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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-11-29 Daily Xml
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Bills

Automated External Defibrillators (Public Access) Bill

Committee Stage

In committee (resumed on motion).

Clause 4.

Mr TELFER: Minister, thank you; I appreciate this process. Particularly looking at the meaning of 'designated building or facility', there is a lot within these definitions that will fit under the jurisdiction of the state government. There will obviously be a significant body of work and also cost to the state government when it comes to the installation in areas such as schools and tertiary institutions, and we are looking at correctional institutions and the like. Is there any insight into the expected cost or the amount the state government will budget to install these if this piece of legislation is to pass?

The Hon. C.J. PICTON: I think I answered this a bit before. There is a combination of places where AEDs are already installed, there are places where we are confident they will be able to be installed within the existing budgets and then there are places where we believe additional funding will be required. Off the top of my head, I believe over $7 million will be provided over four years in terms of those areas where there will need to be additional funding provided.

Mr TELFER: I am curious. Obviously, we have already had the discussion that there will be areas that have to have more clarity delivered to them through the regulations, but is it envisaged that temporary structures, which otherwise fall within the definitions, will be caught by the ambit of the bill, such as temporary stages constructed to hold theatrical performances or temporary tent arrangements or the like? Are they going to fall within this legislation if it is temporary rather than permanent?

The Hon. C.J. PICTON: As you said, there is always the ability for us to have regulations to make things clearer. In relation to a temporary stage to be established, in my mind it would not fit within the definition of a theatre or other venue, but if that is something of concern that is raised then, during the three years this will be considered before the implementation date, we would be happy to consider whether there is a need for any further regulation in that regard.

Mr TELFER: Has the minister considered a more reasonable risk-based approach that considers the specific locations where AEDs can do the most good and balances it out with the significant cost of installing and maintaining AEDs in what may be considered by some to be low-value locations as far as potential outcomes?

The Hon. C.J. PICTON: I have considered the bill that has been presented to us from the Legislative Council that was drafted and moved by the Hon. Frank Pangallo after significant work on his behalf. After having considered this legislation, it is my view that it should be supported, but it is open for members as to whether they have a different view in that regard.

Mr TEAGUE: I hear the minister observe that he has done his best with the legislation as presented and as prepared by the Hon. Frank Pangallo in another place. Understanding that context, perhaps a first question is about whether we have the capacity for buildings, facilities or classes of them being prescribed by regulations. Does the minister have any particular building or class of building or facilities on the plan as a result of having reviewed the legislation? These are some that might be included in regulation. On the flipside, is there any indication from the government about ruling that out for the time being in the light of the research that has been done in preparation for bringing the bill to the house?

The Hon. C.J. PICTON: There is no further consideration on my behalf or the government's behalf in relation to additional areas where there would need to be movement, other than the areas that are defined in the legislation. As has already been discussed, there were some concerns raised about what was the previous paragraph (k), which the Hon. Frank Pangallo sought to remove from the bill. I think that was broadly supported in terms of removing that section.

Mr TEAGUE: So we understand, in clause 4 we are dealing with designated buildings or facilities, and they are broadly in a class of public facing, community, semi-public or of that nature. I suppose there is always an issue where there is a comprehensive codification process, or an attempt to, that you do not leave some out or that you talk in colloquial terms about buildings of a certain class that might be recognised as such but there is perhaps a lack of particularity.

It is with a particular concern, I suppose, to what is going to be the hammer fall in 2026 and possibly with respect to some of these designated buildings in 2025. They are going to need to know whether they are caught well and truly—that is, the clause 4 buildings—and their only guide in many respects is undefined terms that might be readily understood in the ordinary sense, but there might be room as to whether or not a building meets the descriptor.

In terms of the time between now and 2025-26 and otherwise, does the government have any plans to assist the community to determine how and, if so, what plans might need to be taken that they might be needing to understand that they are relevantly responsible for a designated building, and would any such engagement be commencing immediately or shortly thereafter the passage of the bill?

The Hon. C.J. PICTON: I have already made clear that we believe that we will need to undertake communications in regard to making sure that people are aware of their responsibilities under the legislation, and I would hope that that would start soon. Obviously, one of the elements of passing legislation this week is that it gives people a maximum amount of time before that implementation date, 1 January 2026, to be aware of their responsibilities from that date.

Mr TEAGUE: It might be a clause 12(1) point or a clause 14 point, and we can get to that as we do, but what we do not see in the bill, and tell me if I am wrong, is that unlike some legislation previously or might commonly be applied there is no internal process for the determination of whether or not a building or a facility is meeting the definition of a designated building or facility for the purpose of clause 4.

Clause 5 is a bit of a different category because it is slightly more prescribed in terms of a change of circumstance. Can the minister indicate what process a person or group of persons, association or organisation might take, or might need to take, in the event that there is a question to be determined about inclusion or otherwise of clause 4? I could give you examples, but I will not trouble you with them. Paragraph (j) states 'another venue where artistic or cultural performances are provided'. There might be room for all kinds of questions about what is included.

I am looking to understand and work with the legislation. Many of those subcategories are determined by reference to their descriptor in relevant legislation but not all of them, so can any light be shed on not so much ensuring that there is a comprehensive outcome now, but what process does the government anticipate or could indicate to the committee now will need to be followed by a party who is either not sure or in the unfortunate circumstance of challenging that question in the face of attracting a penalty pursuant to clause 7?

The Hon. C.J. PICTON: I think that this will be a combination of not only our providing communications in this regard and making clear provisions of the bill but also making sure that, if there are issues that arise and questions and problems, we do have the ability to make regulations over the course of the next three years.

It is helpful for the member to highlight paragraph (j) as an example where he has some concern in that regard. I am less concerned when it comes to that. I feel that people who provide those appropriate venues would understand who would be covered. I think it is important that we have communications that broadly make it clear, but if there are particular issues then obviously the regulation-making power allows us to address those over time.

Mr TEAGUE: I know I am out.

The CHAIR: You have asked a supplementary as well.

Mr TEAGUE: Have I?

The CHAIR: You used that up as well, even though there is not an entitlement to it. Resume your seat, member of the Heysen.

Mr TEAGUE: I will provide the examples subsequently.

Clause passed.

Clause 5.

Mrs HURN: I have a question for the minister in relation to the 600 square metres provision. Are you able to outline for the benefit of the house what consultation process was gone through to land on that kind of footprint and whether there was any discussion to giving a larger footprint or, indeed, a smaller one?

The Hon. C.J. PICTON: I again reiterate my comments previously in regard to the consultation undertaken by the Hon. Frank Pangallo. I am happy to take it on notice and follow up with him in regard to his drafting of the legislation. However, I am sure he would be happy to chat to the member herself in that regard. I am not wanting to speak on his behalf, but I suspect it was regarded that this was an appropriate size level to ensure a balance that would meet the needs in terms of providing those AEDs within a reasonable distance of time to make sure they could be used.

Mr TEAGUE: First of all, I have a question in terms of my understanding of the purpose of clause 5. Unlike clause 4, clause 5 is dealing with buildings used for commercial purposes that become prescribed buildings if certain changes occur or if certain actions occur in relation to those buildings. If they are not otherwise a designated building for the purpose of clause 4, a building that is on land used for commercial purposes, as I read it—and regardless of the size of the building—will not attract the operation of the act, pursuant to clause 5, unless there is a change of use or major works that meet the definition. Is that understanding of the way that works correct?

The Hon. C.J. PICTON: Yes, that is right, unless under paragraph (c) it is prescribed by the regulations. To pre-empt any question, we do not have any plans that prescribe anything else under that clause.

Mr TEAGUE: Thank you for that indication. In clause 5(b)—and clause 5(a) for that matter, as well—there is reference to the threshold of 600 square metres being the relevant floor area for the purposes of assessing the relevant size where there is a change in the land use to use for commercial purposes. Perhaps I could give an example, and I understand this may be typical of lots of such facilities around the state.

There is a poultry facility near Murray Bridge where I understand there are several sheds, each larger than 600 square metres. They are production facilities, and that is where the business of production occurs and, I am told, again may be typical of a business of this kind. The workers, the people, those who might benefit from the AED, are routinely located some distance away in a much smaller building.

To take that as a worked example, in circumstances where there is a need for rebuilding, redevelopment, extension or just general maintenance that on that scale might tip over the major works definition—and, bearing in mind, do nothing, they will not for the moment attract the clause 5 definition—when they do those works, and that is predictable enough if they stay in business, then on the face of it all of a sudden each of those buildings on the site, if one read the whole thing literally, as you do, they are facing, apart from anything else, a great big penalty, so you need to get it right.

Each time that happens, there is then the attraction of the prescribed building definition, it would appear, so you could have a situation in which there are some buildings on a site that are not prescribed, all for the time being, and works are done that affect the whole site. Would, as a result, one of those buildings or more than one or all of them together attract the clause 5 definition in that case if it is defined to be a facility, as the clause possibly embraces? Then, in the case of nine such buildings, are they needing to be careful that they comply in relation to installation obligations for nine such AEDs and risk a penalty in respect of any one or more times that they are short of installation?

I do not mean to spin the wheels on all the various possible outcomes, but in the context of the way that the prescribed building definition works, and I suppose it is a form of grandfathering, surely the government has contemplated the way in which that future works and particularly in relation to the major works definition, which is something I would expect all businesses would be contemplating on any kind of five to 10-year rolling approach, so is there any light the minister might be able to shed in the context of that particular worked example?

The Hon. C.J. PICTON: Certainly, the advice I have is that the example being given of a poultry production facility would be a primary production facility and not covered by a commercial purpose to which this clause applies. The reasonable interpretation of commercial purposes would be retail/office type accommodations, not primary production or poultry production facilities. After there would be a change in use or significant works, construction or major works, then there would be the requirement to comply with the installation that we will get to at some point in clause 7.

Mr TELFER: Obviously, there is no definition in the clause we spoke about earlier about what the definition of commercial is. I took it as meaning a commercial business, an operation, rather than what necessarily the land designation was or something like that. Is there going to be within the regulation a greater definition of exactly what a building on land used for commercial purposes is within the regs? I think that there is the potential there for that ambiguity.

The Hon. C.J. PICTON: My view, and the advice I have received, is that primary production would be seen quite differently from commercial in most regulatory forms, hence I am not sure that there would be the confusion that has been suggested. We will certainly consider that over time if there is a need for it.

Mr TELFER: For further clarification, obviously I am well aware of the designations under the planning act, and 'commercial' has a clear definition there. Another one that is predominant is 'industrial'. Would you envisage that 'industrial' would be coupled in with 'commercial'? There would be examples in reflecting the practical example the member for Heysen gave about a primary production facility that could potentially be a comparable example in an industrial area.

The Hon. C.J. PICTON: I think the view from the government's consideration has always been that this is a consideration of commercial similar to, as the member outlines, what we would see in the Planning, Development and Infrastructure Act in relation to commercial that would not necessarily include industrial premises as part of that. That is certainly something we could consider over time. If there were a need to do that, we could certainly consider it as part of the regulations.

Mr TEAGUE: Let me continue on from the member for Flinders' point. To make good the point about that particular worked example, the definition is not focused on the building. The legislation is focused on the installation on a building or facility of a portable device that is defined as an AED. The definition in clause 5 is concerned with the land. Again, I do not want to spend time rehearsing it; it is a straightforward point. Somebody who is otherwise getting on with their life is all of a sudden going to be subject to the legislation, and they are far from a position of equal bargaining power in terms of working through what will and will not be regarded sensibly by those who might be enforcing it.

In clause 5(a) the legislation talks about a building that is on land used for commercial purposes. Unless one wants to take a fairly artificially prescriptive use of the word 'land' for these purposes, being the particular area the building itself is constructed on, which is not a term used when talking about land, one might be talking about the zone or the owned property or the title even. But the premises might be over a range of conjoined titles that conduct a similar business in which it might be said that some of the activity is primary production or non-commercial but might be linked directly to a shopfront that is.

That could happen in a whole variety of different circumstances, not only primary production or related agricultural production on the land where there is that interaction, not only of the staff working at the premises, but if there is retail or other hospitality or visitation, for sensible purposes, related to those who visit on the site and either engage in the retail side or other activity, the definition in clause 5 would catch, on the face of it, the building on the land that is used for the commercial purpose. Those two are not separated out for the purposes of the building. The minister has given an answer about the primary production purpose perhaps of the large sheds in the worked example I have given.

On the face of the clause, is it not the case that those buildings, subject to the grandfather arrangements, might become subject to the installation obligation because of paragraph (a)? If not, why not?

The Hon. C.J. PICTON: I feel like we are entering the John Hewson definition of a cake territory to some degree.

Mr Teague: That was a proportional calculation.

The Hon. C.J. PICTON: The member for Heysen says that was a proportional calculation. I understand that the member for Heysen has concerns about this section. I do not share the same concerns. It appears to be logical in terms of its interpretation to me. If there is an amendment that he wishes to move, if there is a consideration of other wording, then certainly we would take a look at it, but it reads relatively plainly to me in my interpretation of it. As I have said on a number of clauses, if issues arise over the period of the implementation that we have on this for three years, then we would certainly seek to clarify those issues in the regulations.

Mrs HURN: Minister, I have a question of clarification in relation to churches across South Australia. Naturally this is one that I think could be asked in this clause or the previous clause. I would not have thought that a church is under a public building or a facility, but you may have a different interpretation, so if you could elaborate whether AEDs will be required in churches across South Australia that would be fantastic.

The Hon. C.J. PICTON: The advice I have—and it is certainly my interpretation—is that our reading of this is that they are not intended to be covered. Certainly they are not 'commercial purposes', certainly they are not specifically listed within clause 4, which we have passed, nor would I see that they necessarily fall under the definition of a public building to which the public has access.

In my view, it would not be that you could define them as all the public has access to a church, and certainly there are a number of churches where that is not true. Unless the member has a particular set of words in here that she is concerned they do fall under, it is not apparent to me that they do.

Clause passed.

Clause 6.

Mr TELFER: Has an estimation been made of the expected annual costs of the Crown in complying with the bill and, if so, what are these costs?

The Hon. C.J. PICTON: In relation to the Crown, the King, in the interpretation of this section, the advice I have is that there are some costs that were factored into that over $7 million over four years that we are committing as part of the passage of this legislation for a number of areas, particularly in terms of where there will be maintenance, etc. We are particularly looking at some public transport and also some of the CFS fleet.

However, most of the ongoing costs—after the initial purchase, obviously—would be met by agency budgets, as is currently the case for the many agencies that already have defibrillators. I can personally attest to the fact that on level 9 of the City Centre, where my ministerial offices are, there is a defibrillator. Presumably the Department for Health has a program where these are maintained and replaced within existing budgets.

Mr TEAGUE: The carving out of criminal liability on the Crown is not expressed in so many words in relation to those others that are caught by the obligations under the act, primarily on the installation, maintenance and testing and so on. Is it to be understood then—and surely not—that a responsible person in a public building, so in the category that commences in 2025, is not to be liable pursuant to any of the subsequent provisions? What is the force and relevance of that carve-out?

The Hon. C.J. PICTON: The advice I have on this is that it is a relatively standard clause. The best evidence I can attest to on that is that I do not think the Hon. Frank Pangallo would be seeking to do the government any favours or would have been trying to get the government out of anything when he drafted this bill originally. I suspect that this is a clause that fits within a number of different acts and has been imposed here on a standard basis.

Clause passed.

Clause 7.

Mrs HURN: I move:

Amendment No 1 [Hurn–1]—

Page 5, line 26 [clause 7(2), penalty provision]—Delete the penalty provision and substitute:

Maximum penalty: $2,000.

Expiation fee: $500.

This amendment reduces the maximum penalty for failing to install an AED from $20,000 to a maximum of $2,000 and also allows for an expiation fee of $500. The opposition believes that our proposal of a maximum penalty and an expiation strikes the right balance of acting as a disincentive whilst also not being onerous. I point out that this expiation is more in line with failing to install a smoke alarm, which is a similar life-saving device.

By way of comparison, under the Planning, Development and Infrastructure (General) Regulations 2017, a failure to install a smoke alarm in a house or a dwelling could attract a maximum penalty of $750. When you compare that with the maximum penalties outlined in this bill, they are quite onerous, so we believe that having these amendments considered by the house is a commonsense step.

We also believe that having an expiation regime, moreover, is quite a useful way of ensuring compliance with the system without having to overutilise the court system in South Australia. I encourage the government to consider these amendments very strongly and to consider them with the thought process of knowing that this is not too onerous, specifically with the comparison to the $750 that you are fined if you fail to have a smoke alarm in your house or dwelling.

The Hon. C.J. PICTON: I can confirm that the government have considered these amendments being moved by the member for Schubert and will not be supporting them, as we believe they create inconsistencies with the existing fire safety requirements that are outlined in the Planning, Development and Infrastructure Act 2016.

Mr TELFER: I rise to speak in support of the amendments. As I said in my second reading contribution, I think this process in particular needs to be one that the whole community comes along with. I think the amendments that have been put forward by the member for Schubert, with a maximum penalty of $2,000 and the capacity for an expiation of $500, strike the right balance between ensuring that there are disincentives for those who do not want to follow the rules and not being too onerous for those who may potentially inadvertently not be following a rule that they are unaware of.

We have already highlighted in some of the answers the minister has been giving to questions that there is certainly some ambiguity around the designation of buildings or facilities and who is required and who is not required to have an AED in place. I think that having a maximum penalty of $20,000 for a public building, a prescribed sporting facility, a school, a correctional institution and the like is out of balance with the expectations of my community and our communities around the state.

That is why I think this amount of $2,000 as a maximum penalty and the potential for an expiation of $500 gets that balance right. If people or organisations are looking to deliberately flout these incoming laws, they will obviously have the potential to be hit with a $500 expiation, which then can escalate, for those who are deliberately trying to contravene these laws, to a $2,000 fine. I believe that is a significant enough disincentive and wholeheartedly support these amendments.

Mr TEAGUE: I rise also to support the amendment moved by the member for Schubert just now, and I adopt and endorse and would seek to amplify the observations of the member for Schubert and the member for Flinders just now as well. I raise a couple of matters of both practice and principle in this regard. First of all, in the course of the committee process so far, we have navigated a space that includes the recent amendment of the commencement of this whole legislation from what was originally envisaged to be more or less straightaway to being in two waves—2025 and 2026—so there is a period of time before the operation of the legislation will commence, and that is noted. That is interesting.

With all the best continuing advocacy of those who have advocated effectively over many years the merits of the use of AEDs and the availability of them and community awareness and so on, together with whatever program the government might more publicly pursue over that period of time, it may have some benefit in providing the community more broadly with a sense of preparedness and a greater level of normality, I suppose, of the availability of installed AEDs across the range of what are going to be designated buildings and facilities and what are going to be prescribed buildings and facilities over that time.

However, what happens on commencement is a hammer fall and, all of a sudden, you go from zero compliance obligation to the risk of a maximum $20,000 penalty out of the blue. What there is not in this legislation, for better or worse, is a process of either warnings and working with and assistance, as it were, to provide context. It may be that, within the day-to-day workings of those who might be doing work to administer the provision of the act, there is such ameliorative work and awareness raising that precedes the application pursuant to enforcement provisions, but that is not to be found in the act.

We have a piece of legislation that, when it commences, is going to all of a sudden land a whole lot of the community into a space of significant financial jeopardy in what is a very wide range of different circumstances, one might conceive, that could arise and in circumstances where—again, it is what it is—there may be issues around the definition of the relevant building and whether or not the person is in fact caught by the obligations. However, hanging over that whole environment all of a sudden on day one will be this very large financial penalty.

As has been aired in a whole variety of different circumstances, you have on the one hand a really successful community campaign with a high public profile and a great deal of community goodwill that will drive more people and organisations to adopt and use these AEDs. On the other hand, you have this whacking enforcement regime that could, in the worst case, be a cause of such activities to shut down altogether.

There are plenty of organisations that operate in buildings that will become designated pursuant to clause 4. Much like the category of other duties and obligations that need to be weighed in terms of their relative proportionality, many of these, faced with the potential significant liability along these lines, will think very carefully about whether or not they continue. I sincerely hope and trust that they would, but it ought not, in my view, be a judgement that is weighed against the existential question of capacity for the potential liability, as opposed to awareness, obligation, yes, and a penalty that is sufficient to focus the mind without it coming in and being so large as to potentially threaten the existence of an organisation at one end.

To say one thing more about that, because it is a matter I have addressed in the context of sentencing and other matters where a set of particular circumstances is seen as driving a need to send a signal through an increased penalty provision as a means of sending a message, often there are, by the time you get to the most serious set of consequences associated with irresponsible behaviour, a whole range of other measures that ought properly be taken and significant penalties attached that would take over from the particular set of circumstances we are dealing with here.

Commencing in clause 7, this bill imposes a series of penalties at such a high level in terms of maximum. I recognise that it would arguably be ultra vires if it purported to set it out as any sort of fixed amount. It is a maximum penalty and, sure, there may be a response that a court dealing with this might come to a practice that might set a penalty in some of the circumstances I have described along the lines of what the member for Schubert is proposing, but there is nothing here that can give comfort to those organisations that might find that, no, the very opposite applies. On day one, there is a clear contravention of the relevant clause, the maximum penalty applies and it is the end of the show for that organisation.

For at least that variety of reasons, the amendment, insofar as it applies for present purposes to clause 7 but subsequently through the bill in like terms as we come to it, is a meritorious amendment that improves the bill. It ought to be supported and I commend it to the committee.

The committee divided on the amendment:

Ayes 14

Noes 24

Majority 10

AYES

Batty, J.A. Ellis, F.J. Gardner, J.A.W.
Hurn, A.M. (teller) Marshall, S.S. McBride, P.N.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Pratt, P.K. Speirs, D.J. Tarzia, V.A.
Teague, J.B. Telfer, S.J.

NOES

Andrews, S.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E.
Champion, N.D. Clancy, N.P. Close, S.E.
Cook, N.F. Fulbrook, J.P. Hildyard, K.A.
Hood, L.P. Hughes, E.J. Hutchesson, C.L.
Koutsantonis, A. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Pearce, R.K. Picton, C.J. (teller)
Savvas, O.M. Thompson, E.L. Wortley, D.J.

PAIRS

Whetstone, T.J. Malinauskas, P.B. Cowdrey, M.J.
Szakacs, J.K. Basham, D.K.B. Stinson, J.M.

Amendment thus negatived.

Mr TELFER: Minister, parliamentary counsel has a standard approach for setting fines and penalties so that comparable like-for-like offences across the range of legislation attract comparable like-for-like penalties. Is this $20,000 maximum penalty fine in the bill consistent with parliamentary counsel advice?

The Hon. C.J. PICTON: It was drafted by parliamentary counsel together with the Hon. Frank Pangallo before it was introduced into the other place both recently and in the previous parliament. I cannot speak to discussions that were held between the Hon. Frank Pangallo and parliamentary counsel but, from previous experience, parliamentary counsel are very good at making sure that there are appropriate considerations of penalty provisions. Certainly there are consistencies with this and, as I stated previously, a number of the provisions are in the planning and development act.

Mr TELFER: Upon the progression of this clause, the maximum penalty for contravening a requirement is $20,000. Once again, there is just a bit of ambiguity and uncertainty when it comes to the arrangements with this. I recognise that it is a maximum penalty for an offence. Is there an insight into the minister's thinking around this? Is this a maximum penalty for each omission?

For instance, if a council is required to install seven AEDs at each of the seven buildings surrounding a council-owned sporting oval or in a range of different council-owned buildings and the council fails to do so, will there be the potential for seven maximum penalties of $20,000 or is it a potential cumulative penalty of a maximum of $20,000? Is this something we are going to have to be dealing with on a facility-by-facility basis, or is a local government organisation or a business potentially going to receive a fine and that will serve as the warning for them to ensure that a proper installation happens in each of the appropriate facilities?

The Hon. C.J. PICTON: My reading of this is that people have to comply with the requirement under this section. The requirement under this section would be that you have two and if you do not have two then that is your requirement and hence there would be a penalty for failure to meet that requirement. From my reading of this and the advice I have received, there would not be individual different ones for each individual defibrillator because that is not the way this has been drafted.

Mrs HURN: Minister, can you outline first and foremost how the $20,000 maximum fine was determined? I ask that specifically in relation to following on from the avenue of questioning the member for Flinders was pursuing, which is how is it that the maximum penalty under the PDI Act for failing to install a smoke alarm attracts a fine of $750, yet the proposal under this bill is that there is a maximum penalty of $20,000? I think that has been one of the challenges, frankly, when it comes to this bill.

As we have outlined on this side of the house, we support the bill as a whole, but the penalties are certainly something that not only we on this side of the chamber have aerated but also the business community and indeed lots of sporting organisations and those types of things have fed through local members of parliament. I am just really after a clarification on how the $20,000 maximum fine was landed on. Also, can the minister elaborate on how he weighs up a $20,000 maximum fine for failing to have an AED but a $750 fine for failing to have a smoke alarm in your house.

The Hon. C.J. PICTON: I reiterate my previous answer in relation to this question, and as has been previously discussed in the other place, there are fire safety requirements in the Planning, Development and Infrastructure Act that this is aligned with and clearly this is a maximum penalty that would be in place. I think the evidence is that it is very rare that those maximum penalties necessarily are put into action.

Again, this is a clause that was drafted by the Hon. Frank Pangallo. It has been circulated widely over a number of years. I certainly have not heard the level of concern that the member is referring to and I certainly have not heard that concern in relation to other requirements under fire safety regulations in the Planning, Development and Infrastructure Act that similar penalties would apply to.

Mrs HURN: For the benefit of the minister, it was advised by the honourable member's office that these penalties are based on section 157 of the Planning, Development and Infrastructure Act 2016. That applies to the owner of a building failing to comply with a notice relating to the adequacy of fire safety in that building. I think that arguably they are not comparable provisions, which is why those on this side of the house have put forward what I would refer to as really commonsense provisions.

The minister says that this is a maximum penalty and that often they are not pursued. I think that really defeats the purpose of the Hon. Frank Pangallo in the other place, where he does want there to be an incentive. If there is no option for an expiation, for instance, that we have put forward, how does the government plan on policing compliance? What is that avenue, or is it just a bit of a slap on the wrist and, 'You haven't installed an AED, so we are not going to take you to court because that's the maximum and we don't think it's reasonable that you pay $20,000?' What is the mechanism then for ensuring that all the prescribed buildings and facilities actually do comply?

If the point has already been conceded that it is the maximum penalty that is not going to be pursued, then how are they going to be policed? That is my question: how is it that the government and agencies are going to police for compliance?

The Hon. C.J. PICTON: I think I might have been slightly verballed. I do not know if I said that it would not be pursued; I think I said that it is not always applied by the courts. They are two very different things. We have two arguments being put forward by the opposition: one that it would be a slap on the wrist and the other that it would be too harsh. I think the answer is probably somewhere between those two allegations.

Mrs HURN: You have advised the committee that it is not likely that they are pursued for the $20,000, so my question is: if it is not pursued, then how is it that you get these organisations to comply with the installation of an AED? That was my first point. My second point, which has not yet been answered is: what is the mechanism by which these will be policed?

We have been through what all the prescribed buildings are. We know that we have public buildings, schools, and a whole range of other designated facilities: correctional institutions, retirement villages, caravan parks, residential parks, the Casino and other gambling. Who is ultimately responsible for ensuring compliance with the installation of the AED?

The Hon. C.J. PICTON: In relation to where the compliance sits, that is something the government will be considering between now and when the legislation comes into operation in three years. Obviously, there needs to be consideration in terms of which agencies will look after compliance and have responsibility for that.

It is also important to bear in mind that there is also, as an element of this, a registration process that would be in place under the bill. That would enable us to understand where there are failures to register and where we do not have awareness that there are defibrillators in place. That would enable the government to undertake reminders, communication and education with those people before having a heavy-handed approach of automatically going to fining, to make sure we can work with people to implement that and have those protections in place. I suspect that it would only be in circumstances where there is a clear unwillingness to comply and a lack of action following education and reminders that action would be taken in relation to penalties.

Mr TEAGUE: That is a particularly helpful indication in a way from the government, but it rather highlights the gap that is in this particular legislation in that, as I have said maybe somewhat dramatically a couple of times during the course of this committee, the way the legislation works is that on commencement there is a hammer fall.

There is no provision, as the member for Schubert has indicated, on the comparative of a notice, failure to comply with notice, significant penalty, nor is there provision in the act for assessment of register, go-round reminder. All those things might well happen in practice, but they cannot happen at least until 2025. In terms of the way that the transition provision in the schedule works, it is not coming into effect in relation to those buildings until 2026, so there would be no occasion to remind anyone of an obligation because it has not arisen yet.

So there is neither the occasion for the compiling of the register, and therefore reminding by reference to omission, nor is there the occasion for the issuing of a notice, failure to comply with which constitutes the offence. We have neither of those two which might provide some combination of notice and preventative action. It is just that one day you do not and the next day you are subject to this particularly high penalty. Those of us on this side of the house have made it plain that that is a problem.

We are here with the benefit of the government's sponsorship of the bill that has all kinds of merits in terms of its outcomes—the wider availability of these AEDs—but unfortunately a legislative mechanism, wittingly or unwittingly, that exposes this very broad range of the community to this very substantial penalty, and it is not just in these circumstances of the installation obligation in clause 7.

It is encouraging to hear the government indicating that between now and the commencement of the legislation there would be some serious consideration around those practicalities, but here we are now. The best we can do is put that on the record. We can move an amendment. We have had the result of a vote on that proposed amendment, and here we are.

The minister has made clear that he is alive to this range of circumstances that has been given here in the course of the committee, so I would simply add my voice to those urging that that work be done in what I think are going to be amending provisions in due course, should that be the outcome of that consideration. I very much urge that that be given priority, particularly in the period prior to the commencement of the bill should it pass following this committee process.

Mr TELFER: I seek some clarity, especially for me in my role as shadow local government minister. There is a definition in clause 7 around responsibility, as follows:

(1) The owner of—

(a) a designated building or facility; or

(b) a prescribed building,

must—

so we are talking about a person, and then it provides:

(2) A person who contravenes or fails to comply with a requirement—

so this talks about a person. The arrangements with local government are unique, and in clause 4 we spoke previously about a public building or facility, and that is envisioned to include local government facilities.

Can a council as an organisation be guilty of an offence under the bill, or is it a particular officer of the council who will be deemed guilty of the offence? There are a number of different arrangements in place with other pieces of legislation that specify that it is a certain individual within a local government organisation, predominantly the CEO, but there is just this ambiguity when it comes to clause 7, specifically when we are talking about a public building or facility. If the minister can please enlighten the house as to whom the responsible body would be, whether it would be the council or a particular officer of the council.

The Hon. C.J. PICTON: My reading, and there is a bit of statutory interpretation here, is that there is no definition in the bill that a person has to be a natural person; hence, my understanding is that that means there could be action taken in relation to an organisation, whether it be a council or other. I do not think the intention of the Hon. Mr Pangallo in moving this would be that, say, the CEO of the council would be the one it would be particularly raised with rather than the council itself.

Clause passed.

Clause 8.

Mrs HURN: I move:

Amendment No 2 [Hurn–1]—

Page 6, line 3 [clause 8(3), penalty provision]—Delete the penalty provision and substitute:

Maximum penalty: $2,000.

Expiation fee: $500.

The principles of this amendment, and indeed the few amendments I have that follow it, really follow similar principles to the one that came before it. Given this is the first legislation to be passed, ultimately presuming the house gets through this, which mandates the installation of AEDs, there is no direct comparison to similar legislation which does make this quite difficult to be able to weigh up to get the checks and balances right. The opposition does believe that these penalties are a hefty impost that fail to get the balance right, and that is why we have a series of amendments for the parliament to consider.

Mr TEAGUE: I rise to support the amendment. Without saying too much at this moment about the clause itself, I highlight that, as the member for Schubert has adverted, we are dealing with a combination of newly defined categories of people and places that are going to be the subject of obligations to install AEDs. There has been a variety of considerations just in the course of this committee process of who they might be and where those obligations might apply.

In clause 8, we have a series of definitions around vehicles that, again I just highlight, amongst other things leave room for a very wide variety of circumstances. Against that background, there is a penalty provision that applies not only to the quantum but also to the constituting of the offence that no-one has any control of after this legislation is passed.

Whether we like it or not, if the clause operates so as to constitute the offence, that is done: it is all over. There is no provision for somebody to indicate, 'I think you are relevantly operating a bus. I think you have relevantly failed to install an AED. As a result, I'm either issuing you a notice now, or I am inclined to, to ask what are you going to do about it and what do you think about whether or not that is breached,' and so on, before constituting the offence. We do not have that.

Just as in clause 7, we have a set of circumstances that are prescribed by the very terms of the clause itself. It is brand new and, all of a sudden and out of anybody's control, an offence is constituted with a substantial maximum penalty associated with it. Again, without applying any expectation of those who are going to have to determine the relevant penalty, it is not good enough to have a situation in which the offence is constituted and you go off to the tribunal to determine how much you are going to have to face.

It is the reason why, particularly in circumstances like these, it is preferable to err on the side of at least the capacity for the application of a lesser prescribed offence, including the expiation. I very much commend the amendment, in like terms and for similar reasons to that moved in relation to the previous clause.

Amendment negatived.

Mr TELFER: There is a curious aspect here, and I would appreciate the minister enlightening us. From my reading, the installation of automated external defibrillators in vehicles is purely around the prescription of the vehicles being emergency services organisation vehicles—CFS, MFS, SES and the like. If this is correct, I would appreciate clarity on that.

It would flow on that the owner of the prescribed vehicle must ensure that an AED is installed in the vehicle and, if not, then the fine of up to $20,000 would apply, on my reading of it. Would the owner of the prescribed vehicle be the head of each of those organisations—the CFS, MFS and SES—or would it revert to the minister as the responsible owner of the prescribed vehicle?

The Hon. C.J. PICTON: There are two elements to this clause. One is in relation to emergency services, which are defined in the bill as the CFS, MFS, SES or anything else that has been prescribed by the regulations. The government has no plans at this stage for anything else. The other is in relation to the owner of a prescribed vehicle. A prescribed vehicle is defined as 'a train, tram, public bus or any other vehicle prescribed by the regulations', and 'public bus' has a meaning of 'a bus engaged in regular passenger services under the Passenger Transport Act'. Underneath that, 'bus' means 'a motor vehicle built mainly to carry people that seats over 14 adults'.

Therefore, this is essentially about transportation through public transport. They are the people who would be required, under this provision, to make sure that the requirements are met in terms of having a defibrillator on board. I have already outlined that we have provisioned funding both for where the CFS needs additional defibrillators to meet these requirements and in relation to public transport services that need to meet these requirements.

We will be acting in terms of making sure that these requirements are met. They will have to be met within two years. Clearly, as per our discussion previously in relation to councils, I do not think it would be particular people but, rather, particular organisations with which issues would be raised if that were going to be the case. However, I do not foreshadow or foresee that would be an issue because we are taking action to make sure that this will be complied with.

Mr TELFER: As a follow-on to try to have some clarity, because I do not think you quite got there with what I was asking, when we talk about trams, trains, public buses, etc. we already know that, for example, the trams responsibility falls under the Minister for Infrastructure and Transport. This is a piece of legislation that is going to be in place ad infinitum, and we already know that the maintenance and testing regimes are going to have a penalty apply.

If there is even inadvertently a failure under this act, whether it is to do with the installation or the maintenance and testing, who would be the responsible person? I use 'person' with the same definition that the minister has spoken about. Will that end up being the CEO of the department, for instance, or the minister? If we are talking about emergency services facilities, it is exactly the same way. If there is a CFS vehicle that inadvertently misses either the installation or maintenance and testing and that is found to be in breach of this piece of legislation, who would be the responsible person in the terms the minister has used?

The Hon. C.J. PICTON: If there were ever an occasion when it would have to be considered whether it be the minister or the particular organisation itself that was going to be raised in terms of a penalty since we are rolling out these devices across these particular premises, I do not foreshadow that a particular issue will arise that would cause a problem in this regard. But, if there was a future time in which that was to be occasioned, then I am sure the relevant people in the Crown Solicitor's Office, or whoever it may be who would look at this matter, would determine who they should file the fine with. I suspect this is likely to be the particular organisation, as I said in the previous discussion about clause 7.

Mrs HURN: Minister, throughout the course of discussing clause 7 we learnt that the $20,000 maximum penalty for failing to have an AED in a prescribed building or facility was based on section 157 of the PDI Act, which is in specific relation to, and applies to, the owner of the building failing to comply with the notice relating to the adequacy of the fire safety of that building. Noting that that was the specific comparison and reference for clause 7 about the building, what is the same comparison now that we are talking about vehicles? Can the minister give an example to the committee where anything is mandated across the nation, or indeed the state and the world, when it comes to vehicles and what penalty that attracts?

The Hon. C.J. PICTON: I think this is entirely consistent with what we just discussed in relation to the previous section. In terms of having it in a building or in a vehicle, I think it is entirely consistent. I think the opposition should really decide whether or not they are supportive of this legislation. Do they think there should be defibrillators in these vehicles or not?

Members interjecting:

The CHAIR: Members on my left, you have had an opportunity to have your view without interruption. You give the minister the same courtesy.

The Hon. C.J. PICTON: You have been saying you support this legislation, but on the other hand you are taking up so much of parliament's time dragging into the minutiae of this in a blatant attempt to filibuster this legislation. I think it is clear that you do not support this legislation.

Mr Teague: Point of order.

The Hon. C.J. PICTON: And the evidence for that—

The CHAIR: Minister, there is a point of order.

Mr TEAGUE: Point of order: it would be highly disorderly to filibuster. The accusation of—

Members interjecting:

Mr TEAGUE: I'm sorry; I'm at a loss here. This is serious business.

The CHAIR: Member for Heysen, on which clause are you calling your point of order? Member for Heysen, can I please have your standing order?

Mr TEAGUE: Yes, it is a personal reflection.

The CHAIR: Can I have your standing order, please?

Mr TEAGUE: I need to find it. I think it is 124.

The CHAIR: If it is a personal reflection, I am happy to rule on that because I do not think it is a personal reflection because it is a general comment, rather than a reflection on an individual member.

Mr TEAGUE: The accusation has been made that those of us on this side are somehow filibustering this process. We have made it very clear that we—

The Hon. C.J. Picton interjecting:

Mr TEAGUE: It is a point of order. I am answering the Chair's question as to the nature of the concern. It is a reflection on members that is—

The CHAIR: It is standing order 127. As I stated, it is actually on a member not members. It is designed to protect members from individual comments. The minister clearly did not make a comment about any particular member. I am ruling that point of order out of order. Minister, you have the floor.

The Hon. C.J. PICTON: Again, I think it is clear that we on this side of this house, both in this chamber and in the other chamber, and in the previous parliament have been committed to making sure that this legislation passes. We will make sure that it passes this week. I am happy to answer each and every one of the questions, but I think it is becoming increasingly clear that there is a lack of support for this legislation from the other side. I think when we look at now dissecting whether we should have penalties in relation to vehicles—

Members interjecting:

The CHAIR: Members on my left will not interject.

The Hon. C.J. PICTON: Whether we should have penalties in relation to vehicles I think is yet another question of whether you are actually going to support this or not. We believe that—

Mrs Hurn interjecting:

The CHAIR: Member for Schubert, I have been really lenient. I would hate to remove you from the chamber.

The Hon. C.J. PICTON: We believe that there should be penalties in place both for the buildings and for the vehicles. We think it is important that both those provisions should be in place. As to suggesting that there is somehow not an appropriate connection between why you would have particular penalties for one or the other, I think we are viewing as a parliament—hopefully, as a parliament—that it is important that these provisions should be in place across the board in relation to whether it is a vehicle that is prescribed under the bill or whether it is a building that is prescribed under the bill. I am happy to go through the purposes again of why we are moving this legislation. With that, I will move that we report progress.

Progress reported; committee to sit again.

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