copy of that report I think to all members, and they might avail themselves of an opportunity to read that and actually understand that it supports the processes and the outcomes the government has reached.

Interestingly, though, there has been some mention of the expanded call-in powers that we put in place under the earlier iterations of the COVID-19 bill. Those call-in powers and the broad-ranging nature of those call-in powers were voted on by this chamber back in 2016 when the Planning, Development and Infrastructure Act was put through this chamber. Those broad-ranging call-in powers given to the minister, voted on by members opposite, supported by members opposite, are essentially the powers that we sought to bring forward as part of the COVID-19 bill.

The reason we did that is that we did not want to have a situation where construction workers were having to sit idle because planning applications were being held up in council chambers. We wanted to make sure that if the need arose, especially in situations where we were facing a stage of the pandemic where it could have been that entire planning departments within councils needed to self-isolate because they had potentially contracted coronavirus, we would have a contingency in place for that situation so that we did not see construction jobs stop dead in various parts of our city, as we know that keeping people in work at this time is even more important than it is pre and post COVID.

We also have not used the power because to date we have not had a situation requiring us to. Because of the strong performance and strong health response that this government has put in place, we have not had the need to use those call-in powers, but they sit there as a fallback, as a reserve option, in case we need to do what we need to do to keep people in jobs in South Australia to help stimulate our economy, and that is something we do not resile from.

Also, what we have had announced today is a significant housing construction support package announced by the federal government, including $25,000 grants for new construction. This is a phenomenally important measure that will help to stimulate potentially thousands of new houses to be built right at a time when confidence in the housing construction industry is at its lowest. From our discussions with the federal government, there are very strict time frames about people's ability to get that $25,000 grant because the federal government wants to make sure, and we want to make sure, that those jobs are in there at the time that they need to happen.

Those time frames will be stymied if development applications for those new builds get stuck in council chambers. If it is a situation where that delay goes on for too long, we could see a situation where people are denied those grants because of red tape and bureaucracy. Having these reserve powers, which I remind the chamber we have not used yet, make sure that those applications are processed in a timely way so that people can get access to the very money that the federal government knows, and the state government knows, they need to be able to stimulate jobs during this time. Again, that is something we do not resile from.

We are not doing anything underhand here. All we are doing is seeking to bring forward powers which will exist under the phase 3 rollout of PDI which is going to happen later this year—powers this chamber voted for. All we are doing is seeking to bring them forward to give us the flexibility to be able to respond in real time to this coronavirus. The government most strongly opposes this disallowance motion because, if it were to pass this chamber today, it would cause significant issues, not for the state government but for the very councils that others think they are championing by forcing them to have to go back to public notification processes that are not compatible in a COVIDSafe environment. I think that that is dangerous and I think that that is unhelpful, and it is why this government will be opposing this disallowance motion.

I appreciate that on heritage matters people do not always agree. In fact, I would settle for most people agreeing maybe once or twice. But what we have are disparate groups within the community who believe in a different set of outcomes for what Adelaide should look like and how Adelaide should be developed—fundamentally and potentially diametrically opposed outcomes. It is the job of the planning system to try to balance all those views into a system that is coherent, repeatable, transparent and one that people can have confidence in regarding open decision-making.

That is an impossible task to deliver with people who have disparate sets of views. They will look at the same development and think, 'This is brilliant and beautiful and delivers good outcomes,' and a different group of people will say, 'This is awful.' We have to put in a planning system that can help to cater for all those needs, so I am not surprised in the slightest that there are people who do not like the Planning and Design Code and what it looks like it will become because they disagree with those outcomes. But in a democracy that is inevitable. I know that the Speaker has had to deal with this in his own electorate, and this government has sought to remedy and deal with some of the most egregious examples.

This is a difficult time, this is a difficult area, but what we will deliver at the end of this process in essentially delivering on a process that was started under the former government are—and the member for Enfield whose name does not get mentioned that often by members opposite these days—

Mr Brown: Former member for Enfield.

The Hon. S.K. KNOLL: Sorry, you are correct, member for Playford. It is the former member for Enfield.

An honourable member: QC.

The Hon. S.K. KNOLL: SC—longer consultation time frames for people, a Community Engagement Charter that means that people have more say in decision-making, quicker time frames for assessing development applications so that we can get to a yes or a no more quickly, as well as a consistent system that helps to reduce bureaucracy and red tape and that, for the first time, delivers a statewide e-planning solution that means that laypeople will be able to click a button on a piece of land and know exactly what they can and cannot do on that piece of land. These are all brilliant reforms, ones that this government supported in opposition and one that this government will deliver to the benefit of people in South Australia.

Mr TEAGUE (Heysen) (11:44): I rise simply to observe that the regulations were the subject of the Legislative Review Committee's report No. 6, which was received in the house yesterday. The committee resolved no action. I might observe more particularly that the regulations in this case are wholly conventional, amending the act pursuant to section 73B of the act; regulation 5, does that. The Henry VIII provision in the act is applied. The powers that are conferred are by no means unlimited, and they apply explicitly and expressly until no longer than the designated date, and they are applying in circumstances that are obvious to all members of the house. I would add that, in my view, the motion is unmeritorious and I wholeheartedly endorse the contribution of the minister in that regard.

Ms BEDFORD (Florey) (11:46): The remarks I have cited in my contribution today are in the media; they are in the public area. Support, of course, for the difficult role of the staff is not withdrawn or besmirched in any way. My concerns reflect on the regulations, not the staff who have been required to produce them. Were councils going to stop dead in their tracks because of COVID? Are they delaying anything in particular? None of this has been shown to be the case.

As the minister said, he has not used the powers which he has asked for. Reflecting on the concerns raised with me and raising them is part of my job in this place, and I will not be forced into silence by the minister or his remarks. Dissent is an important part of any democracy, and I do not understand why I have been attacked in such a fashion here in the chamber this morning. Did you, minister, consult with the LGA? Our centralising power is a concern of theirs, and I think you should be aware of that, if you have not actually consulted with them and found that out for yourself.

The minister mentions heritage issues, and they are of course an important part of Adelaide. Once something has been razed, it is gone and it is gone for good, so it is important that we do hasten slowly perhaps rather than go full throttle. The people—14,000 of them I believe it is—who have signed a petition that has been received in another place are naturally very concerned and wary of centralised power. As I said, the minister has not used the power—he has admitted that himself—and it could therefore be seen that these powers are unnecessary in the first place. So I commend the motion to the house.

Motion negatived.

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