HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-07-22 Daily Xml
Contents
Pdf Xml

MINING (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 20 July 2010.)

Clause 7.

The Hon. M. PARNELL: I move:

Page 6, lines 13 to 15 [clause 7, inserted section 9A(1)(c) and (d)]—Delete paragraphs (c) and (d)

This amendment relates to clause 7. Clause 7 is the insertion of new section 9A into the act which relates to special declared areas. The amendment that I am proposing is to ensure that the ability of the minister to declare any land to be exempt from mining or from a specified class of mining cannot be abused in order to prevent areas of South Australia, or even the whole state for that matter, being exempt from operations of the act.

The new section 9A allows the minister to declare, effectively, a moratorium on mining for the reason as I understand it to allow the minister to go through a process of determining who should have access to land when there are competing claims or potentially competing claims. In effect it buys time for the minister to sort out that process, and that is not a bad thing, but my concern is that the current wording of the new section 9A is that the minister may, by notice in the Gazette, declare any land to be exempt from a specified provision of the act—that is paragraph (c)—or the whole of the act, which is paragraph (d).

The position that I always bring to these types of clause is to say that I am very uncomfortable with the ability of the minister, without reference to the parliament or anyone else, to simply say 'for this part of the state, the Mining Act doesn't apply' or 'for this part of the state, a certain part of the Mining Act doesn't apply'. I do not for one minute suggest the minister has in contemplation a course of action like this, but you could see a minister saying, for example, 'I hereby declare in the Government Gazette that the whole of the environment protection provisions of the act do not apply to the Northern Flinders Ranges'—that would be possible under this legislation.

So the amendment I have before the chamber is to say that those two paragraphs in the proposed new subsection (1) of section 9A—that is, the ability to declare any land to be exempt from the whole of the act or a specified provision of the act—be deleted. That leaves the minister having the ability to declare any land to be exempt from mining or a specified class of mining, which was what the minister said was the purpose of this section.

In other words, if the minister wants to declare certain areas of land off limits to mining for a period in order to sort out potentially competing claims, that will still be allowed. However, what I do not want is the potential for this legislation to be abused by, in fact, declaring areas of this state to no longer fall within the purview of the entire Mining Act, so that is the purpose of my amendment. As I say, I do not doubt for one minute that it is not the minister's intention to use the act in this way but because it allows it I would be much more comfortable if this chamber were to agree to my amendment, which removes paragraphs (c) and (d).

The Hon. P. HOLLOWAY: The government opposes the amendment. A special declared area is a transparent mechanism to deal with such matters including: the release of land to the open market, which has been the subject of a reserve pursuant to section 8 of the act; the release of land to the open market, where the government has undertaken geological, geotechnical or geophysical investigations pursuant to section 15 of the act; or complex competing tenement application matters—and there have been some examples of all three.

The Hon. Mr Parnell's amendment No. 4 removes the option for a special declared area to be exempt from a specific provision of the act. It is critical that this provision in the bill remains unchanged as it enables the minister to exempt a specific area from applications for tenements while still maintaining other provisions of the act, that is, the compliance tools. So, if you can exempt some parts, you can still have the compliance mechanisms, which may be important (even essential, I would argue), while the area is exempt from applications.

The effect of the Hon. Mr Parnell's amendments Nos 5 and 6, which come later but which are all related to this clause, would be to remove the time limitation for a special declared area, and the intent of that amendment is that special declared areas could be used to create de facto parks or reserves. The intent of a special declared area is that it is a temporary measure to manage and control applications over mineral land. Other environmental legislation exists to create and manage parks and reserves.

This clause has been proposed because there have been instances in the Mining Act when there have been difficulties in relation to complex competing tenement application matters. Clearly, that is why there is a need in the act for the option for a special declared area to be exempt from specific provisions of the act, and it is necessary.

The Hon. D.W. RIDGWAY: We have a long way to go today, so I will not be particularly longwinded. The opposition will not be supporting the Hon. Mark Parnell's amendment, although we believe that a couple of amendments we have further on in this new clause offer the protection that he might possibly be looking for. I hope that he and the Greens will be prepared to support us, in that this declaration should be tabled before both houses of parliament and that it also becomes disallowable (as we treat regulations), so that if it were being abused and parliament was not happy with the behaviour of the minister or the way it was being used, we could disallow it. We will not support this, but we look forward to his support for the other amendments.

The Hon. M. PARNELL: Given that the numbers are clear, I will not be dividing on this amendment. However, I will make the point that everything that the minister said that he wants to achieve, in his response, is achieved by virtue of paragraphs (a) and (b), which I am not proposing to delete, and that is because of the definition of 'mining' under the Mining Act. This will come up later, so I will go to it now. The definition of mining is:

...all operations carried out in the course of prospecting, exploring or mining for minerals, or quarrying...

In other words, it covers all of those application stages. I can see that the numbers are against me, so I will not be dividing on the amendment.

Amendment negatived.

The Hon. D.W. RIDGWAY: I move:

Page 6, after line 17—Insert:

(2a) The minister must, as soon as practicable after the publication of a notice under subsection (1), prepare a report on the matter (including an outline of the reasons for the declaration and the expected impact of the declaration) and cause copies of the report to be laid before both houses of parliament.

The effect of this amendment is in relation to new section 9A—Special declared areas. We believe that the amendment provides a parliamentary check, if you like, on what the minister has done. The Hon. Mark Parnell, on the previous amendment, was a little concerned about the potential for this to be abused or manipulated. We believe this gives an opportunity for the parliament to look at what the minister has done and why he or she has done it. We believe it offers a little more transparency and accountability.

The Hon. P. HOLLOWAY: One of the purposes of the Mining (Miscellaneous) Amendment Bill is to try to remove red tape. However, given this provision, one would not expect that it would be used often, although it does increase red tape to require the minister to table a report to be laid before both houses of parliament. As I said, the government believes it is necessary, but we are not particularly fussed by it, so we will not divide on it.

The Hon. M. PARNELL: For the reasons I gave before in relation to the previous amendment, I dearly hope that the section will not be abused. However, this amendment at least ensures that if the section is used there will be a report provided to parliament.

I was interested to hear the minister say that he did not expect the special declared areas provision to be used very often, in which case there is not a great deal of imposition. However, for the reasons I gave before, this does allow for an extra level of transparency, and I would hope that the tabled reports would become fairly routine and not give rise to any question that the provision has been misused.

Amendment carried.

The Hon. M. PARNELL: I move:

Page 7, lines 25 and 26 [clause 7, inserted section 9A(7)]—Delete:

'or until it expires under subsection (8), whichever first occurs'

The aim of this amendment is to effectively remove the two-year sunset clause on mining moratoriums for special declared areas. The minister, in his remarks earlier, said that this would be a back-door way of creating a new protected area or national park. I do not accept that that is quite the intent, but I am and have been very clear in my discussions with other members that I think it would allow the special declared areas provision to be used as a protective measure for a longer period than two years. I do not think it would be a very adequate permanent protection measure.

For example, if we had an area of the state where very little was known in relation to its biodiversity, and if a biological survey was to be undertaken and that survey was to take longer than two years, then it would seem to me that the ability for the minister to keep the protection in place until that survey was completed would be a good thing. Under the clause as it is presently drafted, there is this sunset coming in no more than two years after the first level of protection has been applied.

If members think this might be a bit of an academic exercise, I draw their attention to the fact that in the Arkaroola Wilderness Sanctuary not that long ago the first species of frog discovered in South Australia for some 40 years was found. My discussions with the scientists are that we know so little about some of these areas that really, before any potentially irreversible decisions are made about mining access or exploration, they should be thoroughly explored for their biological values. In many cases that will take longer than two years, which is why I think removing the automatic sunset provision would give the minister more flexibility to keep the mining companies at bay for as long as it takes to do the proper surveys that are required.

So, whilst I accept what the minister is saying, that my amendment would enable this clause to be used for a purpose which was not necessarily the government's intention, which is to sort out demarcation disputes or competing bids between mining companies, it is a protective measure, but I think it is a sensible one that the chamber should support.

The CHAIRMAN: We will get the minister to move his amendment, because it actually comes in before the Hon. Mr Parnell's. So, if we can have the minister move his amendment. We will deal with that first and then we will deal with the one the Hon. Mr Parnell has moved.

The Hon. D.W. RIDGWAY: I will withdraw mine.

The CHAIRMAN: The Hon. Mr Ridgway intends to withdraw his.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 28—Insert:

or

(c) so as to prevent a person establishing a mineral claim (identified in any manner allowed or approved under this Act) after the notice takes effect on account of a right to carry out exploratory operations under an exploration licence in force at the time the notice takes effect, or under a subsequent tenement under paragraph (b), where the holder of the tenement has reported to the Director of Mines the discovery on the relevant land of minerals that are potentially capable of economic production (including so as to allow a person to apply for (and being granted) a mining tenement on account of the establishment of the mineral claim),

As members will note, it is fairly similar to one moved by the Hon. Mr Ridgway. The Hon. Mr Ridgway's amendment proposes:

If the Minister has, by notice in the Gazette, declared any land to be a special declared area, any existing licence within that area will have the right to proceed to pegging a mineral claim and applying for a mining lease.

I have filed a further amendment to clause 7, page 6, after line 28 which provides any existing licence with the right to proceed to a mineral claim where that licensee has, in accordance with their licence conditions, reported to the director the discovery on the land of minerals potentially capable of economic production. This amendment will alleviate any sovereign risk issues industry may have with the original clause in the bill. As I said, the Hon. Mr Ridgway had tabled an amendment that was fairly similar and so this amendment—

The CHAIRMAN: The Hon. Mr Ridgway has withdrawn it now.

The Hon. P. HOLLOWAY: Yes, presumably in favour of this. I think that, following some discussions, it became apparent that this was similar to the matter he had raised but with a further clarification following those discussions. So, hopefully that will take up the matter that the Hon. Mr Ridgway or the shadow minister for mineral resources development in another place and the chamber had raised. It is really an extra bit of clarification so that it brings this whole section into line with the spirit of the act.

The Hon. D.W. RIDGWAY: I indicate that we will be supporting the minister's amendment, and I have been advised by the shadow minister, the member for MacKillop (Mitch Williams), that we will be withdrawing our similar amendment.

The Hon. P. Holloway's amendment carried.

The CHAIRMAN: I remind the committee that the Hon. Mr Parnell has moved his amendment.

The Hon. P. HOLLOWAY: The government does not support this amendment. I talked about this matter earlier, when I said that the effect of his amendments and the subsequent amendment would be to remove the time limitation for a special declared area. It is interesting that the earlier amendment moved by the Hon. Mr Parnell wanted to restrict the use of this, and that is why I am rather surprised that he would want to remove a time limit clause on it.

I suppose I should not be too concerned about his doing that, but I would have thought the fact that it has a two-year sunset clause, which can be reimposed if necessary to cover the situation such as the honourable member suggested in his argument, would allay any fears and that, if there were some legitimate reason along the lines that he suggested—that it might take longer than two years to determine these matters—the capacity is always there to extend it anyway through new section 9A(8).

In effect, the clause does allow extensions, so you can keep extending it, but I would have thought it actually provided more accountability by having the sunset clause so that there can be some check that in fact this section of the clause is being used for the purposes for which it was intended.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the Hon. Mark Parnell's amendment for the reasons outlined. We believe the fact that it lapses after two years does bring, as the minister said, some accountability; it cannot just be used as a blanket hold on things every two years. If issues have not been resolved within that time frame, then it can be extended. The opposition believes it is a useful amendment and will not be supporting the Hon. Mark Parnell.

The Hon. M. Parnell's amendment negatived.

The Hon. D.W. RIDGWAY: I move:

Page 7, after line 30—Insert:

(9) The Minister must cause copies of a notice of extension published under subsection (8) to be laid before both Houses of Parliament.

(10) If either House of Parliament passes a resolution disallowing a notice laid before it under subsection (9) then the declaration under subsection (1) will immediately cease to have effect.

(11) A resolution is not effective for the purposes of subsection (10) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the notice under subsection (8) was laid before the House.

(12) Where a resolution is passed under subsection (10), notice of that resolution must forthwith be published in the Gazette.

This amendment relates to extension and effectively stops the minister renewing an exemption every two years; if it is just for reasons that the parliament does not agree with, then there is an opportunity for the parliament to disallow that particular declaration. We think it provides some extra accountability if the extension notice just continues on willy-nilly.

The Hon. P. HOLLOWAY: As I said on the earlier amendment moved by the Hon. Mr Ridgway, we believe this is unnecessary and adds extra red tape, particularly since there is the process of having it gazetted every two years. It is just another process that we have to go through, but it is not something that this bill should fall on, so we will not oppose it.

The Hon. M. PARNELL: This clause poses some difficulties in some ways for the Greens because if the new power to declare special declared areas was only ever used for the purposes the minister has stated it would be used for, then I do not believe it would be necessary to come to parliament in relation to it. As I have put on the record, there is potential for it to be abused and, if that were to happen, I would want it to come to parliament so we could look at it. Given the minister has said he is not going to die in a ditch over it, I just put on the record that the Greens will support the amendment.

The Hon. R.L. BROKENSHIRE: I want to put on the record that Family First will support the opposition because this place is a house of review. It is a democratic process, and I do not think it is a major impediment to mining opportunities and processes in this state to bring it through the parliament every couple of years.

The Hon. P. HOLLOWAY: What we are talking about here is actually exempting areas from mining, so I think it is an interesting position that there could be disallowance of a motion that actually exempts areas from mining, which would mean that mining could, in fact, exist. It is an interesting position, I think, when normally arguments are the reverse of that but, as I said nevertheless it is a provision. There are only a limited number of cases in which we would expect it to be used.

The act has been able to operate without this provision, so we do not really believe it is going to be that onerous to have all these provisions, but they are probably unnecessary. It would be a strange thing indeed if, in fact, a government—any government, any future government—were to exempt an area from mining while it was looking at a range of factors, extend that and have it disallowed; in other words, parliament would be saying that mining has to take place. It is a rather interesting idea.

Amendment carried.

The Hon. R.L. BROKENSHIRE: Mr Chair, I have spoken to the minister about the next amendment standing in my name, and I advise the house that I will be recommitting this amendment, that is, the insertion of section 9B, with a slight amendment, when the government brings in a couple of recommitted amendments in the spring session.

The CHAIRMAN: So, you are withdrawing this?

The Hon. R.L. BROKENSHIRE: At this stage, yes, sir.

Clause as amended passed.

Clause 8.

The Hon. D.W. RIDGWAY: I move:

Page 7, after line 37—Insert:

(3) However—

(a) the appointment of a person who is not a member of the department must only be for a specific purpose and for a specified time (being an appointment that may be extended from time to time by the minister); and

(b) before such a person is appointed, the minister must be satisfied that the person has skills that are relevant to the purpose for which the appointment is being made.

This amendment relates to the appointment of authorised officers, and we seek to insert a new subsection (3). As they stand now, subsections (1) and (2) provide:

(1) The minister may, by instrument in writing, appoint a Public Service employee to be an authorised officer under this act.

(2) An appointment made under this section may be made subject to such conditions or limitations as the minister thinks fit.

What we propose to do is insert subsection (3). The opposition is a little concerned that we have some 6,000 or 7,000 members of the Public Service in South Australia. I am sure that at various times people are available all over the state when they are not required in their current roles, and they could be used for this particular purpose. We are concerned particularly in relation to some of the mining activities where we would expect these authorised officers to have some particular level of skill and understanding in the area where they are working. We just want to make sure that the minister is satisfied that the people being appointed have the appropriate skills for the tasks they are being asked to perform.

The Hon. P. HOLLOWAY: The government firmly opposes this amendment. Generally, amendments proposed in the bill relating to appointments of authorised officers have been modelled on similar provisions which apply in the Environment Protection Act and also the Petroleum Act. The amendments proposed by the Hon. Mr Ridgway impact on the powers to enforce compliance under the act.

There will be instances where authorised officers will not be officers of the Department of Primary Industries and Resources' mining division. For example, officers from SafeWork SA, who are qualified and experienced in the mining industry and whose primary responsibility is to ensure the safety of employees working in mines, should also be able to report relevant information pertinent to environmental issues associated with mines. A similar authorisation would be required for officers from the Environment Protection Authority. This is an efficient use of government resources and avoids duplication where possible.

Authorised officers will only be appointed if they have appropriate qualifications and experience, and that has long been the practice. Their powers will be individually specified and only some officers will be authorised to exercise all the powers under this section. It is also a common law right for any person to be assisted by a legal practitioner.

So, the government would argue that this amendment and the next two by the Hon. Mr Ridgway just create further red tape for government without necessarily providing any benefit. This system is efficient and it has been working well for some time now. As I said, SafeWork SA, officers from the EPA and PIRSA work very well together. Sometimes it is just an efficient use of government to have an officer experienced in other areas be able to act when they notice something that they think should be appropriately dealt with. It is something that has worked well and we would not want to see further red tape introduced into this area, as it would just reduce the efficiency of government employees.

We often get arguments that there are not enough people to do these jobs. I think it is important that we utilise the skills that we have across government. As I said, I can assure everyone that, as in the past, these authorised officers will only be appointed if they have the appropriate qualifications and experience.

The Hon. M. PARNELL: I note that the wording of the amendment has the effect of saying that, if a person works for the mines department, they are authorised for all purposes of the act. If they work for another government department, such as the EPA, then their appointment has to be for a specific purpose and for a limited period of time. I would be attracted to this amendment if we had an abundance of public servants from all agencies throughout the mining regions, but we know for a fact that officers are thin on the ground.

You can imagine a situation where a particular power needed to be exercised and the closest person to the scene happened to be, for example, an EPA officer rather than a mines or PIRSA officer. The EPA officer's hands would be tied by having a limited authorisation and therefore they could not take the action that was required. We are talking about public servants, many of whom will be multidisciplinary.

I just make the point in passing that, some 15 years ago, I participated in an inquiry into the inspectorate function of the mines department. That was an inquiry that was called by the unions following the death of a worker at a mine. I remember as part of that inquiry that we obtained the job description of inspectors. What I found remarkable was that one of the job ads we had was for someone who was going to be inspecting the environmental performance of mines. The qualifications were that they needed to have an explosives licence, but they did not need to know a bilby from a numbat from a mile tree. They needed to have no knowledge whatsoever of the environment, but they did have to have an explosives licence.

That was some time ago, but it struck me that you might have people who are knowledgeable about one aspect of mining, but not others. Now, you might say that that is exactly what the Hon. David Ridgway's amendment is saying—those with the specific knowledge should only be authorised in those specific areas. In a perfect world he would be right, but it is an imperfect world. We have so few people out there that I would not want to unnecessarily tie the hands of public servants who need to take action and exercise the rights that they have under this act to prevent some ill from occurring. So, the Greens will not be supporting this or the consequential amendments.

The Hon. R.L. BROKENSHIRE: I advise the committee that Family First will not be supporting the opposition on this amendment. We will be sticking with the government's clause.

The Hon. D.W. RIDGWAY: Paragraph (b) of new section 3 that we are seeking to insert, states:

before such a person is appointed, the Minister must be satisfied that the person has skills that are relevant to the purpose for which the appointment is being made.

I am a little confused with the minister's reasoning for opposing it, because surely he, as our current minister, should have the confidence that the people being appointed as authorised officers do have the skills for that relevant purpose. Otherwise, it does not really make sense—he says it is working well now.

That extra provision requires that you, as the minister, must be satisfied that the authorised officer has the relevant level of skills. By not supporting that amendment, by default, you are saying that it is not important if they have the relevant skills, as long as we get somebody there to do the task. I really do not understand how you cannot support that particular amendment.

The Hon. P. HOLLOWAY: Really, that is how it operates now. If the minister appoints someone—and all of these authorisations go through the minister—they have to be gazetted. So, as the minister authorises them or delegates the person who does it—it comes through the minister's authority—then, ultimately, the minister is accountable.

I do not think any minister is going to appoint people unless the advice is that the people are qualified to do the job. The point is that there are many instances where an officer will attend a mine site and have broad authority under the act. If they notice something else that they think may not be operating as well they can contact the relevant agency.

What happens in government is that officers tend to work together. Often, there will be joint inspections where you might have an EPA officer or a SafeWork officer attending with an officer from PIRSA. Sometimes, if you have an inspector up there for another purpose and they notice something that is not appropriate, they will take action. Otherwise, presumably this act would say that they turn a blind eye to it. I do not think that would be what anyone wants to happen.

Amendment negatived.

The Hon. D.W. RIDGWAY: I move:

Page 9, after line 32—Insert:

14EA—Legal representation

A person who is required to provide any information for the purposes of an authorised investigation may be assisted by a legal practitioner.

This is an amendment to section 14E, which relates to the entry of an authorised officer, in particular, going on site, particularly where a person may be required to provide information to an authorised officer of an authorised investigation.

Industry has been a little concerned about operations such as quarry or mining operators, not necessarily the great big operations like BHP and Roxby Downs, which are much bigger, much more complex operations. Industry representatives have come to the opposition to say that, if they have a quarry operator, a crushing plant operator, or somebody who is operating on their behalf, they felt that that person should be entitled to legal representation, if they felt they needed to, while they were providing information as part of an authorised investigation.

The Hon. P. HOLLOWAY: The government opposes this amendment. As I indicated earlier, it is a common law right for any person to be assisted by a legal practitioner. We do not really want to get the situation where the sorts of investigations that you might have with an inspector on site become bogged down as legal investigations.

The idea of inspection—whether it is about safety, environment and other things—is to get the problems fixed. I think the history is that the PIRSA inspectors and those from SafeWork SA and the EPA do a very good job in terms of doing that. They get on as well as they can with industry, but if it is necessary to require better practice that is exactly what they do. If we are to get to the situation where we are to encourage that process of inspections to become legal processes, it will obviously chew up an enormous amount of resources and energy, without necessarily dealing with what we want to deal with, namely, either to make the mines safer or more environmentally sensitive, or whatever the issues might be.

It is a common law right for persons to be assisted, but anything that would tend to turn these investigations into legalistic practices will not be in the best interests, I suggest, of improving the safety of workers, the environment or other matters.

The Hon. M. PARNELL: I think we can distinguish situations where a person's rights would be infringed by not having a legal representative present with them, and an example would be an interview with officers with a view to a prosecution in an office in the cold light of day.

My understanding of this section, which relates to the production of records and basically enables an authorised officer to demand that records be produced for inspection and that the person who has custody or control of those records answer questions on it, is it could apply in a real time—even emergency—situation. It may well be that an authorised officer has an urgent need to know something about a record: how many tonnes of something was put in that location, an amount of fuel, or who knows what the record might be.

It seems that, if we were to accept the opposition's amendment, effectively a mine operator could say to an inspector, 'I'm not going to show you my logbook and I'm not going to answer any questions about it until my lawyer arrives.' Bear in mind, as we said before with inspectors, that many of these mines are in very remote locations where the length of time it would take someone to get there would be measured in days rather than in minutes or hours.

I do not know whether the mover has any scenario in mind, but it would seem that there would be the potential for a person to legally withhold a record that was important for an authorised officer to have access to in real time on the basis that their lawyer in Flinders Street, 2,000 kilometres away, was not able to attend at that particular moment.

Unless I have misunderstood the intent of proposed new section 14E, it would seem to me on balance that, whilst it is normally desirable to allow people to have a lawyer with them when they are answering questions, given that I understand that we are talking about authorised officers potentially acting in real time, we might need to trade off that general principle in order to ensure that the authorised officers can have access to all the information they need to take the appropriate action in real time. My inclination is not to support the amendment unless the mover has a scenario that tells me I am wrong.

The Hon. R.L. BROKENSHIRE: I ask the mover to perhaps further explain his amendment based on the debate. He has not said 'will'; it is 'may' be assisted. What in law will stop someone, if appropriate, calling on a legal practitioner as it stands now in law, if indeed they can access a lawyer? You are not saying they will have to, but you are giving them an option. I do not see how you will achieve much in any case.

The Hon. D.W. RIDGWAY: Following a number of discussions with industry stakeholders, their view was that if they have operators—and we are talking of the smaller quarries and extractive industries operations—where an authorised officer may want to undertake an investigation and want some information, they would like their employees to have the right to have legal representation. The minister is saying that it is a common law right now. If that is the case (and as members know, I am not a legal person), we think it provides a little extra protection for employees to say that, under the act, they may be assisted by a legal practitioner.

I understand the Hon. Mark Parnell's concern that, if it is 2,000 kilometres away and the legal representatives are in Flinders Street in Adelaide, clearly that will cause some problems. However, I think the clause is saying 'may' be assisted by a legal practitioner and does not insist that they have to. It is not a case that the investigation cannot take place until the legal practitioner arrives. I hope I have clarified that sufficiently for you.

The Hon. J.A. DARLEY: I will not be supporting the amendment.

The Hon. R.L. BROKENSHIRE: We will not be supporting it either.

The Hon. M. PARNELL: In response to the mover's response, the words in his amendment are that 'a person who is required to provide any information for the purposes of an authorised investigation may be assisted by a legal practitioner'. It would seem that, even though it uses the words 'they may be assisted by', I would have thought that that meant that if, for example, they want to be assisted by a legal practitioner and they were denied the right, they would possibly have a good case for saying that the $10,000 fine or six months' imprisonment did not apply to them because they had a right to be represented by a legal practitioner and they were denied that right. Whether that is the right interpretation, I am not sure, but on balance my position has not changed and we will not support the amendment.

Amendment negatived.

The Hon. D.W. RIDGWAY: I move:

Page 9, after line 37—Insert:

(3) However, if any information provided for the purposes of an authorised investigation is commercially sensitive, a person whose commercial interests would be adversely affected by its publication may apply to the ERD Court for an order under subsection (4).

(4) On an application under subsection (3), the ERD Court may, if it thinks it appropriate to do so—

(a) order that information not be published;

(b) impose conditions or requirements with respect to the publication of information;

(c) make other orders in connection with the publication of information,

(and then the Minister must, in acting under subsection (1), comply with any such order, condition or requirement).

This relates to the provision of information during an investigation. It was raised by some industry stakeholders about the provision of information that might be commercially sensitive, and the Hon. Mark Parnell talked in the previous amendment about the number of tonnes—whether it is production tonnes, whether it is reserves of tonnes of product—there is a whole range of information that could be commercially sensitive.

This is to provide an opportunity for somebody to prohibit or stop that information from being published if it is going to adversely affect their operations. We had some discussions with operators in the extractive industries field, and most of the operators, even the big mining operators that operate in the metals, iron ore and copper (the big boys in town) are always a little guarded on some of the commercial information, if it is sensitive and it impacts on their operations. We often know when shares trading halts are put in place because of announcements of reserves that have expanded or reduced or whatever.

We see this as a safeguard on the commercial information that may be needed for the investigation to take place. We are not suggesting that the authorised officer should not have it but we think there should be a mechanism to prevent that from being published, if it is commercially sensitive and may affect that operation.

The Hon. P. HOLLOWAY: The government does not support this amendment. The report of an authorised investigation will only be published where there has been a proven breach. That is normal practice: you have an investigation. Normally this particular section would come into place if there has been some incident that requires investigation. If there has been a proven breach, I would argue it is in the public interest to publish such a breach publicly. It is important that we do so. It is consistent with long-standing practice from PIRSA's compliance and enforcement policies.

I think the difficulty with the Hon. Mr Ridgway's amendment is that the government is very sensitive to information that is commercially sensitive, and it is something that we have to deal with all the time in terms of releasing information. I think, under one reading of Mr Ridgway's amendment, you could say that no breach would be published because in most cases a breach would be considered commercially sensitive; it almost certainly would have an impact on the company.

You could argue that, yes, it would be detrimental if a company has breached compliance and that comes out. Yes, it will affect its share price, therefore, would you argue that it should not be published due to the consequential impact on a company's reputation? This is an important part of compliance that, if you do have a breach of the act, then it should be properly investigated and that breach should be made public, notwithstanding any impact it may have on the company.

The Hon. M. PARNELL: The Greens will not be supporting this amendment for much the same reasons that the government is opposing it. I remind members of the two most recently published reports that I am aware of; the first one was the one relating to Arkaroola, which was done jointly with officers of the EPA and Primary Industries. It was very much in the public interest to know about the discovery of the illegally dumped bags buried in shallow graves, the illegal damage of the fluorite deposit—all of these things. It was important and it was in the public interest that we know exactly what happened.

The minister, I think, is correct that any adverse information would affect the company. I know the honourable member's amendment talks about information that is commercially sensitive. In my experience I think there is a difference between commercially sensitive information and information that is damaging. 'Commercially sensitive' would relate to things like assessments of the extent of a resource or something like that, which would normally not be relevant to an investigation, and I do not recall ever reading a report that had that sort of information in it. The minister does have the ability, the discretion, to put in the report what the minister sees fit, and in fact the minister is not even obliged to publish a report if the minister does not want to.

I mentioned there were two. I recall the minister yesterday in parliament. While it might not have been a formal report, at least he advised us about the problem with the copper mine at Copley near Leigh Creek. I think it is important, given that matters like that were raised on television current affairs news programs. I have raised them as well. I think it is important that the public is able to find out exactly what authorised officers found when they went out and what action the government took in response to the investigations. I am comfortable not supporting the Hon. David Ridgway's amendment and trusting instead in the minister to exercise proper discretion in terms of what should and should not be in the report. It would be no secret to members that the Greens would always err on the side of publishing more rather than less.

The Hon. R.L. BROKENSHIRE: I am sorry to say to my colleague the Hon. David Ridgway that we cannot support this either. There could be an allegation; we do not know sometimes. Trucks cart material out of mines. They have the capacity to truck other material from processing arrangements elsewhere back into that mine. If that occurs and that is detrimental to a region or a neighbour, as an example, then I think they should have that exposed. It keeps pressure on the miners to do the right thing. I can say there is plenty of evidence particularly with this government where I have lots of confidence in them looking at commercially sensitive issues and commercial in confidence—just try to get an FOI.

Amendment negatived; clause passed.

Clauses 9 to 12 passed.

Clause 13.

The Hon. R.L. BROKENSHIRE: My amendments are consequential to what I put up before and if I did not do any good then I will not do any good now, so I withdraw them.

Clause passed.

Clause 14 passed.

Clause 15.

The Hon. R.L. BROKENSHIRE: The amendments standing in my name are consequential and are withdrawn.

Clause passed.

Clause 16.

The Hon. M. PARNELL: I move:

Page 13, after line 11—Insert:

(1) Section 28(5)—delete subsection (5)

This is a test for my amendment No. 8, as well, although I understand there is probably another amendment in between. However, I will move amendment No. 7 now but I am primarily speaking to the detail set out in amendment No. 8.

This amendment—and I have replicated it in three different locations in the bill—is designed to give some more openness and transparency in the regime of public consultation on applications for mineral tenements. I will not go through all the problems with the current system because I set those out in my second reading speech. However, in a nutshell, the difficulty is that the minister is not obliged to advertise mineral exploration licences with a view to getting information about what decision the minister should or should not make.

The minister firstly, under the present system, forms an intention to grant the exploration licence and then is simply obliged by the act to notify but without any particular expectation that anyone would respond, and certainly no legal obligation to take into account anything that anyone says if they do respond. In other words, on a spectrum of public participation or public consultation, it is very much at the shallow end.

The regime that I am proposing to replace for mineral exploration licences, mining leases and retention leases is one where, first of all, the minister must undertake consultation before deciding that he or she is going to give an exploration licence. In other words, seek submissions before you have made your decision rather than simply notifying that you intend to grant the mineral exploration licence: that is the first thing.

Secondly, I am proposing that the notification be via a newspaper, and that is primarily what happens at present. Members will be familiar with the ads at the back of The Advertiser. I am also proposing that the legislation require electronic communications on the website, as well. That has come to be standard in terms of all government notification processes. So, that is not that much different to what we have at present.

I have then gone on further and said that there should be direct notification in writing of landholders within the mineral exploration licence area. Members might think that that is going to be a huge imposition and there will be thousands and thousands of landholders, but that is generally not the case. We are mainly talking about fairly remote areas with a very small number of landholders. We are not talking about someone applying for a mineral exploration licence at, say, Burnside or Port Adelaide, where you would have thousands of notifications to make. I do not think that is too onerous.

What it does is notify owners of land that a mining company has applied for a licence to explore an area, including their land, and it would draw it to their attention directly and give them the opportunity to then contact the minister and say what they think. If part of the object of the exercise is for the minister to have the best available information before making a decision, then who better to provide that than the people who actually live, work and own land in that area? It may well be that the type of submission that is made is one that says, 'Minister, we are happy for exploration to occur but you need to know about these important local circumstances. In these local areas it is going to be important to keep the mining companies out.' It might be some sort of important environmental area, a wetland or who knows what. That information would come if the landholders were told.

At present, landholders are expected to scrutinise the newspaper daily and to find these advertisements in small print at the back, and often with very inadequate descriptions of the actual land that is covered. So, direct notification to landholders is included in this regime.

My regime requires a minimum period of 28 days for comment, and that is exactly the same as at present. I have added a further requirement that any comment directed to the minister should go to the question of whether or not the tenement, in this case a mineral exploration licence, should be granted and, if it was granted, what conditions should be attached. It is at that time that the minister can be told, 'By the way, minister, there is an important wetland in this corner of the mineral exploration licence. If you are going to let anyone explore there you need to make sure that you attach these conditions to it.' You could then set out the conditions.

In the absence of that local knowledge and those representations, the department or the minister is more than likely going to issue a standard exploration licence with standard conditions that will not necessarily reflect the actual conditions on the ground. The next requirement is that submissions, once made to the minister, should be published. That is exactly the regime that currently applies for other important consultation processes such as the rezoning of land. If members care to do so, they can go onto the website of the Department of Planning and Local Government and download the submissions that are made, and members may well have done that. Important rezoning exercises that are currently underway have had dozens and dozens of submissions published on the web. I think that is important in terms of transparency. When the minister does make a decision, everyone would know what information the minister had on which to make that decision. They would see all of the submissions that were made, whether it is by mining companies, individuals, chambers of commerce or—

The Hon. R.L. Brokenshire: Politicians.

The Hon. M. PARNELL: —politicians, as the Hon. Rob Brokenshire points out. Local members, for example. Publishing submissions is important. I also have a requirement that, if there are submissions, there should be an opportunity for people to actually address representatives of the decision-maker verbally with their submissions. That is exactly the system that currently applies in relation to rezoning exercises. If no-one makes a submission or, having made a written submission, no-one particularly wants to give any extra information verbally, then you do not need to have a meeting.

Members might think, 'Gee, this is going to add a great deal of time and expense,' but I think what you will find is that the experience is that the vast bulk of these public consultation exercises do not attract large numbers of submissions, unless, in the case of mining, it is over important environmental areas, and an even lower proportion of people who would actually want to attend a meeting. There is nothing, of course, that precludes them from ringing up someone from the department and providing information directly, but I have simply replicated the ability for a meeting to be held if any of the people who make submissions desire to be heard.

The regime that I establish here creates what I think is one of the most important requirements, and that is (and this is not particularly radical) a requirement for the minister to actually have regard to the submissions, because at present anyone who has ever made a submission on a mineral exploration licence would be horrified to know that the minister was under absolutely no obligation at all to have any regard to their submission in terms of forming a decision about whether or not to issue the mineral exploration licence.

As I said, it is the most shallow form of public participation when the decision-maker is not even obliged to have regard to the submission before making a decision. That is where I come back to the first part of this new regime I am seeking to introduce which says the minister should consult before making a decision and not afterwards.

Once submissions have been made and published, and a meeting has been held if necessary, I think it is then a matter of simple courtesy for the minister to be required to tell those stakeholders—those people who bothered to make a submission—what the result was. At present, there are so many consultation regimes in this state where we never find out what the final decision was, other than when it is just published in the Gazette with no reasons given whatsoever. I think it is a matter of courtesy that people who bother to make submissions be directly notified the results of their submissions and the final decision that was made.

We also need to use modern technology to publish that information, so decisions made on any application for a mineral exploration licence should be published on the web. Again, members might say, 'That already happens; you can download this information,' but it is currently not a requirement of the legislation. Given that the purpose of this bill is to bring into the 21st century an act that goes back to 1971, which well and truly predates the internet, why not put in a requirement for electronic publication of this information?

The final aspect of my amendment is for appeal rights. That is not formally part of this amendment, but it will flow on later. I will get to that amendment later. This regime that I have put in place is a stand-alone regime. It simply improves public participation. It does not of itself give appeal rights, even though I would like to introduce those, but that will be in a later amendment. So members need not be fearful that, if they are voting for this amendment they are voting for the appeal rights, because I have separated those amendments out.

The Hon. P. HOLLOWAY: The government does not support this amendment. As has been suggested, this amendment No. 7 in Mr Parnell's name is really consequential in effect on the more substantive replacement clauses that he proposes in amendment 8, so I will deal with both of them together. Mr Parnell's later amendment proposes that the minister must consult with individual landowners before granting an exploration licence. If more than one submission is received, the minister must hold a public meeting.

This proposal shall significantly increase the red tape for government with no real value for the community. An exploration licence can be granted for an area up to 1,000 square kilometres. The average licence can contain hundreds of land parcels within that area. In most cases where an exploration licence encompasses multiple land titles, the explorer will rarely enter all land titles. An exploration licence is not a possessory title and it does not encumber a land title; that is, a licence is not registered against the land title, as is a mining lease.

The cost to the government and therefore the community of consulting with individual landowners for an average licence could well be in the vicinity of $20,000, or industry would need to wear this cost through higher fees. Consulting with individual landowners where those landowners may never be approached by the explorer could cause unnecessary angst, red tape and cost for the landowner.

The act's statutory entry to land provisions and the statutory provisions relating to the assessment of work approvals I would argue adequately address consultation with landowners and other stakeholders, which take into consideration environmental, social and economic impacts. As has been indicated at the start, one of the important parts of this bill is to look at the issues relating to access to land, and we have already debated some of those provisions in relation to that.

I would argue is that is one of the areas where the government accepted that the act needed to be changed, and we are obviously looking at those provisions, and we have already discussed some of those. This would be an extra level of red tape that would in many cases be completely unnecessary because it could well cover hundreds of land titles where there was never going to be exploration.

This proposal significantly increases the risk of security of tenure in that if, due to an administrative error, the minister missed sending a notice to a particular landowner, the licence grant could be deemed invalid. If there were a title of several thousand square kilometres, which might include many small leases, and if you happened to miss one of those titles that could create this error.

There is significant risk and red tape associated with this measure, but essentially what benefit would it be? We are talking here only about exploration and, as I said, this bill elsewhere addresses issues in relation to the statutory entry to land provisions and the statutory provisions relating to the assessment of work approvals, and that is where we believe those issues should be addressed.

The government accepts there needs to be some improvement in those areas, but to add this sort of catch-all would just add an enormous amount of red tape and delay and increase the risk of security of tenure and a number of other disadvantages for, I would argue, very little real benefit.

The Hon. D.W. RIDGWAY: I am going to do the same as the minister and speak on the next two amendments of the Hon. Mark Parnell because they are linked. Certainly, the opposition does not support the Greens' amendment in this case. I think it does provide a significant increase to the administrative burden and the consultation. It is about an exploration licence, and we all know that exploration goes on all the time. It is the actual mining activity that is the greatest threat to the environment or the community, rather than the exploration.

It is the opposition's view that it would just create more red tape and be more cumbersome, and increase the time delays. Exploration is particularly costly and a bit hit and miss, although I guess with some of the new data available it is not quite so hit and miss. It is often said for every hundred exploration licences that are granted there are really only one or two that ever come to fruition and result in a proper operating mine, which of course is subject to a whole bunch of other provisions. With these few words I indicate the opposition will not be supporting these amendments.

The Hon. R.L. BROKENSHIRE: We have some sympathy with some of the clauses in these amendments (and I will be speaking to one of them in a moment), but we see them as being too broad and therefore too much of an impost on the industry at the exploration stage, so we will not be able to support the Hon. Mark Parnell.

Amendment negatived; clause passed.

Clause 17.

The Hon. R.L. BROKENSHIRE: I move:

Page 14, after line 24—Insert:

(7a) The Minister must, within 14 days after receiving an application for an exploration licence, give written notice of the application to the owner of the land to which the application relates together with an invitation to submit written representations on the application within a specified time.

By coincidence, this amendment is identical to one in the raft of the Hon. Mark Parnell's amendments that were just debated. This is a fresh issue, compared with other amendments I have put forward, and relates to a farm or a property owner getting fair notice of exploration. We have had examples of farmers who had miners knocking on their door without much notice. We and the Farmers Federation, as well as others, feel that, given the impact exploration alone can have on farm viability or property ownership, some reasonably fair notice needs to be given so that access in the future can be negotiated at the earliest opportunity.

I give an example on Yorke Peninsula, which I gave in my second reading contribution, but it is a case in point. A mining company, worth about $5 million, is exploring prospects that potentially have a claim over 70 per cent of this generational family farm. That is a major impact on farm viability and sends concerns to bankers, management practices and the like. We believe that the earlier notice of this fact can alert farmers in relation to the future of their farm and can give them an opportunity to start to get the right advice on what protection and mechanisms they can have to assist them with their assessments when exploration licences are issued.

In essence, we believe that the system is tilted unfairly in favour of the miner here. We are putting up this amendment because we want to see the balance restored in the interests of fairness. Proposed new subsection (7a) provides:

The minister must, within 14 days after receiving an application for an exploration licence, give written notice of the application to the owner of the land—

just to the owner of the land, at least—

to which the application relates together with an invitation to submit written representations on the application within a specified time.

I do not think it is such a difficult ask for a mining company to actually write to the person whose land they want to explore and give them 14 days' notice to consider their personal situation. I think it is called democracy.

The Hon. P. HOLLOWAY: The government rejects this amendment for much the same reason as I have just given in relation to the amendment from the Hon. Mark Parnell. We disagree with the Hon. Mr Brokenshire that this does not have any significant consequences. We believe that the proposal would significantly increase the red tape for government. As I indicated previously, an exploration licence can be granted for an area of up to 1,000 square kilometres, and the average licence can contain hundreds of land parcels. In most cases, where an exploration licence encompasses those multiple land titles, the explorer will rarely enter all land titles. Again, in the debate on the previous clause, I mentioned the potential for risk of security of tenure, and the like, if one has to notify every single land tenure.

I do not want to make light of the problems raised by the Hon. Mr Brokenshire because we are aware that there can be problems in relation to access. We believe that the way to deal with that—and we will be doing this—is through regulations that come under section 58 of the act, I think, involving the statutory requirements relating to entry to land provisions and assessment of work approvals. So, rather than be required to notify what may be many hundreds of landholders—and if you miss one, that puts the tenure in jeopardy—it is important that, at the access stage, one should ensure that the landowner is treated with respect. It is at that point where we believe the act will do that through regulations and commensurate changes to section 58.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the Hon. Robert Brokenshire's amendment. In particular, I refer to the farming operation on Yorke Peninsula where the impact of that operation is not because of the exploration that has taken place: it is because something has actually been found and a potential mine may be established at some point in the future. That is where the impact is on the landowner. It is not the fact that maybe some holes were drilled across the property and coal was found, as I think was the case here: it is the uncertainty that he is facing about whether a mine will be established and what impact that will have on the value and the viability of his farm. In this case, we do not think it adds any real protection for landowners, so we will not be supporting this amendment.

The Hon. R.L. BROKENSHIRE: I take it that the minister is saying that they do not have an inclusive whole-of-government approach to looking after their own land within government because the minister's department issues an exploration licence. Are you saying to this council that, irrespective of what I have just discussed with respect to farmers and private landowners, you are happy to leave all your agencies responsible for land unadvised until such time as they actually want access to the property? To me, that seems a pretty slack attitude by government, as far as across-government consideration of all their own agencies and land management goes.

The Hon. P. HOLLOWAY: Whenever an exploration licence is issued, if it is over crown land—it could be national parks—there is, of course, consultation. That would be required under other parts of the act, but it really comes back to a point Mr Parnell made earlier that, if there are sensitive environmental areas that are either within a park or on other crown land that may not be dedicated as a park, normally those agencies, through consultation at the exploration stage, would put such requirements on it.

If there are any sensitive areas, park or not, then the government could require conditions that would apply in relation to how one accesses that particular area. Of course, a number of other parts of the act involving rehabilitation and not disturbing native vegetation, etc., would all come into it if there were some sensitivities.

These matters are all addressed but, again, these issues, as I indicated, are probably better dealt with in the statutory entry to land provisions. Once you have dealt with the overall exploration licence in terms of the area it is in and those factors, as I said, if there are conservation parks, national parks and the like, they would all be dealt with at that stage with conditions that would apply to the exploration licence.

Then, in relation to individual landholders, if the exploration company wishes to go into a particular property, that is when the statutory entry to land provisions and provisions relating to the assessment of work approvals, etc., would come into it.

The Hon. M. PARNELL: I will be supporting the amendment, which will be no surprise, given that it is a small part of the more comprehensive public participation amendment that I had before. The Greens support more consultation and notification rather than less.

If we just want to step back a moment, one of the difficulties we have with this regime is that there is an assumption out there that, if we are going to allow mining companies to explore, then, if they find anything, we are going to have to allow them to mine. The question is often raised: if you had some problems, why didn't you make them known earlier? Well, one of the reasons people do not make them known is that they do not know. The reason they do not know is that they do not necessarily read the public notices in the newspaper.

I absolutely take the minister's point that the direct notification occurs at the notice of entry stage, but I still think that, in terms of these—as the minister says—often large mineral exploration licences, it is not too onerous to actually require all the relevant stakeholders within that area to be notified.

In some ways, many government consultation processes remind me of that scene from, I think, the very start of TheHitchhiker's Guide to the Galaxy, where the Earth is about to be destroyed and the aliens say to the earthling, 'Well, didn't you see the public notice?' It was in an unlit basement and I think it was guarded by a tiger, or something. It was a spoof on the fact that, when all you do is comply with the letter of the law, it pretty much guarantees that not that many people will find out what is going on.

So, this is, I think, a small improvement to the public notification provisions. I notice that, as we go through this bill, we will be looking at exactly the same issues again when we get to mining leases, which is certainly a much smaller area; and also retention leases, which are small as well. For now, the Greens are happy to support this stand-alone amendment.

Amendment negatived; clause passed.

New clause 17A.

The Hon. M. PARNELL: I move:

Page 14, after line 41—After clause 17 insert:

17A—Insertion of sections 29A and 29B

After section 29 insert:

29A—Representations in relation to grant of licence

(1) The Minister must not grant an exploration licence unless he or she has caused to be published, in accordance with subsection (7), a notice—

(a) describing the land to which the application relates; and

(b) specifying a place at which the application may be inspected; and

(c) inviting members of the public to submit written representations in relation to—

(i) whether the application should be granted or refused; and

(ii) any conditions that should be attached to the licence if the application is granted,

within a period specified in the notice (which must be a period of at least 28 days from the date of publication of the notice).

(2) The Minister must, within 14 days after receiving an application for an exploration licence, give written notice of the application to the owner of the land to which the application relates together with an invitation to submit written representations on the application within a specified time.

(3) If application is made for an exploration licence in respect of land within the area of a council, the Minister must, within 14 days after receiving the application, send a copy of the application to the council and invite it to submit written representations on the application to the Minister within a time fixed in the invitation.

(4) If the Minister receives 1 or more written representations in response to an invitation under this section, the Minister must cause to be published, in accordance with subsection (7), a notice inviting members of the public to attend a meeting to be held in relation to the application.

(5) All written representations received in response to an invitation under this section must be published on a website maintained by the Department to which the public has access free of charge.

(6) In determining whether to grant or refuse an application for an exploration licence and, if so, the terms and conditions on which it should be granted, the Minister must have regard to any written representations submitted in response to an invitation under this section and any oral representations made at a meeting convened in accordance with subsection (4).

(7) A notice under this section must be published—

(a) in the Gazette; and

(b) in a newspaper circulating generally throughout the State; and

(c) if there is a regional or local newspaper circulating in the part of the State in which the licence area is situated—in the regional or local newspaper; and

(d) on a website maintained by the Department to which the public has access free of charge.

29B—Notification of decision on application

As soon as practicable after determining whether to grant or refuse an application for an exploration licence, the Minister must—

(a) provide written notification of the following to each person who made a written or oral representation in relation to the application (and whose identity and contact details are known to the Minister):

(i) the determination;

(ii) the date of the determination;

(iii) if a licence has been granted—the terms and conditions of the licence;

(iv) the person's right under section 42 to appeal against the determination; and

(b) cause the determination to be published on a website maintained by the Department to which the public has access free of charge, together with, if a licence has been granted, a copy of the licence.

I spoke to this amendment No. 8 along with amendment No. 7, and I have moved it so that Hansard will record the regime I have carefully created. However, I will not speak to it or divide on it.

New clause negatived.

Clause 18.

The Hon. R.L. BROKENSHIRE: I move:

Page 15, after line 7—Insert:

(ab) any underground water that may be affected by the conduct of operations in pursuance of the licence;

(ac) any circumstances that are relevant to contributing to South Australia's food security;

This is straightforward amendment and simply adds onto the minister's amendment, relating to any aspect of the environment that may be affected by the conduct of operations in pursuance of the licence. Paragraph (ab) specifically refers to any underground water that may be affected by the conduct of operations in pursuance of the licence. I have already spoken to colleagues about concerns with the protection of underground water (or groundwater, whichever way one interprets it) and any circumstances that are relevant to contributing to South Australia's food security.

These are the first of several amendments that piggyback on the government adding 'environment' as a consideration with mining applications but expanding it to the clearer primary concern of both groundwater and food security. I am be keen to hear from the government, opposition and crossbenchers. I reserve my right to recommit this, specific only underground water, based on the comments the minister made earlier about food security.

The Hon. P. HOLLOWAY: I would have thought that this was consequential. Essentially we had this debate about these two issues on Tuesday, so I will not repeat the debate here. We oppose them for the reasons I outlined last Tuesday.

The Hon. D.W. RIDGWAY: The opposition opposes it for the reasons I outlined when we had the debate two days ago, and we oppose the amendment.

Amendment negatived.

The Hon. M. PARNELL: I move:

Page 15, line 28 [clause 18(3), inserted section 30(8), penalty provision]—Delete:

'$120,000' and substitute: '$500,000'

I will treat this amendment as a test for a large number of other amendments that seek to increase the penalties under the act for criminal offences, in particular the more serious criminal offences. The minister will no doubt tell the chamber that this 40-year old piece of legislation has been substantially revised in terms of penalties and that the penalties are substantially more than under the existing act. In fact, there are some instances where a penalty is being imposed for the first time, where no penalty was available before.

However, my amendments seek to increase the penalties, not just because I can but because we need to put in perspective the types of criminal conduct we are talking about and the potential impacts on the environment that can occur when things go wrong, either accidentally or deliberately, in relation to mining. This particular provision in clause 18 relates to mineral exploration licences. The government's bill seeks to include a penalty. New section 30(8) will provide:

(8) A person must not contravene, or fail to comply with, a condition of an exploration licence.

It imposes a penalty of $120,000. Let's put this in perspective. Who can think of an occasion recently when a mining company has failed to comply with conditions of a mineral exploration licence? Arkaroola—illegally dumping thousands of bags of waste, the illegal removal of a valuable fluorite deposit, substantial damage caused to the environment and, under present law, no monetary penalty, other than that which comes from having their drilling operations suspended.

What will be the maximum penalty? If another Marathon Resources comes along and behaves in such an appalling way in some other important part of our environment, the maximum penalty will be $120,000. Let's put this into context. Under the Environment Protection Act, if a person causes serious harm to the environment knowing what they are doing—in other words, not just an accident but knowingly, as Marathon did, knowingly, secretively and sneakily trying to avoid their obligations—under the Environment Protection Act, if a corporation behaves like that, it is a $2 million fine and, if an individual does it, it is a half million dollar fine under section 78, from memory, of the Environment Protection Act.

Here we have an industry that has great capacity to cause harm and damage. I know that there are other provisions that might require them to remediate or to make good or whatever. We are talking about the criminal penalty, the fine that would go into consolidated revenue as some form of punishment for the behaviour. When someone breaches an exploration licence, the maximum penalty under this bill is $120,000.

My amendment proposes to increase that to half a million dollars. Members might say, 'Why didn't you put it up to $2 million?' I figured I have more chance with half a million and it is more than twice as good as what the government currently has in here. I know we are coming off a low base. I know we are coming from an old 40-year-old act with very inadequate or non-existent penalties, so people might think going from zero to $120,000 is a pretty good thing, but just bear in mind that the level of damage that can occur is massive and these are, on the whole, multimillion dollar companies that can afford to pay serious fines. The alternative is, if you are a mining company and you know the maximum fine is $120,000, to think 'Is it worth spending a couple of million dollars to do things the right way or do I just run the risk that I will not get caught and I will pay the fine if I do?'

I know people might say that mining companies do not think like that. My experience as an environmental lawyer over two decades is that companies very often do weigh up the chance of getting caught and the maximum penalties if they are caught and they build that into their decision-making when it comes to whether or not to do things properly or do things in a half-baked manner.

I am not going to speak at length to every occasion in this bill where I seek to increase the penalties but I just urge honourable members to bear in mind that while $120,000 looks like a lot of money, it is a drop in the ocean compared to the damage that can be done and compared to other legislation already on the statute books in South Australia that treat environmental crimes more seriously than this bill does. I urge all members to support this and the other amendments in the bill that seek to increase the penalties.

The Hon. P. HOLLOWAY: The government does not support the amendment. This bill introduces penalties in some cases and substantially increases them because some of them have not been changed for many years since the Mining Act 1971 was introduced. The Hon. Mark Parnell's amendments seek to increase the penalties which in this bill are $120,000 and $250,000 respectively to half a million dollars and $1 million respectively.

The penalties proposed in this bill have been determined subject to extensive benchmarking of similar penalties within mining legislation in other jurisdictions. The Hon. Mr Parnell's proposed penalties would make South Australia's legislative regime the highest by far with respect to penalties. The new enforcement tools proposed in this bill have been modelled with a focus on the principal tools of education and persuasion to achieve compliance efficiently and effectively with a need to utilise compulsive or punitive enforcement action only as a last resort.

If there is actual environmental damage and so on, of course the other acts the honourable member referred to actually do apply, and I think the honourable member referred to the Marathon action at Arkaroola. That action drew to the government's attention some of the inadequacies within this particular act. Certainly the company should not have buried it. It is one thing to return the drill core back to the earth from which it came but it certainly should not have buried it in plastic bags and put other rubbish there.

In terms of actual environmental damage, one of the issues (if I recall correctly) was, of course, that punishment under the EPA would have been difficult to sustain because it was not as though putting the earth back was going to cause lasting environmental damage. In relation to the other matter the honourable member referred to there were issues of evidence. However, without wishing to go further into that particular case, I make the point that it is important that there be penalties within the Mining Act to cover cases where there is a breach of the act but they may not necessarily incorporate environmental damage.

If there is severe environmental damage then, clearly, other penalties can apply under other legislation. I just want to make sure that that point is registered. Certainly, under the Mining Act, we do need a scale of penalties, and these penalties have been carefully crafted to be commensurate with the sorts of offences and the levels of fines in other acts around the country.

The Hon. D.W. RIDGWAY: The opposition shares a very similar view to the government, in that these penalties have been increased and that is certainly long overdue, as the legislation is some 40 years old. We think that the government has got it about right, this being similar to other jurisdictions. A member said we could be leading the nation with the highest penalties but I am not sure that is something that we want to be leading on; we need to be comparable but not excessive.

Amendment negatived; clause passed.

Clauses 19 to 22 passed.

Progress reported; committee to sit again


[Sitting suspended from 12:58 to 14:18]


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT