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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Statutes Amendment (Local Government Review) Bill

Committee Stage

In committee (resumed on motion).

Clause 101.

Ms STINSON: Can the Attorney inform the committee what the total number of referrals to the minister have been under this provision in regard to community land or the revocation of community land status, both for the existence of this and also by year over the last three years? Obviously, I am happy for that to be taken on notice.

The Hon. V.A. CHAPMAN: Just so I am clear about it, it is the number since the end of July, since I became minister; is that right? And then also the annual amount for each of the three proceeding years, presumably to 30 June?

Ms STINSON: Yes. it is the total number of referrals put to the minister under this section ever.

The Hon. V.A. Chapman: Ever?

Ms STINSON: Yes. I do not really have a great idea of how many there are or over what period, so if you want instead to provide yearly for the last three years, that would be fine.

The Hon. V.A. CHAPMAN: Let's just start with that. Can I indicate briefly to the committee that obviously as a new minister—I have only been in the job a few months—I could probably think of half a dozen matters that have been put to me to advise of councils requesting that community land be available for sale generally or conversion of use.

I am advised that there are about 30 or 40 a year, which is probably consistent with that. They come through a process to the minister ultimately for approval. I think the last one I had was from the Mitcham council. Councils go through a certain process. They have to give notice, and I have to be satisfied that the process is being followed and then make a determination whether, on balance, it is reasonable that the community land be converted for whatever is proposed to happen with it.

The only thing I can initially add, in the very brief experience I have had with them, is that sometimes community land is abandoned, if I put it in the sense that its original purpose is no longer relevant, and the community is looking for some renewed use for it, and councils step in to look at whether it is able to be used for some other purpose for the benefit of the community. Sometimes the original people who set these up are no longer around.

The most recent one I have had anything to do with personally is the Stokes Bay Tennis Club on Kangaroo Island. It was smashed during the fires. Various agencies are putting in money to rebuild tennis courts, repair the hall, put up a CFS shed and things like that, and it is all on community land.

From time to time, it is relevant to various parties who contribute donations and/or investment to infrastructure on these things, but my understanding, in that instance with the local Kangaroo Island Council, is that they are happy to treat it as a community asset, whether the council own it or whether it is community land. I imagine it depends a bit on how local councils treat the issue in question, but it is quite a process. There have certainly been probably half a dozen that I have been aware of. There might have been three or four that have come up to me to either approve or reject, but we will get that three years' data for you.

Ms STINSON: I would be most grateful for those figures. What I am trying to ascertain is how many referrals will no longer come to the minister due to the amendments that are being put forward. My understanding is that what is being put forward is that a number of what might be termed lesser applications will no longer need to come to the minister but will go through a council-run process, so I am just trying to figure out how many that will affect. Will it be one of the 30 or 40 that you get each year or will it be 50 or 60 per cent of the current referrals that are coming up to the minister?

The Hon. V.A. CHAPMAN: About 30 or 40 a year have been going through to the minister or the delegate because my understanding is that, until I became minister, there had been a delegate in place. I am not even sure who it was, but I remember receiving advice that, until this whole issue is sorted out here, these matters should go to the minister and so I have been dealing with them. I am not sure whether it is usual practice or not that this is given a delegate role to some executive officer of some kind. Some ministers do, some ministers do not. Anyway, for whatever reason, I am doing them and I am happy to do them until we have this in process.

What I think you are trying to ascertain is what would be the reduced number that would be expected to only go to the minister with this in process and obviously on the basis that it can be covered by this other process. We will see if we can find that out.

Ms STINSON: I wonder if the Attorney could also expand on the reasons why she says that this amendment is necessary. I realise that this goes to both clause 101 and clause 102, so I am happy for them to be addressed together. I wonder what the driving force is behind this because to me 30 or 40, especially if they are delegated, do not seem like a lot of referrals to be dealing with, yet the reason that was put to me was that this was too onerous and the council should be dealing with it themselves. I wonder if the Attorney could enlighten us on what the objective is here that is trying to be achieved by these amendments.

The Hon. V.A. CHAPMAN: My understanding is that this matter is being proposed on the basis that often land is left vacant, abandoned and not utilised. Councils—certainly the metropolitan councils—are always keen to look at how they can employ the use of available space and that is to their credit. The idea of putting something to good use that is currently sitting abandoned in that sense needs investment and needs to be dealt with. They go through a process. They do all the work. If they are committed to bringing it to life again for the benefit of the community then they are the best people to make that decision.

At the moment, my process on top of it is really to say, 'Have they ticked all the boxes? Have they given notice?' I think there are certainly public notice procedures—last known occupants and those sorts of things—that have to be advised because, again, community land can develop as a result of somebody bequeathing land for community purpose but not setting up a trust around it.

As Attorney-General, I get to look at all sorts of trusts and sometimes change their charters and terms so that they can change a role; for example, suddenly boxing rings do not become popular out of the 1930s and they need to change something to a different purpose. It is a red-tape issue, as I understand it. There are lots of hurdles they have to go over anyway, so should it need to come up through a minister and have some executive sign-off? The general feeling is no.

I just mention, for whatever reason—just keeping an eye on these things—I am doing them in the meantime. I hope that is some reassurance. I have a fairly critical assessment of these because I get a lot of advice at different levels of the proposal, but also checking off that all the ticking of the boxes has occurred; that is, councils just cannot come in, pull it over, then get a property developer and put housing on it. It has to be identified for its new community purpose. Sometimes it can be for addition to another title. There was one I had in that category. Again, that is really just the structure to enable them to be able to utilise it for a community benefit.

The CHAIR: Point of clarification, member for Badcoe?

Ms STINSON: I think I have expired my three questions on that one, but I have similar questions that I can apply to clause 102.

Clause passed.

Clause 102.

Ms STINSON: The Attorney in her last answer touched on the next point that I wanted to explore. Labor does see the ministerial tick-off that is in place at the moment as a necessary check on councils who may wish to sell off land or change the purpose of land contrary to what their community might want. Obviously, I am thinking of the example that has been in the news and the subject of quite some community consternation lately, which is the Walkerville YMCA situation. What provisions are there to protect situations that occur like that, and will the minister still be looking at those kinds of cases where a council may well want to repurpose land or, indeed, sell it off for apartments or developments, but it is in conflict with the community?

My understanding of how the council community consultation phase operates at the moment is that the council is not bound by the results of its own consultation. While there is a provision that it has to consult with the community, if the community comes back and says, 'We absolutely don't want you to sell this land,' the council can still go ahead and do it anyway.

The important safety net to that currently is that those matters all have to go up to the minister and the minister has to apply a public interest test, essentially, to see if the process was followed and to see if it is a fit reason for the council wanting to change the use of the land or sell it off in some way. So what protections are there in place to make sure that, in a situation like Walkerville, the minister would still have a tick-off and there would still be a safety net there, or are we removing a safety net that is quite important for those communities?

The Hon. V.A. CHAPMAN: Firstly, let me deal with the Walkerville situation. The Walkerville example is community land. The YMCA issue is a matter where they have been a tenant and the council have made a decision not to renew the tenancy, as I understand it, and so this is where the tension is there. That has nothing to do with whether it is council land or community land. It being community land, there is a restriction on the extent of the lease that can be granted. There is a limitation on community land that it can only be up to 42 years, so that is not really the key issue.

The second issue that you raise is if the opposition is of the view that we need to have some sort of ministerial protection just in case councils do go and try to flog off these assets, there is already provision in the act to cover that. I am just finding it now: under 194B and community land, the bill makes provision that if you sell it or change it, if it is being used for educational, sporting or recreational purposes or community open space and the revocation is with a view for sale or disposal of the land, then all those circumstances need ministerial approval anyway.

I think that is the key issue, if you are concerned about that. That will still be a sanction that is required, but they do not need to come through for me to tick the boxes on whether they have given public notice and various things of that nature. That will just be part of their normal management.

Ms STINSON: My understanding of the Walkerville situation differs from the Attorney's. I agree with the Attorney in that she has said, yes, they were a tenant and the council is ending that tenancy on 31 December, and after that they will no longer be a tenant on that site. However, the site is larger than that, and both where the YMCA is now and some other adjoining parcels of land are the subject of, I believe, current consultation—or it may have just finished—that the council is doing about the future of that piece of land.

Obviously they are going through the process that is outlined in the existing act but then, because they are doing it at this stage, the next step will be for it to go to the minister. The minister or their delegate will have to decide whether the process has been complied with—and there is some conjecture whether or not that is the case—and whether the purpose, which to date has not been clearly stated to the community, is a valid one under the act. That will obviously be up to you, as minister to decide.

I am just trying to ascertain, if that situation or something similar arises again where the community has an interest in the land, either for its current or possibly future purposes, what will be in place.

The Hon. V.A. CHAPMAN: First, there is no application before me, or as I understand it the department has not received any application, to deal with the community land. Yes, the community land has had part of its tenancy on there with the YMCA. Nothing I currently do as minister can require the keepers of the site to agree to any particular tenancy. That is not my role as minister.

Ms Stinson: I am not concerned with the tenancy—

The Hon. V.A. CHAPMAN: I am just saying that is why I think it confuses the issue a bit. There is no application before me, but if it does come before me then I will have to consider certain aspects of it. Under this arrangement they would still have to come to me to get approval if they planned to sell it, because it is in this category of being for community use and a sporting facility. It is probably not the best example, but if we were to look at any situation where they were planning to sell it they would still have to go through a process anyway—and these are all the things that the scrutiny of the department is there to identify, whether they have actually fully complied with those things.

Let us assume they want to change its use to make it into a private tennis club or something of that nature, and it is a change of use. Frankly, I remember the time when Jane Lomax-Smith was the Lord Mayor, and we had a similar type of situation dealing with the change of use of Memorial Drive and the introduction of private enterprise such as childcare centres. She was not very happy with that, because it was on parklands. I said, 'Well, you're not going to get mums back to gyms if they haven't got somewhere to put their baby, so let's think a bit more practically about this.'

We managed to get that happening, but it was the whole question of having an enterprise on an area that was, in that case, parklands used for a sporting facility—in that case tennis was the main sporting facility on it—becoming an entirely different enterprise. These always bring challenges, especially when metropolitan councils are generally very guarded about wanting to keep their open space, because there is usually a shortage. The hurdles are there now. They will still be there for sale and/or even the view to sale. I think that is an important initiative, with the protections in here that I think the member is concerned with.

Ms WORTLEY: In relation to the site that we are referring to in Walkerville, at the moment, if the current community land classification is revoked, my understanding is that, as you mentioned, that would enable a lease of longer than 42 years. It would also enable the council to sell that land. What is the difference to the legislation as it currently stands and any of the changes that have been put forward?

The Hon. V.A. CHAPMAN: That is my point. At the moment, it has to go through ministerial approval and the arguments that I have outlined are to that being unnecessary for most of the conversions here. If they have to sell it under this proposal and under the new regime, even though they are going to be relieved, less will have to come through the minister, if they want to sell it or have the view to selling it, even if they have not put the sign up, they still have to come through me and go through a process. That issue of the kicking out existing tenants, which is probably how the YMCA feel, and the disposal of it to get some return on this land is a matter that remains as a protection under this new regime.

Ms WORTLEY: In relation to proposed sale of the land, what changes in what is currently in the legislation and what is proposed?

The Hon. V.A. CHAPMAN: My understanding is the only new thing, which is an extra thing here, is that I can set conditions on my approval as the minister. Anyone in my position would be able to do that. That may not be how they were going to apply to the sale or who they are going to sell it to, but more likely that they get a market appraisal of the value of the property—in other words, that they are not underselling it, for example.

I am not suggesting the Walkerville council is in any financial difficulty, but if a council wanted money quickly, they wanted to flog something off and they were selling a significant community asset under par to deal with their own impecunious state, then that may be something that I want to set a condition on to make sure that they do get fair value for their community. I do not think it goes as far as requiring them to reapply those proceeds or anything of that nature; it is really just conditions of how the sale is going to take place, as the way I am advised.

Clause passed.

Clauses 103 to 107 passed.

Clause 108.

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

Amendment No 73 [DepPrem–1]—

Page 59, after line 16—Insert:

(a1) Section 221(3)(b)—delete paragraph (b) and substitute:

(b) the alteration—

(i) provides for vehicular access to and from land adjoining the road (including construction of a crossover or driveway and associated or ancillary works, other than works excluded by regulation from the ambit of this paragraph); and

(ii) subject to subsection (7), is approved as part of a development authorisation under the Planning, Development and Infrastructure Act 2016; or

Amendment No 74 [DepPrem–1]—

Page 59, lines 17 to 19 [clause 108(1) and (2)]—Delete subclauses (1) and (2) and substitute:

(1) Section 221(7)—delete subsection (7) and substitute:

(7) A relevant authority under the Planning, Development and Infrastructure Act 2016 may only grant an approval under subsection (3)(b)(ii) after consultation with the chief executive officer of the council.

Amendment No 75 [DepPrem–1]—

Page 59, lines 21 and 22 [clause 108(3), inserted subsection (7a)]—Delete 'subsection (7)(b)' and substitute:

subsection (7)

Amendment No 76 [DepPrem–1]—

Page 59, lines 30 to 36 [clause 108(4)]—Delete subclause (4) and substitute:

(4) Section 221(8)—delete subsection (8) and substitute:

(8) The requirement to consult under subsection (7)—

(a) does not extend to an assessment panel appointed by the council; or

(b) does not apply to an alteration that complies with any relevant design standard under the Planning, Development and Infrastructure Act 2016.

I move these amendments en bloc. They relate to clauses in the bill that propose to amend uncommenced provisions of the Planning, Development and Infrastructure Act 2016, which will implement a scheme where no authorisation or permit will be required where the alteration or use of a public road is approved as part of a development authorisation under the PDI Act.

The clauses in the PDI Act would expand the exemption for authorisations and permits to alterations and uses for any purpose if they are approved as part of a development authorisation. This would also create a different pathway for development authorisations depending on if they were approved by an accredited professional or other planning authority under the PDI Act.

The clauses within this bill as introduced amend the PDI Act provision to require consultation on the authorisations that are proposed to be provided as part of the development authorisation only to be with the council CEO. These clauses have been discussed at length with the LGA and councils, who raised a number of concerns, chiefly that the large-scale exemptions from applications to councils for authorisation would apply with limited consultation.

Following these discussions, these further amendments are proposed. They will reduce the scope of 'development authorisation' exemption back to the current 'driveway crossover' exemption and provide an exemption for associated or ancillary works other than those included by regulation. These amendments also create a simpler consultation scheme for the provision of authorisations regardless of who is granting the development authorisation. I hope that is clear.

Amendments carried; clause as amended passed.

Clauses 109 to 114 passed.

New clause 114A.

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

Amendment No 77 [DepPrem–1]—

Page 60, after line 21—Insert:

114A—Repeal of section 225B

Section 225B—delete the section

The bill proposes that specific provisions relating to mobile food vendors be removed to be replaced by a general right of appeal where a council has unreasonably issued or refused to issue a permit or authorisation to a business, including food trucks, or a council's use of permits or authorisations has unreasonably impacted a business. It is proposed that this appeal would be made to the Small Business Commissioner, who has the existing role to manage any conflicts between food trucks and other businesses in reviewing council location rules.

However, this amendment removes the specific role of the Small Business Commissioner. It is not considered necessary for the commissioner to have a specific role under the act, as the commissioner has a prescribed function under section 5(1)(b) of the Small Business Commissioner Act 2011 to assist small businesses on request in their dealings with state and local government bodies. At this point, I move only amendment No. 77, which deletes the first section, and then in the matters I have foreshadowed we will make provision in the next.

Ms WORTLEY: Attorney, would you be able to explain what the difference is between the current situation and what the new clause will in effect do to food trucks?

The Hon. V.A. CHAPMAN: Food trucks are there. There have been some issues; I think that is pretty obvious, especially in coastal councils. We are proposing here that the original concept for trying to deal with these matters will not progress; we will not be asking the Small Business Commissioner to do that. He has powers to come in anyway, if he is needed. This was seen to be not a sensible way of trying to deal with that, but there are protections already there. Is that what you are looking for some assurance on?

Ms WORTLEY: Yes.

The Hon. V.A. CHAPMAN: Thank you.

Ms WORTLEY: Could I have clarification then on the current situation and what will happen when this is passed?

The Hon. V.A. CHAPMAN: There will not be specific provision for the food trucks, but if they are in some way being treated unfairly they still have access to the commissioner. We are not putting that in a prescriptive state in this bill, as that is not really the answer here, but there has to be some reassurance. We do not really have much there to deal with it at the moment; we have special provisions for food trucks, but that is not really ideal to stay there. We have come up with a model; it seems that that is not going to help much either, but we need to have some reassurance.

Although we had originally proposed the Small Business Commissioner, we were really saying, 'Lets just move that back out. He has certain powers anyway under his own act, and he can act for the resolution of issues in relation to local government and government agencies anyway, so we don't need this.' This is another level of unnecessary regulation that we agree is probably unnecessary.

New clause inserted.

Clause 115.

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

Amendment No 78 [DepPrem–1]—

Page 60, line 22 to page 61, line 10—This clause will be opposed

This is really just the extension of exactly what we were discussing before, so I do not think I need to add anything further.

Clause negatived.

New clause 115A.

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

Amendment No 79 [DepPrem–1]—

Page 61, after line 10—Insert:

115A—Amendment of section 226—Moveable signs

(1) Section 226—after subsection (2) insert:

(2a) A person must not exhibit an electoral advertising poster relating to an election held under this Act or the Local Government (Elections) Act 1999 on a public road (including any structure, fixture or vegetation on a public road), except in circumstances prescribed by the regulations.

Maximum penalty: $5,000.

(2) Section 226(3)(ca)—delete paragraph (ca)

(3) Section 226—after subsection (4) insert:

(5) In this section—

electoral advertising poster means a poster displaying electoral advertising made of—

(a) corflute; or

(b) plastic; or

(c) any other material, or kind of material, prescribed by the regulations.

Incidentally, I think this is the clause that the member was interested in about moveable signs. This is the insertion of section 115A, to deal with moveable signs and setting out provision for not exhibiting electoral advertising posters. This amendment has been proposed following a call by the local government sector themselves to apply restrictions to the display of election signs or corflutes. At the Local Government Association annual general meeting on 31 October 2019, councils requested the LGA to advocate for stronger regulation of corflute signs.

The LGA has stated that councils identified many problems with the use of corflute election signs during recent commonwealth, state and local government elections, including the loss of roadside amenity, diminished roadside safety, potential damage to roadside infrastructure and the significant council resourcing requirement for enforcement.

I also note that candidates in local government elections have varying degrees of resourcing available to them. Many council candidates simply do not have the resources to print display corflutes and they should not be disadvantaged because of this. Also, it should be noted that ballot papers that are distributed to voters in local government elections include information on all candidates. Voters do not have to see corflutes to understand who is standing in their elections.

Members would be aware that there is also another bill for electoral reform in the parliament at present to deal with corflutes and their use, or diminished use—restricted back to polling booth and polling day use only—and for the removal of their display. Whilst I appreciate the opposition have given an indication they will be opposing all the elements of that reform bill, which is disappointing, I would still ask the opposition to consider accepting this reform. The reason, particularly, is that as soon as we had made announcements as a government that we were considering the removal of corflutes for state elections, or at least their regulated use, I received a letter, almost instantly, seeking that they be included; that is, that local government councils be also relieved of the burden of these things.

My immediate reaction was, 'You are all council districts. You can all identify whether you are going to approve them or not. It is really a matter for you. It is in your hands.' But they wanted this cleaned up. They have advocated for it. Obviously, given our position on the state election corflutes, we think they are past their use-by date and there are many other better ways for people to communicate their credentials for the purposes of favourable consideration of the candidate. We are in the 21st century and we would ask the opposition to consider this. Not to do so would be going against the wishes of the councils that want to be relieved of this. I will say, for the record, that Kangaroo Island has historically rejected corflutes.

Ms Wortley: That's because everyone knows everyone.

The Hon. V.A. CHAPMAN: Well, not necessarily, but I make the point that there has been a practice on the island not to use them during state elections and so we do not have our fences or trees or sheep yards adorned with pictures of candidates. We seem to have survived over there without them when I was growing up, that is for sure. I think at the last election the current member for Mawson had actually put a display up on Kangaroo Island that had incited other candidates, apparently, to put up posters. I cannot say it was very warmly welcomed—perhaps reflected in the vote the sitting member got on Kangaroo Island. I think in the polling booth I stood he got about 30 per cent of the primary vote.

Ms Stinson: Which I think was a lot better than the previous Labor candidates.

The Hon. V.A. CHAPMAN: No, I think the sort of 68 per cent for the Liberal Party in that booth was pretty—

The CHAIR: Anyway, we are digressing.

The Hon. V.A. CHAPMAN: I am getting into Michael Atkinson-type conversations at this point about who has the best winning booth in the state elections. The point is: this is something councils are seeking relief from. We agree with them. It is there for your consideration.

Ms STINSON: There is a subsection in there that reads:

A person must not exhibit an electoral advertising poster relating to an election held under this Act or the Local Government (Elections) Act 1999 on a public road (including any structure, fixture or vegetation on a public road), except in circumstances prescribed by the regulations.

Attorney, can you detail what circumstances you envisage in the regulations?

The Hon. V.A. CHAPMAN: I would expect probably whatever is going to be sorted out is the same as for state elections, as to what happens on polling day. So the electorate and district does not get swarmed with posters, but there is an acceptance in terms of the state election proposal that there will be some form of opportunity to display corflutes on polling day at polling booths.

It may actually be during the polling period, because we are looking at the pre-polls, but when you come to vote at the place of voting, there will be some regulatory management of that. So the blight here is really only the relief during the 28 days or so before the election in that you do not get blinded with pictures of candidates.

Ms STINSON: The Attorney earlier mentioned that she had turned her mind to the way that this might be dealt with might be that individual councils could make their own rules about whether or not they had corflutes. I understand the Attorney said she was persuaded by the Local Government Association's arguments that it should be done in this way and apply to all councils. What is it about that argument that trumps the argument of allowing councils to pass their own by-laws in relation to corflutes?

The Hon. V.A. CHAPMAN: At first blush, because they have powers to restrict or set terms and conditions in relation to corflutes. I do not know about the member for Badcoe, but come election time we have to write out a form to the local council to get permission to put up posters—where, when and all those things; that is a process you have to go through. I am wondering why we would need to come in in a statutory way to deal with that?

Just imagine for a moment the pressure on councils if someone was in a better position to be able to have that display as a candidate for a council election—richer, they have more support, whatever—and was able to exploit this opportunity and others did not. Would they have influence on the council, on allowing those by-laws to be exercised or not? Well, I think that is what they want to be relieved of, to be frank. They do not want to have to be—

Ms Stinson: You're talking about them being corrupt.

The Hon. V.A. CHAPMAN: Sorry?

Ms Stinson: You're talking about the council being corrupted by—

The Hon. V.A. CHAPMAN: No, definitely not—simply by a decision as to what they will allow or not. And if there is a situation where there is unreasonable pressure to have this available, they may put those arguments.

What is now being suggested to me is that authorisation is not currently required from the councils. Well, I am just a very good candidate; I make sure I provide those details. So that is there. Of course, one of councils' biggest problems is having to deal with the compliance afterwards—that is, people who put them up anyway, and they have to be able to manage it now. They do not want them up there in the first place. They do not want to have to go round and say, 'It's exactly two days since these have been up here, and they are supposed to be gone,' etc. This is what they have asked for. They want to be relieved of this, and we think they have a good argument.

Clearly, as I now know, the forms I am filling out are not for authorisation but, rather, to provide notice to them. Their capacity to actually manage that is not as extensive as I thought it was.

Ms STINSON: Before we vote on this, I just want to indicate that although the LGA has been very helpful in putting forward many constructive amendments over the course of looking at this incredibly complex bill, unfortunately Labor does differ with them on this point, and we will be opposing this.

New clause inserted.

Clauses 116 and 117 passed.

Clause 118.

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

Amendment No 80 [DepPrem–1]—

Page 61, after line 18—Insert:

(1) Section 234AA(1)(b)—delete paragraph (b)

I indicate that these amendments are consequential on the development authorisation amendments to the authorisation and permit provisions in sections 221 and 222.

Amendment carried; clause as amended passed.

Clause 119.

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

Amendment No 81 [DepPrem–1]—

Page 61, lines 23 and 24 [clause 119, inserted subsection (6)]—Delete 'the council has given public notice of the resolution' and substitute 'notice of the resolution is published on a website determined by the chief executive officer of the council'

Amendment No 82 [DepPrem–1]—

Page 61, after line 24—Insert:

(6a) A council must also give public notice of a resolution passed under this section as soon as possible after passing the resolution.

These amendments have been requested by the LGA that will allow councils to close a road once this decision has been made and a notice published on the council's website, rather than waiting for the publication of the next Government Gazette. I think it is a sensible 21st century initiative and I endorse it for consideration of the house.

Amendments carried; clause as amended passed.

Clauses 120 to 125 passed.

Clause 126.

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

Amendment No 83 [DepPrem–1]—

Page 63, lines 14 to 16 [clause 126, inserted section 262B(2)(a)]—Delete 'the presiding member, chief executive officer or a delegate of the presiding member or chief executive officer authorised to receive complaints (as appropriate)' and substitute 'a person authorised to receive complaints, being a person who is not the person the subject of the complaint'

Amendment No 84 [DepPrem–1]—

Page 64, line 39 [clause 126, inserted section 262B(3)]—Delete 'and may—'

Amendment No 85 [DepPrem–1]—

Page 64, line 40 to page 65, line 2 [clause 126, inserted section 262B(3)(a) to (c)]—Delete:

paragraphs (a) to (c)

Amendment No 86 [DepPrem–1]—

Page 65, after line 4 [clause 126, inserted section 262B(4)]—Insert:

(ab) must not be inconsistent with the Public Interest Disclosure Act 2018 or a council procedure under that Act; and

Starting at amendment No. 83, this followed concerns raised by the LGA to propose that section 262B(2)(a) be amended to require that complaints be provided to a person authorised to receive complaints and remove references to the presiding member, CEO or delegate to enable the council policy to specify who the authorised persons are. This is to ensure compliance with obligations under the Public Interest Disclosure Act 2018.

Amendments Nos 84 and 85 are the technical amendments. It is not considered necessary to list the matters that may be included in councils' behaviour management policies, given the wideranging powers included in the clause. Amendment No. 86 has been included following feedback from the LGA to ensure that the council's behaviour management policy is not inconsistent with the Public Interest Disclosure Act 2018 or a council procedure under this act.

The ACTING CHAIR (Mr Cowdrey): Do you have any questions, member for Badcoe, in regard to those amendments?

Ms STINSON: No.

Amendments carried.

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

Amendment No 87 [DepPrem–1]—

Page 65, lines 27 and 28 [clause 126, inserted section 262C(2)]—Delete 'an ordinary' and substitute 'a'

This is a technical amendment to ensure the matter be considered at any meeting of the council, i.e. an ordinary or special meeting.

Amendment carried.

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

Amendment No 88 [DepPrem–1]—

Page 69, line 28 [clause 126, inserted section 262M(1)]—Before 'costs' insert:

reasonable

Amendment No 89 [DepPrem–1]—

Page 69, line 28 [clause 126, inserted section 262M(1)]—Before 'ongoing' insert:

reasonable

Amendment No 90 [DepPrem–1]—

Page 69, line 31 [clause 126, inserted section 262M(1)]—Delete 'the President of'

Amendment No 91 [DepPrem–1]—

Page 69, after line 31 [clause 126, inserted section 262M]—After subsection (1) insert:

(1a) The LGA may recover (from time to time) the costs payable by the LGA under an arrangement under subsection (1) as a debt from councils.

These clauses have been amended in response to some concerns raised by the sector regarding the potential costs of the proposed behaviour standards panel, which is proposed to be paid by the LGA. Amendments Nos 88 and 89 insert the word 'reasonable' before 'costs' to provide additional assurance that the cost will reflect what is really needed to operate the panel.

Amendment No. 90 clarifies that the arrangement that the minister will put in place on these costs will be with the LGA, following consultation. I emphasise that consultation with the LGA on the operation of the panel, particularly its establishment, will be critical. We have commenced dialogue in relation to composition and the like. I will engage very closely with the LGA on these important matters as the reform is implemented. Amendment No. 91 allows the LGA to recover costs from councils as a debt, to enable it to require contributions from councils that may not be members but still benefit from the work of the panel—good union strategy.

Ms STINSON: My question to the Attorney surrounds the costs of setting up the Behavioural Standards Panel. Will the LGA be billed, if you like, for the establishment of the panel? I imagine there are people who need to be hired, buildings that need to be rented, office space that needs to be rented. Will those establishment costs be footed by the LGA and passed on to the councils? Also, what is the estimated cost of both setting up the Behavioural Standards Panel and the annual cost of running it?

The Hon. V.A. CHAPMAN: That is specifically set out in the act. One of the matters we discussed in the establishment of this—which is, again, a process sought by the LGA and councils; this is their way of being able to manage this difficult issue of behaviour—is the grants commission, which has a second role. I forget what else it does, something to do with boundaries. There are three people who sit on it. I think I appoint them all and send them to cabinet for approval. They are commissioners who sit on that and come together for the work as required.

My understanding, on the advice given to me by the LGA, is that that is how they are expecting this panel would operate. I presume they meet at the LGA headquarters or somewhere or, at the moment, as a grants commission. Do they have their own office? No, they do not. I do not know where they meet, but in any event that is what they have suggested, that this panel operate in that way.

I am assuming for a behaviour issue that one, two or three meet for the purpose. They would presumably go to the regional area where the councillors need to be looked at, but they are the matters that they can work out the detail of. It is their establishment, this is their program, it is their cost.

Ms STINSON: In the briefing I received, I asked about costs and I was given an estimate of around half a million dollars, that is $500,000, per year, and that was an operational cost. Since then, members of the LGA have told me that the cost is considerably more than that and may be around $1 million, or more than $1 million. Clearly, there are some figures floating around out there, and clearly at least the Attorney's advisers have some idea of them, as I have discussed it with them previously, but obviously the Attorney is the one who is in charge of this. Therefore, I ask again: are there any costs of which the Attorney is aware, both in terms of the establishment of this Behavioural Standards Panel and the annual operating costs of the panel?

The Hon. V.A. CHAPMAN: I do not know, I do not have those quotes. The grants commission may have cost $300,000 to set up. It is a mechanism by which councils come together and utilise an independent assessing body to be able to share up the money, presumably, in that sense or to deal with boundary matters. This is something they want. Councils have an issue with how they deal with behaviour management; this is the model that they like and that they want.

The member can ask me as many questions as she likes. I have indicated already to the LGA, and have confirmed it here in the parliament, that we will work to assist the LGA, which is the body that will set up this or provide advice on behalf of the councils, and they make nominees at the moment to the grants commission. Similarly, we will have to have discussions about who sits on this, to assist them in that regard.

The only thing I can think of that is close to this is Kapunda, the Light Regional Council, which has a governance panel—I know because the Hon. Graham Gunn, who used to bless us with his company here in the parliament for 40-odd years, sits on it. It seems to be a model similar to what is being proposed here, and it seems to be very effective.

Remember that this is not something about which the government has come along and said, 'Listen, you've got a problem here, so this is what you have to do about it.' They have said to us, 'This is the model we would like to initiate.' We say, 'Fine, we are happy to help and support you to do that; we're not paying for it, but it is a matter for you. If you want to do it on behalf of your members, great—they would be appreciative, I'm sure.' It is really a matter for them. That is what they have asked for; that is what we are giving them.

Ms STINSON: I am surprised that the LGA would not have asked any questions, or their member councils have not asked any questions, of the department or the Attorney's office as to what the likely cost would be of setting up this panel. I understand that the Attorney is saying that this is something the sector wants, but I find it absolutely unbelievable that the representative body or their individual members or non-members, as the case may be, would have no interest whatsoever in how much this is going to cost.

At the end of the day, the LGA will be passing on these costs to councils. Surely the councils have asked how much this is going to cost them, and surely they have asked you that question. I understand that the Attorney is making the case that this is not something the government has particularly advanced, but it is the government's legislation and it is facilitating the setting up of this panel. Is the Attorney in possession of any information that goes to the costs of both setting up this panel and operating it?

The Hon. V.A. CHAPMAN: I do not think I can assist the member any further. It is a model that is new. I am advised by the LGA that they would be seeing it as something similar to the grants commission.

Ms Stinson: So they haven't even asked you how much it costs?

The Hon. V.A. CHAPMAN: They have said that they would like us to help pay for it, but the government's position is very clear, that is, that we will support them to have whatever initiative they want to deal with the management of behaviour of their own councillors.

Ms Stinson: At any cost?

The Hon. V.A. CHAPMAN: That is a matter for them. They represent the councils.

Ms Stinson: They never asked you? Never asked you, 'How much will this cost us?'

The Hon. V.A. CHAPMAN: You can argue the point all you like; this is a matter for them.

Ms Stinson: It's a matter for ratepayers, which is why I'm asking.

The Hon. V.A. CHAPMAN: Absolutely. So why don't you have a meeting with the LGA and talk to them about what they are planning to do on it? I have said to them, 'I'm happy for you as the LGA to be the party that sets this up, meets those matters, bills your constituent members—that is your business.' Alternatively, I will deal with the councils. The LGA want to do it; I respect that, I think it is a sensible model. Go and have a meeting with them.

Amendments carried.

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

Amendment No 92 [DepPrem–1]—

Page 70, lines 2 to 8 [clause 126, inserted section 262N(2)(a) and (b)]—Delete paragraphs (a) and (b)

Amendment No 93 [DepPrem–1]—

Page 70, after line 10 [clause 126, inserted section 262N(2)]—Insert:

(ca) publish guidance material relating to the performance of its functions under this Division, including with respect to the interpretation or application of a provision of this Division; and

These amendments relate to the guidelines that may be published by the behaviour standards panel. The LGA requested an amendment to clarify that councils should remain responsible for the content of their behaviour standards and policies and that the panel should not have the role of providing guidelines or model policies that may be more properly developed and released by councils or the LGA. Amendment No. 93 clarifies that the panel can however publish guidance material relating to the performance of its own functions.

Amendments carried.

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

Amendment No 94 [DepPrem–1]—

Page 71, line 3 [clause 126, inserted section 262Q(1)(d)]—Delete paragraph (d) and substitute:

(d) a responsible person in accordance with section 75G(3b).

Amendment No 95 [DepPrem–1]—

Page 71, lines 4 to 8 [clause 126, inserted section 262Q(2)]—Delete subsection (2)

A 'responsible person', under new section 75G—Health and safety duties, has been included as a person who can refer a matter to the panel. This reflects 75G(3b) which states that if a reasonable person gives a reasonable direction for a council member not to attend a council meeting in order to ensure the health and safety of a person affected by the member's behaviour, the reasonable person must refer the matter to the panel.

This is to ensure that the panel can consider the matter and that the direction of non-attendance at a meeting does not continue for an indefinite period. The minister has been removed as a person who may refer a complaint at the request of the LGA, which queried the appropriateness of this proposal, particularly noting that a report from the panel is proposed to be grounds for ministerial action under section 273.

Amendments carried.

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

Amendment No 96 [DepPrem–1]—

Page 74, line 14 [clause 126, inserted section 262W(2)(b)(i)]—Delete 'an ordinary' and substitute 'a'

Amendment No 97 [DepPrem–1]—

Page 74, lines 28 to 30 [clause 126, inserted section 262W(3)]—Delete:

the member will be taken for the purposes of this Act to have failed to comply with an integrity provision and

Amendment No. 96 is a technical amendment to ensure that the matter can be considered in any meeting of the council—that is, an ordinary or special meeting—and 97 is a technical amendment deeming provisions unnecessary.

Amendments carried.

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

Amendment No 98 [DepPrem–1]—

Page 75, line 4 [clause 126, inserted section 262X(2)(b)]—Delete 'an ordinary' and substitute 'a'

This is a technical amendment to ensure that the matter can be considered at any time that the council has an ordinary or special meeting.

Amendment carried.

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

Amendment No 99 [DepPrem–1]—

Page 75, lines 7 to 28 [clause 126, inserted Division 3]—Delete Division 3

This division is being removed from the bill following feedback from the former ICAC. The commissioner considered this provision to be unnecessary and was concerned that it risked confusion with directions and guidelines under section 20 of the Independent Commissioner Against Corruption Act 2012. Referrals can still occur between the panel and the Office for Public Integrity without this provision.

Amendment carried.

Ms STINSON: My question is in relation to clause 126. Can the Attorney describe how the behavioural management policy interacts with the charter, which we spoke about earlier? Just to hasten things up, can the Attorney also explain how it interacts with OH&S in existing workplace laws?

The Hon. V.A. CHAPMAN: In this instance, they are quite separate aspects. This obviously relates to policies, as it says, for behavioural management of its members. The charter relates to engagement.

Ms STINSON: The second part of the question I just posed was how this behavioural management policy interacts with OH&S in existing workplace laws as well. Does one take precedence over the other if there is a conflict between what this is laying out and what other workplace rights legislation outlines?

The Hon. V.A. CHAPMAN: We started on this issue earlier. We will try to bring it to some sort of conclusion. The Ombudsman identified that there was a weakness in the provision of how matters are dealt with when there is conduct of an elected member who is not an employee—they are not a worker as such; they are not employed on a site—and how they might affect, particularly adversely, staff members.

Workplace health and safety laws are really there to protect the workplace and those who are employed on site and all those who go with it. The whole concept of having this model to deal with bad behaviour in particular is to be able to address the management of elected members. That is the difference. I am also advised that the risk to health and safety would be a serious behaviour and would be refused by the panel and not be dealt with by the council.

I suppose it is a little bit like dealing with a policy of behaviour, a code of conduct, certain laws that occur and then, of course, behaviour that is actually a criminal act. There are situations where someone has to make an assessment at times whether someone's behaviour or action is actually criminal conduct, is in breach of a behaviour code or in fact, as would be set here, is in breach of any other regulatory regime.

It is not uncommon to have behaviour which could apply in a number of categories but for which a determination is made as to where you go on it. Mr Lander's submission on this was very crisply put, I thought, when he talked about there being a big difference between misconduct and maladministration and just bad behaviour.

Mr DULUK: Attorney, I have just a couple of questions in regard to subdivision 2, sections 262F and 262M. I believe it is proposed that the LGA will pay the panel's fixed costs, with councils paying an ongoing fee for service. According to section 262F(2)(c) the Behavioural Standards Panel can sue and be sued. If the panel is sued and incurs costs, is the LGA liable for such costs? If so, is that as an ongoing or operational cost to the panel or of the panel, pursuant to section 262M(1), or as the reasonable costs incurred in relation to a complaint pursuant to 262M(2)?

The Hon. V.A. CHAPMAN: It sounds like the bad news I am getting here because this is a standard clause that goes with body corporates and what their entitlements are. It seems as though if someone is, as a panel, sued successfully against the panel then it is probably going to rest with the Crown to have to pay. I might have to get rid of that myself. In any event, I would not take that as dedicated legal advice and they better not be making notes up there.

But I make the point that obviously if that is the case then, of course, whatever liability that may flow from something like that would also be within the envelope of having the opportunity to have legal costs met and whatever approvals are needed in relation to underwriting some of those things. It is by no means a simple position. That is fairly standard for any entity.

The 262M(2) that you mentioned enables the panel to then recover costs. The panel is going to be set up. The LGA is going to be the body managing all that. They can bill their constituent members for their general running costs. They are happy to take on that role. I think that is an organisation that is appropriate to do that. I do not propose to interfere with that structure. That will be a matter between them and the councils and the panel.

Then, if the panel wants to sue somebody and they want to have some sort of protection, they will probably need to come to me to get some approval to do that if they do not want to be exposed to the risk. They are all matters that we would have a look at if that ever occurred. But we are giving them the benefits that they would have as though they were a body corporate.

Clause as amended passed.

Clauses 127 and 128 passed.

Clause 129.

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

Amendment No 100 [DepPrem–1]—

Page 76, lines 1 to 24 [clause 129(2)]—Delete subclause (2)

Subclause (2) is being removed from the bill following feedback from the Ombudsman, who raised concerns that the section risked confusion and potential inconsistency with the ICAC's directions and guidelines under section 20 of the ICAC Act. We accept that advice. I commend the amendment.

Amendment carried; clause as amended passed.

Clause 130.

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

Amendment No 101 [DepPrem–1]—

Page 77, lines 13 and 14 [clause 130, inserted subsection (2)]—Delete:

the member will be taken to have failed to comply with an integrity provision and

This is a technical amendment. A deemed provision is unnecessary.

Amendment carried; clause as amended passed.

Clauses 131 to 134 passed.

Clause 135.

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

Amendment No 102 [DepPrem–1]—

Page 79, lines 4 to 7 [clause 135(4), inserted subsection (4a)(a)]—Delete paragraph (a) and substitute:

(a) must not provide for a review of a decision of a council—

(i) to refuse to deal with, or determine to take no further action in relation to, a complaint under Part A1 Division 1 by a person who is dissatisfied with the decision; or

(ii) relating to a recommendation of the Ombudsman under Part 1; and

This amendment is being requested by the LGA. It provides that a person cannot seek an internal review of a council decision where the decision is to implement a recommendation of the Ombudsman. It also provides that an internal review on a council decision in regard to member behaviour cannot be sought where a council has made a decision to refuse to deal with or take no further action. This is to prevent additional processes being undertaken continually in regard to a matter that has been settled.

Amendment carried; clause as amended passed.

Clause 136.

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

Amendment No 103 [DepPrem–1]—

Page 79, line 14 [clause 136(1), inserted paragraph (d)]—Delete paragraph (d)

Amendment No 104 [DepPrem–1]—

Page 79, line 15 [clause 136(1), inserted paragraph (e)]—Delete paragraph (e)

Amendment No 105 [DepPrem–1]—

Page 79, lines 23 and 24 [clause 136(3)]—Delete subclause (3)

Amendment No 106 [DepPrem–1]—

Page 79, lines 26 and 27 [clause 136(4), inserted subparagraph (iva)]—Delete subparagraph (iva)

As noted in the previous amendment, the ability of the minister to give direction to a council based on a report of the designated authority has been a key area of concern for councils. This amendment removes that direction of power for all the reasons I have outlined previously, and they will have their new obligations under the maintenance monitoring program.

I should also indicate that the bill proposes to enable the minister to give directions to a council on the basis of a report from the Small Business Commissioner. Given the other removal that is also to be proposed, the Small Business Commissioner is removed as part of this action, and there is a further amendment to remove from the bill the designated authority from section 273—Action on report.

Amendments carried; clause as amended passed.

Clauses 137 to 141 passed.

Clause 142.

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

Amendment No 107 [DepPrem–1]—

Page 81, line 6 [clause 142(5), definition of return period]—Delete '(a)'

Amendment No 108 [DepPrem–1]—

Page 81, line 8 [clause 142(5), definition of return period, (a)]—Delete '(a)'

These are technical amendments.

Amendments carried; clause as amended passed.

Clauses 143 to 147 passed.

Clause 148.

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

Amendment No 109 [DepPrem–1]—

Page 85, after line 26—Insert:

(2) Section 4(1), definition of registered industrial organisation—delete the definition

This amendment relates to amendment No. 115, which proposes to remove 'registered industrial organisation' from section 82 of the Local Government (Elections) Act 1999.

Ms STINSON: Can the Attorney detail the reason for removing 'registered industrial organisation' and what the consequence of this removal is?

The Hon. V.A. CHAPMAN: To be clear here, we are deleting the definition of 'registered industrial organisation' because somewhere else in the bill we are deleting registered industrial organisations as a body that has exemption for the purposes of giving donations. That is the reason.

Ms STINSON: Could the Attorney or her adviser be so kind as to tell me where the other deletion of 'registered industrial organisation' is?

The Hon. V.A. CHAPMAN: I cannot be entirely certain where it has come from. I think that has come from the general drafting of the previous minister. The LGA has not raised any issue with us about it. To the best of my knowledge, of the 93 people consulted no-one has.

Amendment carried; clause as amended passed.

Clause 149 passed.

Clause 150.

The Hon. V.A. CHAPMAN: As per document 67(3), I start with amendment No. 1 in my name, which is the amendment to clause 150.

Mr DULUK: Point of order: I believe I have some amendments lodged as 67(1). Should they be dealt with before the Attorney's amendments scheduled as 67(3)?

The CHAIR: My understanding, member for Waite, is that the minister takes precedence in this situation.

Mr DULUK: Naturally.

The CHAIR: She will move her amendment, and then it may be that you move to amend her amendment. I am sorry to say, to you anyway, that the minister takes priority here.

The Hon. V.A. CHAPMAN: My amendments address an issue that arose recently, namely, the need for a council to hold two separate supplementary elections to fill two vacancies in a single ward that arose almost concurrently. We were speaking about the Mitcham council before, and they have written to me about this issue and we have taken it up on their behalf, obviously with a view to trying to resolve this issue. There was one other council—I just cannot remember which it was now—that wrote to me alerting me of the possibility of this problem. In any event, Mitcham council put a succinct argument to us that this needed to be sorted out, and we agreed.

The situation at the moment is unnecessarily complicated for a council, the candidates and, most importantly, the voters, who would have a reasonable expectation that both of these vacancies can be filled in a single designated supplementary election, so we are dealing with them together. The proposed amendments resolve this issue by allowing the election to elect all vacancies in a single election where those vacancies have been created prior to the close of nominations in the supplementary election underway; where vacancies were created after the close of nominations for that election, the last excluded candidate may be appointed to the position so long as they are still willing and able. The councils will be able to use this method for vacancies within 12 months of a supplementary election.

This is a neat, sensible way to resolve it and I indicate that, whilst the member for Waite has sought to address this matter—and I think that is certainly meritorious—on the advice I have it is important to be able to have subparagraph (ii)(B) in the terms that we have provided to facilitate this circumstance. This is no reflection on the member for Waite's amendment generally, but I am advised this is the more complete way to resolve this issue that is faced by the Mitcham council in particular.

Mr DULUK: Deputy Premier, no reflection at all given; of course, it comes from the same drafting place. It is quite timely, in fact, that this amendment has been put today and we are debating it, because it is just this evening in terms of the second supplementary election in the Gault Ward within the City of Mitcham that Coralie Cheney has been provisionally elected on this basis. Essentially, within the City of Mitcham we have seen two elections held within a three-month period.

Regarding both my original amendments and the ones that have been further taken on board by the Attorney, in her proposed amendments, I foreshadow that if the Attorney's amendments get up as proposed—amendments Nos 1, 2 and 3—then I will withdraw my amendments, including my amendment No. 3, which is consequential on my amendments Nos 1 and 2 getting up.

This is an issue that was brought to me by the City of Mitcham, and I thank the LGA for their support, especially Mayor Telfer as head of the LGA, and Mr Andrew Lamb, on their—

The CHAIR: Member for Waite, if I can interrupt, are you actually moving anything at this stage or are you—

Mr DULUK: No, I am speaking to—

The CHAIR: Okay; as long as we are clear. I might ask you to speak into the microphone, please.

Mr DULUK: There are too many microphones here, sir. I thank the LGA for their support. It was interesting to note what has provisionally been put on the South Australian Electoral Commission website about voter participation in the second supplementary election; it is down on the first one. We can remove unnecessary costs to councils and to potential candidates, and the election process will be a more streamlined version.

In a way, for those who want to follow this one, the best thing is to get out a piece of paper, draw dates and timings in terms of when rolls close and the like, as is outlined in the amendment. It certainly has my support, as well as the LGAs, and, as I said, I will withdraw my amendments and support the Attorney's as listed.

The Hon. V.A. CHAPMAN: Chair, I wonder whether I should move my amendments Nos. 1, 2 and 3 en bloc. That will cover the issues that have been raised by the member for Waite. If it is the will of the committee I would be happy to do that.

The CHAIR: We believe that is a practical solution here. The member for Waite is indicating that he is not proceeding with his motion. Attorney-General, you are going to move all three?

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

Amendment No 1 [DepPrem–2]—

Page 86, lines 22 and 23 [clause 150(5), inserted paragraph (c)(ii)]—Delete subparagraph (ii) and substitute:

(ii) occurs—

(A) within 12 months after the conclusion of a periodic election or a designated supplementary election; or

(B) after the close of nominations for a designated supplementary election and before the conclusion of that election,

(and can be filled in accordance with section 6A) (the subsequent vacancy).

Amendment No 2 [DepPrem–2]—

Page 86, after line 32— Insert:

(7a) Section 6—after subsection (4) insert:

(4a) If, before the close of nominations for a designated supplementary election, another vacancy (the subsequent vacancy) occurs in the office of a member of the council (other than in the office of mayor), the subsequent vacancy may be filled by the designated supplementary election.

(4b) If the subsequent vacancy is to be filled by the designated supplementary election—

(a) the returning officer must give public notice that the vacancy will be filled by that election; and

(b) the material accompanying the voting papers to be issued under section 39 for the designated supplementary election must advise voters that the vacancy will be filled by that election.

Amendment No 3 [DepPrem–2]—

Page 86, after line 38 [clause 150(8)]—Insert:

(8) In this section—

designated supplementary election means—

(a) if the area of the council is not divided into wards—a supplementary election held to fill an office or offices of the council; or

(b) if the area of the council is divided into wards—a supplementary election held to fill an office or offices of the ward in which the subsequent vacancy has occurred.

Ms STINSON: The City of Mitcham, as many would know, falls across many state electorates, and one of those is Badcoe. This issue did not have to be raised with me because of the mere fact that, as a local resident, I realised they were having two by-elections straight off the back of each other. Obviously that not only created unnecessary expense, which quite a few ratepayers have raised with me, but also confusion because ratepayers have had one set of election materials for the Gault ward in their letterboxes and then that has been followed up only a few weeks later. They are left thinking, 'Hang on, I've already voted on this,' when it is actually an entirely separate second election for exactly the same ward.

I do support these amendments—particularly as a member with an interest in the City of Mitcham—but Labor more generally also supports these amendments. I might also pause for a moment and say that I understand the second by-election's count was completed this evening, and I would like to congratulate the lady who won—

Mr Duluk interjecting:

Ms STINSON: Coralie Cheney—thank you so much, member for Waite—who will be a new councillor in the City of Mitcham. Both the first and second by-elections were quite hotly contested, and I did enjoy going to the 'meet the candidates forum' that was held by the council. There were certainly a lot of passionate people who put up their hands, and I think they also should be congratulated on putting many weeks and even months of effort into putting themselves out there as representatives for our community. That is kind of good timing, considering that we are discussing this amendment.

It is certainly an amendment that I support. I do not have any particular questions in relation to it. I understand that both the City of Mitcham and the LGA have expressed their support. I hope that this will fix a rare but annoying problem that has eventuated for this council and certainly, were it not amended, could have posed problems for other councils, as well.

Amendments carried; clause as amended passed.

Clause 151.

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

Amendment No 4 [DepPrem–2]—

Page 87, lines 10 to 13 [clause 151, inserted section 6A(2)(a)]—Delete paragraph (a) and substitute:

(a) the returning officer must, in accordance with the regulations, determine the candidate—

(i) in the most recent election for the relevant office; or

(ii) if a supplementary election is not to be held by virtue of the operation of section 6(2)(c)(ii)(B)—in the designated supplementary election referred to in that subsubparagraph,

to fill the vacancy (a successful candidate); and

This really relates to a continuation of the regime that is necessary to accommodate this peculiar circumstance for Mitcham.

The CHAIR: Member for Badcoe, do you wish to speak to this?

Ms STINSON: No, sir. I made some general statements already, so I do not wish to speak on the rest of the amendments in relation to this.

Amendment carried; clause as amended passed.

Clause 152 passed.

New clause 152A.

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

Amendment No 5 [DepPrem–2]—

Page 88, after line 3—Insert:

152A—Amendment of section 8—Failure or avoidance of supplementary election

(1) Section 8—after subsection (1) insert:

(1a) If the returning officer declares the nominated candidate or candidates elected under section 25 but not all vacancies are filled, the council must appoint a person or persons (being an elector or electors for the area) to the office or offices that remain unfilled.

(2) Section 8(2)—after 'subsection (1)' insert:

or (1a)

I indicate that, similarly, this is to deal with the same necessary amendments to cover the Mitcham issue.

New clause inserted.

Clause 153.

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

Amendment No 110 [DepPrem–1]—

Page 88, lines 8 to 10 [clause 153(2)]—Delete subclause (2) and substitute:

(2) Section 9(6)—delete subsection (6) and substitute:

(6) Voting at a poll will close at the time determined by the returning officer.

The Electoral Commission of South Australia (ECSA) has requested the close of voting at both polls and elections to be at the time determined by the returning officer. I seek the members' support on that.

Amendment carried; clause as amended passed.

Clause 154 passed.

Clause 155.

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

Amendment No 111 [DepPrem–1]—

Page 88, lines 20 and 21 [clause 155(1)]—Delete subclause (1)

This is a technical amendment to clause 155(1). The bill proposes to close rolls 10 calendar days earlier than the current provisions, which mistakenly reduces the total period from 13 weeks or 91 days to 81 days. Following discussion with the Electoral Commissioner and at the Electoral Commissioner's request, this amendment will continue the current 13-week requirement in the act.

Amendment carried; clause as amended passed.

Clauses 156 to 158 passed.

New clause 158A.

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

Amendment No 6 [DepPrem–2]—

Page 90, after line 11—Insert:

158A—Amendment of section 25—Uncontested elections

(1) Section 25—after subsection (1) insert:

(1a) If—

(a) after the close of nominations for a designated supplementary election and before the commencement of the issue of voting papers under section 39(1) for that election, another vacancy occurs in the office of a member of the council (other than in the office of mayor) (the subsequent vacancy); and

(b) it appears that the number of candidates nominated to contest the election does not exceed the number of persons required to be elected,

the returning officer must declare the nominated candidate or candidates elected.

(2) Section 25(2)—after 'subsection (1)' insert:

or (1a)

(3) Section 25—after subsection (2) insert:

(3) In this section—

designated supplementary election has the same meaning as in section 6.

This amendment is the concluding paragraph necessary to deal with the election vacancy issue aforementioned.

New clause inserted.

Clause 159 passed.

Clause 160.

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

Amendment No 112 [DepPrem–1]—

Page 91, after line 13—Insert:

(2) Section 28—after subsection (2a) insert:

(2b) If the Supreme Court is satisfied beyond reasonable doubt on application by the Electoral Commissioner that published electoral material contains a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent, the Court may order the publisher to do 1 or more of the following:

(a) withdraw the material from further publication;

(b) publish a retraction in specified terms and a specified manner and form.

This amendment has been requested by the Electoral Commissioner and it mirrors similar provisions under the Electoral Act 1985.

Amendment carried; clause as amended passed.

Clauses 161 to 164 passed.

Clause 165.

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

Amendment No 113 [DepPrem–1]—

Page 91, lines 37 and 38 [clause 165(1)]—Delete subclause (1)

This is an amendment that is consequential on amendment No. 114.

Ms STINSON: I understand that this one relates to the next amendment, which is amendment No. 114. As I understand it, this one relates to assisted voting. Hopefully I am in the right place; the Attorney is nodding, thank you very much. I just wondered why this is being removed and where this will go or whether this is a consequence of ECSA taking over the process of local government nominations and elections. But I can see that the clause will be opposed in amendment No. 114, so maybe that is part of the answer. I am really after a bit of general explanation as to what this one is doing.

The Hon. V.A. CHAPMAN: My understanding is the reason this is in here is that the original indication was that there would be a provision for elections under the state Electoral Act. Because that has not been progressed, this gets dismantled as part of it. Otherwise, there would be an unfair, unreasonable burden on the councils to have to deal with that.

Ms STINSON: Thank you; I am glad I asked that question. In light of that response, is there an intention by the government to reinsert this dependent on what happens with the state level reforms? To add to that, obviously with assisted voting I do not think there would be too many people who would be opposed to some of the things that are being laid out here. I am wondering if it will be catered for here or in some other way. Will the parliament have to revisit this in future?

The Hon. V.A. CHAPMAN: It may have to. It is not something I have addressed at this point, but it is a reasonable question and we will see as we progress if that is necessary. It is not something that I would insist be put back in, or propose to be put back in, without consulting with the LGA and councils because, again, this could create extra expense for them that they may not want to have to meet.

Amendment carried; clause as amended passed.

Clauses 166 and 167 passed.

Clause 168.

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

Amendment No 114 [DepPrem–1]—

Page 92, line 32 to page 94, line 22—This clause will be opposed

This comes to the substantive removal of dealing with assisted voting, which we already canvassed when we were dealing with the inconsequential matter.

Clause negatived.

Clauses 169 to 179 passed.

New clause 179A.

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

Amendment No 115 [DepPrem–1]—

Page 100, after line 7—Insert:

179A—Amendment of section 82—Certain gifts not to be received

Section 82(3)(b)(i)—delete ', other than a registered industrial organisation'

This reflects a reasonable expectation that all campaign donations should be appropriately disclosed, regardless of the source of donation.

Ms STINSON: We will reserve our position on this and will get some more information about what this actually does for registered industrial organisations. I flag that if there is an issue here we will raise an amendment in the other place.

New clause inserted.

Clauses 180 to 188 passed.

Clause 189.

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

Amendment No 7 [DepPrem–3]—

Page 102, after line 12—Insert:

(a1) Section 21—delete 'The' and substitute:

Subject to this Act, the

Amendment No 8 [DepPrem–3]—

Page 102, line 27 [clause 189(2), inserted paragraph (a)(vi)]—Delete 'advise' and substitute 'liaise with'

These are technical amendments which mirror the amendment proposed to section 25, namely, the specific role of the principal member under the Local Government Act.

Amendments carried; clause as amended passed.

Clause 190.

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

Amendment No 116 [DepPrem–1]—

Page 103, lines 22 and 23 [clause 190, inserted paragraph (a)(ix)]—Delete:

'setting and assessing performance standards to be met' and substitute:

the oversight of the chief executive officer's performance

Amendment No 117 [DepPrem–1]—

Page 103, after line 26—Insert:

(2) Section 22(1)(b)—after 'ratepayers' insert:

of the Council

As per the amendments to section 59 of the Local Government Act, this proposed amendment is to clarify that all council members have responsibility to participate in the oversight of the CEO performance under the council's contract with the CEO, rather than a direct role in setting and assessing performance, as not all members may be directly involved in this task.

Amendments carried; clause as amended passed.

New clauses 190A and 190B.

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

Amendment No 118 [DepPrem–1]—

Page 103, after line 26—Insert:

190A—Amendment of section 24—Allowances

(1) Section 24(1)—delete 'section' first occurring and substitute 'Act'

(2) Section 24(9)—delete 'under a scheme prescribed by the regulations'

(3) Section 24(13)—delete 'Minister from time to time after consultation with the President of the LGA and the President of the Tribunal' and substitute:

President of the Tribunal after consultation with the LGA

(4) Section 24—after subsection (13) insert:

(13a) The LGA may recover the reasonable costs incurred by the Remuneration Tribunal in making a determination under this section as a debt from the Council.

190B—Amendment of section 27—Role of chief executive officer

Section 27—after paragraph (j) insert:

(ja) to ensure that effective policies, systems and procedures are established and maintained for the identification, assessment, monitoring, management and annual review of strategic, financial and operational risks;

(jb) to report annually to the relevant audit and risk committee on the Council's internal audit processes;

This amendment ensures the City of Adelaide Act mirrors the amendments to section 76 of the Local Government Act relating to the determination of council member allowances and arrangements for the payment of a reasonable cost to the tribunal in making a determination.

New clauses inserted.

Clause 191.

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

Amendment No 119 [DepPrem–1]—

Page 104, line 7 and 8 [clause 191(3)]—Delete subclause (3)

Amendment No 120 [DepPrem–1]—

Page 107, after line 38—Insert:

(17a) Schedule 1, clause 22, definition of registered industrial organisation—delete the definition

Amendment No 121 [DepPrem–1]—

Page 110, after line 7—Insert:

(23a) Schedule 1, clause 26(3)(b)(i)—delete ', other than a registered industrial organisation'

These are technical amendments to mirror amendment No. 11 to the Local Government (Elections) Act. Clause 191(3) of the bill proposes to close rolls 10 calendar days earlier than current provisions, which mistakenly reduced the total period from 13 weeks (91 days) to 81 days. Following discussion with ECSA, this amendment will continue with the current 13 weeks requirement in the act, and of course the Electoral Commissioner supports the retention of the current 13-week period. Amendment No. 121 proposes to remove 'registered industrial organisation' from section 26 of the City of Adelaide Act. The final amendment reflects the reasonable expectation that all campaign donations should be appropriately disclosed, regardless of the source of the donation.

Amendments carried; clause as amended passed.

Clauses 192 and 193 passed.

New clause 193A.

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

Amendment No 122 [DepPrem–1]—

Page 111, after line 24—Insert:

Part 6A—Amendment of Independent Commissioner Against Corruption Act 2012

193A—Amendment of section 5—Corruption, misconduct and maladministration

Section 5(6)—delete subsection (6) and substitute:

(6) A reference in subsection (3) to a code of conduct does not include—

(a) any statement of principles applicable in relation to the conduct of members of Parliament; or

(b) the behavioural standards, a behavioural management policy or behavioural support policy, or the employee behavioural standards under the Local Government Act 1999.

(7) To avoid doubt, the integrity provisions of the Local Government Act 1999 (within the meaning of section 4(1) of that Act) will—

(a) as they relate to members of councils, be taken to be a code of conduct for members of councils for the purposes of this Act; and

(b) as they relate to employees of councils, be taken to be a code of conduct for employees of councils for the purposes of this Act.

This amendment is requested by the former Independent Commissioner Against Corruption and is also supported by the Ombudsman. It is necessary to clarify that council member and employee integrity provisions are taken to be a code of conduct for the definition of misconduct under the ICAC Act, whereas behavioural standards and council behavioural support management policies are not. This will help to ensure that behavioural matters are not referred to the Office for Public Integrity but to the relevant council for resolution and also that integrity matters are considered as misconduct.

New clause inserted.

Clauses 194 to 197 passed.

Clause 198.

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

Amendment No 123 [DepPrem–1]—

Page 112, line 19 [clause 198(1), inserted subsection (1)(a)]—After 'body' insert:

and the controls exercised by a publicly funded body in relation to the receipt, expenditure and investment of money, the acquisition and disposal of property and the incurring of liabilities

Amendment No 124 [DepPrem–1]—

Page 113, line 2 [clause 198(4), inserted subsection (1c)]—After 'provided' insert:

by the Auditor-General or an authorised officer

Amendment No 125 [DepPrem–1]—

Page 114, line 2 [clause 198(8), inserted subsection (4)]—After 'body' insert:

, publicly funded project or local government indemnity scheme

Amendments Nos 123, 124 and 125 are all technical amendments that I think were initiated by the Auditor-General.

Amendments carried; clause as amended passed.

Clause 199 passed.

New clause 199A.

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

Amendment No 126 [DepPrem–1]—

Page 114, after line 28—Insert:

199A—Amendment of section 36—Auditor-General's annual report

(1) Section 36(1a)—after 'documents' insert:

or information (including data)

(2) Section 36(3)—after 'documents' insert:

or information (including data)

(3) Section 36(4)—after 'A document' insert:

or information (including data)

(4) Section 36(4)—after 'the document' wherever occurring insert in each case:

or information (including data)

This is a technical amendment requested also by the Auditor-General.

New clause inserted.

Remaining clause (200) and title passed.

Bill reported with amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (21:28): I move:

That this bill be now read a third time.

I wish to thank all members of the committee and also of the parliament who made a contribution to the consideration of this matter. I wish the bill safe and successful passage through the other place. I note that the opposition have indicated that there may be some matters where they may consider amendment, but I think it is fair to say that the members of the LGA on behalf of a number of the councils have put in a lot of work over the last two years to bring together a number of these reforms. I congratulate them on that. I thank the former minister for advancing a very lengthy consultation process to ensure that this be done as best as it could be done.

Other issues that were otherwise dormant have become awakened during this process and I wish to briefly reference them. One relates to the rating of electricity generators. This arises out of the fact that a number of generators, for solar and wind in particular, are operating in our regions of South Australia in the South-East, the Mid North and even over in your region, Deputy Speaker. The question is whether the electricity generators and/or landowners who operate these facilities ought to be making a contribution to local government, in particular their local councils. It is a matter about which I have opened the discussion with the Local Government Association and various pertinent mayors who have this issue in their districts. They have alerted me to a model that operates in Victoria.

I note that if there is to be any rating on somebody or a party related to these energy generators, it would require amendments to the Electricity Corporations (Restructuring and Disposal) Act 1999. This is an act I do not think I have even read, but it is one which is committed to the Treasurer, because I regulate everything and he taxes everything, so he gets the responsibility for this piece of legislation. I have also had with me the helpful advice of the Minister for Energy who is very cognisant of this issue. So I have indicated that we will progress discussions in relation to this. I propose working up generally a proposal to go to the Treasurer so that I can discuss the matter with him. If we can come to some resolution on how we advance that, we will continue to work on that.

The second matter that has been raised is the question of online voting. Both the LGA and at least one council have raised with me this question of online voting. I would have to say that the Adelaide City Council has a rather complicated process of registration of the voters, let alone voting. They seem to need a lot of help in relation to reforms that they will probably need. But, again, we will have a look at this.

I have referred anyone who has been interested in this option to have discussions with the Electoral Commissioner. He is responsible for all the electoral matters and he does keep an eye on all jurisdictions that develop electronic voting, electronic aids for voting and online voting. These are all initiatives which are in various areas of either embryonic or mature advancement around the world, so it is something we clearly have to look at.

We only have to look at the presidential election in the United States and the Florida disaster when they tried to use computer printed forms. I think they ended up in the Supreme Court for about three or four months in the United States and there was no president for a long time. In any event, we need to keep an eye on those things and we are happy to see how we might be able to remain in the 21st century with these things. We will look at those technical changes and have further conversations with the Electoral Commissioner.

With that, I do not think I can add anything other than to congratulate the whole of the local government sector and its members. It is a great new portfolio to be in. I feel very proud to have responsibility in relation to this area and to oversee what I think have been long-awaited reforms and I wish local government well with the swift passage of this bill.

The DEPUTY SPEAKER: Does the member for Badcoe wish to speak?

Ms STINSON (Badcoe) (21:33): I do wish to speak. Thank you, sir. I will try to be as quick as I can considering the hour, but there were a few things I wanted to say. At the end of all this, of course, we have ended up with a bill that is remarkably different from what it looked like three weeks ago for all the reasons I detailed in my earlier contributions.

Local government is a vital level of government. I, of course, am a very new shadow minister but I am already enjoying working in this area and I look forward to continuing to examine the issues that have been brought to light by this bill and by the broader consultation that we, as a Labor team, have been doing. Obviously, in my role as the shadow, I will continue to look at what improvements can be made and how we can, as an opposition—and, hopefully, maybe in the future as a government—contribute to ensuring that local government is run in the best possible way it can be with the best possible level of service for ratepayers.

I want to thank the LGA. They have been incredibly helpful to me in getting across a very complex bill in a very short period of time. They have spent some considerable time with me explaining their perspective in relation to a number of these amendments. In particular, Matt Pinnegar, the outgoing president Sam Telfer—whom I wish all the best—and Andrew Lamb have really gone out of their way for me, and also for the former shadow minister and for other members of our team, in explaining what all this actually means to their members.

I do congratulate them. I congratulate them very warmly on their very persuasive arguments which they have put to me and members of my team and which have certainly had an impact on this government. As I mentioned, we have seen quite a change over the last few weeks in relation to a large volume of amendments that have been put. I congratulate them on the fine work that they do for their membership.

I would also like to thank the ASU and AWU representatives, Abbie Spencer and Peter Lamps, who have also given me a lot of their time, particularly in relation to the amendments to do with workers' rights and what council workers should expect in their workplaces, and the important protections that we as a parliament should be providing to them. I thank them for their work on behalf of their members as well.

I would like to also thank the many CEOs and mayors, whom I will not name, who have approached me, many to congratulate me on my appointment only recently and also to give me their perspectives about particular elements of the bill and the amendments. I look forward to working with all of them, both those four councils that are within my electorate of Badcoe and also, much more broadly, the 68-plus councils across South Australia.

I would also like to thank the department and ministerial staff, who have put a lot of effort into this. I thank them for at least trying to answer some of my maybe silly questions and a lot of my very detailed questions in several briefings that we have had. I make special mention—because I think she does deserve special mention—of Alex Hart, who is a complete and utter gun and so impressive when it comes to local government legislation. I thank her for the many hours she has put in over the months and even years in relation to this.

I would also like to thank Tony Piccolo and his staff. He was, obviously, the shadow minister for local government before me and has been incredibly helpful to me. Obviously, he is out there now fighting the good fight to win the seat of Schubert. I can see now, having gone through all of this, why he may not have some spare moments in his day to do both this and campaigning in a very difficult to win seat, so I wish him all the best.

I would also like to thank the Electoral Reform Society for meeting with me and presenting their views. Last, but absolutely and certainly not least, I would like to thank Brigid Mahoney and Grace Nankivell in my office, who have done a splendid job getting their head around a very difficult area. It has been a baptism of fire, but they have done an excellent job and I am so lucky to have them.

Bill read a third time and passed.


At 21:39 the house adjourned until Wednesday 14 October 2020 at 10:30.

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