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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-10-19 Daily Xml
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Bills

Hydrogen and Renewable Energy Bill

Committee Stage

In committee.

(Continued from 18 October 2023.)

Clause 79.

Mr PATTERSON: We talked at length about compensation as a mechanism for pastoralists if there are renewable energy infrastructure and licences on their land. It would be good to flesh that out, more to give comfort as well, because the stakeholder feedback in regard to compensation is that it can potentially lead to protracted negotiations because of the nature of what is put in here.

First of all, it talks about entitlement to compensation for economic loss, hardship or inconvenience suffered by the owner. It then goes on to talk about the amount payable, and tries to talk through what they should be, such as any damage caused to the land or loss of productivity and any other relevant matters. That could potentially draw in a whole lot, and maybe this could have been to the point in terms of whether any of that could be put in regulations.

To give some examples, it talks about the maintenance and repair of access roads, stock routes, fences and other infrastructure, the relocation of dams, water points, the impact on remaining farming activities, including productivity loss, stock impacts, biosecurity control matters and the reduction in the availability of water at any level in the soil profile, groundwater or aquifers required for natural pasture and crop growth to support the desired stocking rates. They are some of the issues.

One of the points made was that while it does identify an entitlement to compensation, was it ever considered as part of this, as apparently occurs in some interstate legislation, to identify in more detail those sorts of aspects of pastoral land that would be applied for compensation and payments as well?

The Hon. A. KOUTSANTONIS: There is a well-worn path here already from the Mining Act that a lot of pastoralists and freehold landowning farmers are well aware of through their professional associations and through their own lived experience. What we attempt to do and set here is a floor not a ceiling, as I said to you last night. So, all those matters that you raised absolutely should be considered.

What we have done is rather than prescribe them and say, 'These are the only ones you can consider,' we are trying to be as broad as possible so that in negotiating an access agreement and compensation before work can begin, all these matters are taken into account: impacts on roads, impacts on fencing, impacts on stock movements, impacts on wells and biodiversity issues.

All those things that could have an impact on a pastoralist's ability to conduct their pastoral lease should be considered while they are negotiating their access agreement. We have done so broadly, deliberately, to make sure that pastoralists get the full benefit of being able to negotiate a compensation package as part of an access arrangement. If we are too prescriptive, we will miss something, so I think it is better to be broader.

I am not sure if there has been some confusion between the consultation, but that was the feedback that we received. If the shadow minister has different consultation outcomes from his discussions with pastoralists and freehold land communities about access and compensation agreements, I would be more than happy to see what we could do to facilitate that, but broadly my position, as with the Mining Act, is why would we limit it? We want this to be as broad as possible. That is the legislative strategy here to make sure that people are not worse off and that they in fact receive a benefit.

Mr PATTERSON: I am just interested to get a bit of further understanding around the purpose of subclause (9) around compensation. Subclause (9)(b) provides:

(b) a reference to a licensee—

(i) does not include the holder of a hydrogen generation licence;

Can the minister clarify: does that mean that you have all these different licences that could well apply on land, and specifically a hydrogen generation licence which can be on both freehold and designated land?

How does the compensation regime then work for a hydrogen generation licence? Is that via the access agreements and all those terms reached there, or is compensation taken into account in other ways for hydrogen generation licences? I just want to understand also as part of the question why, specifically, the hydrogen licence was singled out in terms of this compensation clause?

I do not want to interrupt you, but while you are getting advice from your adviser, to follow on, subclause (9)(b) also provides:

(ii) does not include the holder of an associated infrastructure licence that does not confer a right to enter…

Maybe you could explain in which circumstances that would arise.

The Hon. A. KOUTSANTONIS: The advice that I have received is that a hydrogen generation licence does not confer access to the land. So, he has resumed the land through the pastoral lease and then you use that to calculate the compensation, but the hydrogen generation licence is not a licence to access the land so you still have to negotiate an access arrangement. Does that answer your question? Is that what you are looking for?

Mr PATTERSON: What you are meaning is that, because hydrogen generation by its nature is effectively resumed land and makes it hard for multiple land use, effectively the resumed land means that that compensation process is taken into account by the Pastoral Land Management and Conservation Act ergo you do not get two bites at the cherry in terms of getting compensation as well from the hydrogen generation because you have been compensated as a pastoralist because that land has been resumed.

Effectively, that hydrogen generation licence, it seems to me, would mean that the minister now has control of that or whoever is in charge of the Pastoral Land Management and Conservation Act. Then the follow-on is the commentary around the associated infrastructure licence and how that sort of seems to work.

The Hon. A. KOUTSANTONIS: You are right about the hydrogen generation licence. I am not sure about the two bites of the cherry, but you are absolutely right about your explanation of the hydrogen generation licence, because it is resumed land. In terms of the infrastructure and associated licences—that is what is you want clarification on as well?

Mr PATTERSON: Yes, which is subclause (9)(b)(ii).

The Hon. A. KOUTSANTONIS: The associated infrastructure licence does not confer a right to enter and use land within the licence area but the minister does have a discretion to allow entry because it is infrastructure rather than a generation licence.

Mr TEAGUE: Just to follow on then from that line of inquiry, if we go to subclause (4) there is an indication of where the amount of compensation is. To use one of the minister's terms, a bilateral agreement is left to the person described as the owner and the person described as the licensee. It is not owner and applicant or owner and prospective explorer. This is someone who has got a name tag on their jacket saying, 'Hi, I've been granted a licence by the minister,' and we traversed all of that. I am coming to you as a licensee—and hopefully that is not the first time they cross paths—but as subclause (4) sets out you are dealing there with a moment where the act says, 'Okay, that amount of the machinery has been put into place. We have now got a moment of bilateral negotiation, according to the criteria in subclauses (1), (2) and (3), and it is a bilateral agreement that is then to be formed by owner and licensee, and if they cannot agree then off they go to the ERD.

The first question might be that the minister might concede that you have built in a sort of common law process in terms of the determination of what those other matters might be. So, if let's say the first pastoralist who gets approached by the licensee says, 'All right,' and let us assume it is all a functioning example—the pastoralist is broadly aware—they might have come to know about the prospective explorer, which might have involved a process—

The Hon. A. Koutsantonis: Are you talking about designated land?

Mr TEAGUE: Yes.

The Hon. A. Koutsantonis: Well, we've got a process—

Mr TEAGUE: Yes, they know at least that much.

The Hon. A. Koutsantonis: If they've been consulted, yes.

Mr TEAGUE: Well, hopefully.

The Hon. A. Koutsantonis: Well, we said that earlier last night.

Mr TEAGUE: Yes, but we ummed and ahhed about exactly whether—

The Hon. A. Koutsantonis: No, no.

Mr TEAGUE: —the pastoralist is going to be consulted.

The Hon. A. Koutsantonis: You are creating a scenario that does not exist. It is not relevant.

Mr TEAGUE: Not for this purpose.

The CHAIR: Hold on! Can the member for Heysen please clarify what his question is and then the minister will respond—and the minister will give the member a chance to put his question across.

Mr TEAGUE: I will endeavour not to respond to interjections, but I will otherwise just warm up to it.

The Hon. V.A. Tarzia interjecting:

The CHAIR: Member for Hartley, I do not need your help, thank you.

Mr TEAGUE: What I really want to make clear, leaving aside the vagaries of how well they know each other before subclause (4) kicks in—that is not the issue—is you are dealing with at that point, at subclause (4), a bilateral agreement between owner and licensee. The owner is identified and the licensee is credentialled by the minister, and that is where the licensee obtains their relevant status. They are expected to achieve a private agreement, and if they disagree then they are off to the ERD.

The minister would agree that in terms of finding out what some of those other relevant matters might be, the subject of (2)(c), you are inevitably going to head towards private bilateral and, if not agreed, then discovering what is and is not another relevant matter for the purposes of (2)(c) by adjudication by the ERD. So you are building up a kind of common law process to determine what is in and what is out, and you will not know with certainty, because it is not a category that is to be determined by regulations that are changed over time. The government is steering clear of what those other matters might be. Is that a correct description of the landscape?

The Hon. A. KOUTSANTONIS: If this is designated land, as the shadow minister agreed we were talking about, that means that there has been a release done by the South Australian government, which means that a proponent has won an exclusive right to negotiate with the lessee. The lessee has been informed at the beginning of the process, because the Minister for Environment and Water has been notified first. The regulations will stipulate that the lessee is consulted, so the lessee knows this is coming.

The process occurs. The proponent wins the exclusive rights to negotiate with the lessee. The lessee is in preparation, knowing those costs are covered. They are working out, for lack of a better term, a log of claims, what they would think would be an appropriate form of compensation for impacts on their business. That would be informed by whatever the proponent is preparing to develop and build.

If it is a one-gigawatt wind farm with associated transmission lines leading to a potential 250-megawatt electrolyser or associated transmission lines or pipelines, or whatever it might be, that would be mapped out. The pastoralist would look at that and say, 'This is how it impacts on my business. This is what the potential impacts would be. This is what compensation I think should be paid.' The proponent, if in dispute, will respond to that. There will be backwards and forwards. We make sure that the landowner or the pastoralist has adequate resources to deal with that.

If they cannot reach an agreement, the minister does not pick a side; the ERD Court does. Now, if you are saying, 'Does the ERD Court decision create common law rights there?' I will leave that for others to decide. I am not qualified to give an answer on that. That is the process that is well trodden, well worn, well traversed in the Mining Act and the petroleum geothermal act.

Mr TEAGUE: So for the purpose of this analysis, it is a bit of a red herring. The lead-up to how well they know each other before they get to subclause (4) is not the issue. The issue is—and I think the minister has just confirmed—a matter for bilateral private negotiation between owner, and we know their status, and licensee, we know their status. They are known, in terms of who is negotiating with whom. Agree, and if you cannot: off to ERD.

We have (2)(c) that says 'any other relevant matters'. To go back to the matter that I raised last evening about the question of the effect of competitiveness, capital value and so on, one might, from the point of view of statutory interpretation, look at the other categories in (a) and (b) and say, 'Alright, well it is in the nature of disruption to ongoing actual activity.' You might look at it that way. 'Are there any other relevant matters?' and the minister has said in the outset, in terms of responding to the shadow minister just now, the government does not want to prescribe what they might be—it might be wideranging.

I am just then interested—and maybe, if it rises no higher than a hypothetical from the point of view of the minister, then the minister might not want to respond to a hypothetical—is it not reasonable that a pastoralist who is faced with this point of negotiation says, 'Hey, hang on, as far as I am concerned, "any other relevant matter" includes the fact that I have been deprived of the opportunity to go and seek permission from the minister (in the old world) to do exactly this, and I have been deprived of the opportunity now to compete with my neighbour. My neighbour property is now worth significantly more, or mine is worth significantly less, and I am regarding 'any other relevant matter' as anything from a competitive dividend to a capital reduction.'

I gave one example of a significant transfer of a pastoral lease in the course of debate. Can the government give any indication at least about an expectation in that regard about what 'any other relevant matter' might or might not include, conceding that it is what it is—it is there on the face of it—and it is not something that is subject to further refinement by regulation?

The Hon. A. KOUTSANTONIS: The subject of the section, as it says in clause 79(1):

…the owner of land is entitled to receive compensation from a licensee for any economic loss, hardship or inconvenience suffered by the owner in consequence of authorised operations.

What you are ignoring, of course, is that this will be a statute and will be a law, which will be authorised by myself and the Minister for Environment and Water at the beginning.

Mr Teague interjecting:

The Hon. A. KOUTSANTONIS: Sorry?

Mr Teague: I am not ignoring it, I am—

The Hon. A. KOUTSANTONIS: It will be a legislated process. In terms of the pastoral lease, a pastoral lessee has no absolute right to develop renewable energy on a pastoral lease. They do not have the independent right to do that; they need to seek permission of someone else. They do not.

Mr Teague: So does a freeholder.

The Hon. A. KOUTSANTONIS: That is true.

Mr TEAGUE: A freeholder needs to seek permission from someone else as well.

The Hon. A. KOUTSANTONIS: That is true, but they own the land freehold, and there is a fundamental difference in that, which you and I disagree on. You think a lessee enjoys the same privileges as a freehold landowner—I disagree.

Mr Teague: Not the same.

The Hon. A. KOUTSANTONIS: Not the same?

Mr Teague: Just analogous.

The Hon. A. KOUTSANTONIS: No. If a pastoral lessee, on the conditions of their pastoral lease, loses any enjoyment of the economic benefits their pastoral lease brings as a result of activity from the HRE act, they are entitled to compensation. I cannot make it clearer. If they have loss of movement of stock, if they feel that they have a loss of value that they can quantify and show and the ERD Court agrees, then they can by all means argue that in a court and the ERD Court will decide that—not the government, the ERD Court. We can mediate before we get to the ERD Court and try to mediate this.

But if members opposite are attempting to confer on a lessee the absolute right, undisputed right, to earn rent from another activity that is not licensed on a pastoral lease on Crown land, that is a big jump, and that has not been considered by any statute here. That is a big jump. That is the equivalent of saying that a pastoral leaseholder owns their land freehold and for any activity that occurs on that pastoral lease outside that lease, even though it is on that lease area, that lessee must derive an economic benefit from it.

That is what the opposition is saying. If that is what you want to say, say so. It is perfectly legitimate to say so. We are saying no, but what we are saying is that if someone has a pastoral lease and any activity from the HRE act can be shown to impede their ability to conduct their pastoral lease activities, then they are entitled to compensation—absolutely. But I say also that there are roads through pastoral leases; they do not charge tolls. There are rail lines through pastoral leases; they do not charge tolls. If I took your argument to its logical extension, they would be compensated for that and they would get a rent for it. They do not.

Mr TEAGUE: I do not know if it is necessary to rebut that, but the rhetorical question in terms of framing up the debate—obviously, we are here doing our job. Secondly, we are here reading a bill and looking to interpret it and ask the government questions about it. Contrary to the minister's perhaps first instinct, not every utterance is first and last political with a view to some sort of angle. It is important in the interest of all South Australians that we understand what is to be legislated here and are clear about it. I am just reading the words on the page, and I have adverted to—

The Hon. A. Koutsantonis: I am not criticising.

Mr TEAGUE: I do not take it as a criticism. What is unhelpful is the framing up of some sort of pseudodebate in terms that have not been articulated, so I just make that clear. I have adverted to a bill that is before the house. I do not go doing that to any great extent, and I do not do it for the purpose of debating the merits of it, but clause 4 of that bill that we have had reference to contemplates, right now, this government looking at the reality of the range of activities that are conducted on pastoral lease land.

Clearly, a matter that is not controversial is that freehold interests are different to pastoral lease interests. They are different. That does not mean that a pastoral leaseholder does not have an interest in the land: they do, and they have such a significant interest in the land that pastoral leases change hands for significant capital sums, as we have heard from me and from the member for MacKillop last night, on the basis of what is understood to be that package of real rights that are possessed by pastoral leaseholders. We have a bill before the parliament to expand the range of normal—that is, no permission required—activities by pastoral lessees.

The Hon. A. Koutsantonis: Compensation clauses.

Mr TEAGUE: Yes, I understand. It is only another two or three-word stretch in clause 4, at paragraph (h)—I am talking about the other bill—where you say, 'Right, actually, carbon farming is consistent with pastoral leaseholders.' All of a sudden—

The Hon. A. Koutsantonis: Well, it is not now.

Mr TEAGUE: No, but it will be. So right now—

The Hon. A. Koutsantonis: You are just arguing against yourself.

Mr TEAGUE: Hear me out. Right now, you have a situation where pastoral leaseholders who want to get into carbon farming might be told, 'None of your business. Go and talk to the Minister for Mining, who might licence it out to somebody, get some state rental,' or, 'Go and get the minister's permission to do your carbon farming.' You can, then; alright, maybe. The same thing goes for the conservation properties. They might be earning income from school visits, local stays, tourism, visiting drivers, four-wheel drivers, the whole range of incomes, but hang on. Are those caught by the permitted uses of a pastoral lease or not? Maybe not, hence the need to legislate. On we go. But there is no doubt that there is a bundle of real property rights that are owned by pastoral leaseholders; let there be no doubt about that.

The minister, in running through those heads of loss in subclause (1), said himself that the first on the list is economic loss. The first head of loss that is contemplated by subclause (1) is economic loss. We have a list in (2)(a) and (2)(b) and then we have 'any other relevant matters', so any other relevant head of economic loss. The minister said—and do not make some false argument about how I would like things to run—that for the purposes of subclause (4) this is a bilateral followed by reference to the ERD against the background of nobody having done these deals before.

I am just positing—necessarily a hypothetical, perhaps; the government is better informed than I am—that someone may well come along and say, 'Hang on, it's first on the list in (1) and it is another matter in (2)(c), and damn right I want some compensation for that head of economic loss.' The prospect, therefore, of that agreement occurring between owner and licensee might be spannered by that impasse. I think that that is a clear elucidation of the landscape.

I am just interested to know whether the government is anticipating, maybe against the background of mining experience, that we are going to see peace in our time and that it would be a very rare event if something goes to the ERD, or is it the government's expectation that there is actually a body of necessary law that is going to need to be built here, and we do expect that there will be a run to the ERD Court, including in those sorts of circumstances, to test what in fact is economic loss, let alone hardship and inconvenience?

The Hon. A. KOUTSANTONIS: Regarding the government's other legislation, I think the shadow minister bringing this into the debate has been interesting, because I think it does cut across his argument. I know he is trying to use it to illustrate an example of where the government is saying that there are other potential uses and applications that are in the pastoral lease, but what he is ignoring is that we are authorising that in the parliament because it is not clear. We are making it clear; we are codifying it.

What is clear is the operation of a hydrogen facility on a pastoral lease is not a pastoral lease's key business. We are putting these clauses in because people have a pastoral lease, and if multiple land-use frameworks regulated and legislated by this parliament overlap and impinge on those lease rights they are entitled to be compensated, as they should. We have made that clear. Do I think there will be a run to the ERD Court? No, I do not. It depends entirely on the quality of the proponent, the quality of the project, and how the negotiations are conducted.

I have seen sophisticated farming operations have excellent relationships with people who have mining tenements on their pastoral lease or their freehold land. They are sophisticated business people. They understand how to negotiate, they understand their economic loss and they are happy to be compensated for it. They understand the loss of their use, but they also understand that we own the minerals and we can grant ultimate access to those minerals—but we do so to make sure that there is a framework in place so that farmers are not worse off.

What I cannot legislate for is that subjective piece, where there are some pastoral leaseholders and some freehold farming communities that do not want anyone else to have access to their freehold land. They do not want anyone else to have access to their property, so therefore the ERD Court is busy with those people. Given the descriptions and the vast amounts of money that the shadow attorney-general has talked about, people who have made investments in pastoral leases are sophisticated business people. They understand how to negotiate, they have means to negotiate, and they will negotiate any economic loss.

It is prudent that we have put this in here to make sure that no-one is worse off. If it was not in here, the debate today would be very different and about why have you not included something about compensation and economic loss. Just because we have a clause in here saying that if there is economic loss you should be compensated does not mean there will be economic loss. I think we are talking at cross-purposes.

Mr PATTERSON: I move:

Amendment No 10 [Patterson–1]—

Page 62, after line 24—Insert:

(3a) The amount of compensation may include an additional component of up to $10,000 to cover the reasonable costs of obtaining legal assistance relating to the operation of this section incurred by the owner of land.

This amendment is based around elevating and explicitly talking about an amount of compensation due to the landowner entering into access agreements because, as I have said previously, there is the requirement on many occasions to get legal advice, professional fees, etc. Under questioning, the minister said there is the potential for that to occur via subclause (3). However, this amendment here seeks to insert a subclause (3a) underneath that that, in effect, just makes it explicit that there is a fee there.

As we discussed yesterday, it is based on feedback from stakeholders. They are really trying to get comfort from the fact that there could be a fee and this explicitly talks about a fee as opposed to potentially putting it in subclause (2)(c), 'any other relevant matters'.

The Hon. A. KOUTSANTONIS: The government opposes this amendment because the advice we received is that this will limit the amount of compensation. It will put in a ceiling of $10,000. We do not want to limit it to $10,000. It could be more and we feel that your amendment limits the ability of there being greater compensation.

Amendment negatived; clause passed.

Clause 80.

Mr PATTERSON: This right to require acquisition of land only applies to the special enterprise licence. To get confirmation here, it seems from the previous questioning we had on clause 79 that the way these licences work on pastoral land is that potentially you get a special enterprise licence on there. Will it be the case for pastoral land that it will not have to be resumed initially to have the special enterprise licence on there, but then down the track the pastoralist may feel that there is a case for it to be resumed?

The question is that this talks about a right to require acquisition of land. Does a pastoralist use this clause here for resumption of land or would they use the Pastoral Land Management and Conservation Act and go off to the appropriate minister for that and then that leaves this clause purely for freehold landowners?

The Hon. A. KOUTSANTONIS: Any resumption is dealt with under the Pastoral Land Management and Conservation Act, but this applies to both pastoral and freehold land, so under an SEL you would retain ownership of your land unless you did not want to, and then this clause would kick in.

Mr PATTERSON: In terms of the ERD Court's involvement, if the ERD Court becomes involved and there are applications under this section, the ERD Court can then order the licensee to pay the owner an amount equivalent to the market value and any further amount the court considers just. Are there any appeal rights for both parties, where the licensee feels the ERD Court has applied too much compensation or, equally, where the landowner feels that there is not enough compensation?

The Hon. A. KOUTSANTONIS: I will check with my staff, and I will watch as I am saying this to see if I am getting it right or not. You grant a special licence, an enterprise licence. The pastoralist or the freehold landowner does not want to keep that land. It is a requirement of the special licence holder to compulsorily acquire that land. We are telling them, 'Now, you have to buy it because they don't want it because there is a special enterprise licence over the top of it.' That is a protection again for the landowner. If they do not want to keep it, and they are dissatisfied with the compensation or rental agreements on a freehold property, we can require the licensee to compulsorily acquire the property, and the ERD Court is the adjudicator.

Mr PATTERSON: The ERD Court also then comes up with a compensation value, and the question around that is: are there rights of appeal around the compensation that is awarded? You can see that the landowner goes in there and says, 'I would like to be compensated,' and then all of a sudden they come out and say, 'This wasn't what I was expecting.'

The Hon. A. Koutsantonis interjecting:

Mr PATTERSON: Right.

Mr PEDERICK: Minister, in regard to applications under the ERD Court, I assume there are some similarities to what happens under the Mining Act. Under the Mining Act there are some minor provisions allowing for some financial recourse for people involved—somewhat limited some would say. Is there any support available for pastoral leaseholders or freehold landholders, if they have to have an action through the ERD Court in one of these proposals?

The Hon. A. KOUTSANTONIS: Yes, those costs are recouped and recovered through the process—absolutely. That is why we did not support the previous opposition amendment because it would have capped that at $10,000. It could cost a lot more—so absolutely.

Clause passed.

Clause 81.

Mr PATTERSON: On the hydrogen and renewable energy fund, subclause (2) talks about what the fund will consist of. To my mind, it does not specify that the fund will consist of moneys collected by way of rent via clause 45. My question is: will the fund consist of all the moneys collected via the rent going into this fund?

The Hon. A. KOUTSANTONIS: No, this is just for penalties, for any penalties payable under the act.

Mr PATTERSON: Subclause (3) says that the minister can invest any money in the fund that is not required. Is that 'invest' in terms of a financial investment, where you are looking to get a monetary return, as opposed to things that are sometimes talked about as investments, where they just become the minister giving money—as in a grant program—and calling it investing in regional roads or things like that? Is subclause (3) purely for financial investment purposes to get a monetary return?

The Hon. A. KOUTSANTONIS: Subclause (4), paragraphs (a), (b), (c), (d) and (e) outline how that money will be spent.

Mr PATTERSON: That probably clarifies it. What you are saying is that that is what the money can be spent on, whereas the money that is sitting there, when you are investing it, it is keeping it within the fund; you are just trying to get a return on the money. I am happy with that.

Clause passed.

Clauses 82 to 88 passed.

Clause 89.

Mr PATTERSON: The question is around compliance directions. I take it this is a direction that is issued because of noncompliance and trying to enforce that. I am asking this question because in the Mining Act, in terms of getting social licence, some of the commentary is that, yes, by all means the act looks to protect a landowner's interests, but that is only really comforting if the act is enforced, if there are actually compliance and enforcement resources put towards that.

In terms of what will be looked at to ensure compliance, is that making sure there is compliance with the access agreement, with the work program, the operational management plan or the terms and conditions of licence? What aspects would be looked at and, if it is all, that is equally acceptable?

The Hon. A. KOUTSANTONIS: Compliance is the relevant approval of a statement of environmental objectives, which is the same as in the Mining Act and Petroleum and Geothermal Energy Act. Compliance information includes or demonstrates compliance against the relevant assessment criteria detailed in the SEOs (statement of environmental objectives), immediately reportable other offences, reportable incidents specifying the relevant SEOs. The act has specific enforcement and compliance direction powers, allowing the minister to compel licensees via a compliance direction and make good any noncompliance against the relevant SEOs' licence conditions, and any other requirements of the act.

So it operates in the same way as in the Mining Act and Petroleum and Geothermal Energy Act. If you have an SEO, and you are in breach of it, these give me the powers to set out the circumstances in which a direction for compliance can be issued.

Mr PATTERSON: Just to clarify, it is basically around the environmental objectives. How then will there be compliance for other aspects of this act in terms of terms and conditions of the actual renewable energy licences, making sure that the operational management plan is being done as it was laid out?

The Hon. A. KOUTSANTONIS: Subclause (1)(b) also includes a condition of a licence, and subclause (1)(a) provides:

(a) securing compliance with a requirement of this Act, a licence (including a condition of a licence) or an authorisation or direction under or in relation to a licence;

It gives us a framework on where I can set remedies in place and penalties for not reporting reportable things in just the way you would administer any form of oversight of a licence condition.

Clause passed.

Clauses 90 to 93 passed.

Clause 94.

Mr PATTERSON: Can the minister outline the circumstances in which an enforceable voluntary undertaking would take place? Does the minister have to accept the undertaking in the very first place?

The Hon. A. KOUTSANTONIS: I am advised this is a standard clause that is in the Mining Act and the Petroleum and Geothermal Energy Act. There are not any real-life examples I can point to. It is a standard clause that we have in this bill. It provides for the manner in which a person may give a written undertaking in connection with a matter relating to a contravention or alleged contravention by the person with provision of the measure. The clause further provides for the minister to apply to the ERD Court for enforcement of the undertaking if the minister considers that the person has contravened the undertaking, and there are offences and penalties in place.

Clause passed.

Clause 95.

Mr PATTERSON: In terms of the civil remedies, subclause (14) states:

(14) Proceedings under this section based on a contravention of this Act may be commenced at any time within 3 years after the date…or, with the authorisation of the Attorney-General…

It seems this is based, as previously, on what is in other acts, so I am checking that. Also, under what circumstances would the Attorney-General get involved? Is there a limitation, or does that leave it open-ended and, effectively, the Attorney-General can just go back as many years as he likes?

The Hon. A. KOUTSANTONIS: Yes. If I am not aware of it within three years, without that other provision, we would basically be having almost a statute of limitations, where we could discover some dramatic breach that would result in a successful prosecution and that is in the state's interest to do so. The Attorney-General, I would imagine, in collaboration with Crown law, would get advice, probably the DPP as well, about whether a successful prosecution could be undertaken. It is absolutely the right thing to do to have this in place. It keeps proponents on their toes.

Clause passed.

Clauses 96 to 105 passed.

Clause 106.

Mr PATTERSON: Subclause (1) states that this section applies to a decision to refuse an application for a renewable energy feasibility permit and a decision to refuse an application for a licence. In the draft bill, the decision was to grant or refuse. Maybe the minister can explain why it was arrived at to remove that grant, and are there implications? If I read it, there is an appeal right around a decision to grant an application for licence. That seems like that would give a freehold landowner with a special enterprise licence the right to at least appeal that, whereas, if I read it this way, the freehold landowner does not seem to have any rights to appeal against the awarding of a special enterprise licence.

The Hon. A. KOUTSANTONIS: This just mirrors the legislation of the planning and development act. That is why—

Mr PATTERSON: Sorry, which act?

The Hon. A. KOUTSANTONIS: The development act, for Crown-sponsored developments. That is why it has been put in, because it mirrors that.

Mr PATTERSON: Maybe if you could confirm the commentary around my question around not having the ability, the decision, to grant an application—that it means that if a special enterprise licence is awarded by the minister there are no appeal rights once it is awarded.

The Hon. A. KOUTSANTONIS: My advice is that a freehold landowner can appeal a special enterprise licence. If you read the bill at clause 106(1):

(b) a decision to refuse an application for a licence (other than a special enterprise licence);

Clause passed.

Clauses 107 to 113 passed.

Clause 114.

Mr PATTERSON: This is not really a question so much as just confirming what we have talked about through a lot of our discussions throughout the bill, just around the regulations. It has been explained that a lot of modern legislation does not look to be too prescriptive and then seeks to put aspects of regulation in the regulations. Some of the things we have talked about around consultation for pastoralists and those sorts of aspects I have tried to remedy by specifically putting them in the bill via amendments, which has not been successful. That being the case, could the minister explain again the commitment around how regulations will be developed and that they will consider consultation for parties such as pastoralists, native title holders and renewable energy companies?

The Hon. A. KOUTSANTONIS: I do commit to that. I refer to my remarks yesterday or the day before, where I undertook to negotiate and consult with the opposition specifically. I think you are key stakeholders here as well, so I will absolutely be consulting. I commit to the consultation plan I have previously outlined in the parliament.

Clause passed.

Remaining clause (115), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. A. KOUTSANTONIS (West Torrens—Minister for Infrastructure and Transport, Minister for Energy and Mining) (12:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:59 to 14:00.

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