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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-09 Daily Xml
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STATUTES AMENDMENT (BUDGET 2010) BILL

Third Reading

Third reading.

The PRESIDENT: I certify that this fair print is in accordance with the bill as agreed to in committee and recorded with amendments.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (15:36): I move:

That the bill be recommitted to a committee of the whole council in respect of clauses 2, 18 and 31.

Motion carried.

Committee Stage

Bill recommitted.

Clause 2.

The Hon. P. HOLLOWAY: Before I move the amendment to clause 2, I think it is appropriate that I answer a couple of questions that were raised during the debate we had on this bill last week. First of all, the Hon. Mr Lucas asked a question concerning the number of ex gratia payments made in the last two financial years under the First Home Owner Grant provision. I have been provided with the following information. In the last two financial years, there has been only one ex gratia payment approved in respect of the First Home Owner Grant provisions.

In the case in question, the eligible transaction occurred on 17 November 2008. If the applicant had been eligible for the First Home Owner Grant, in addition to receiving the existing $7,000 First Home Owner Grant and the First Home Owner Bonus Grant of $4,000, they would have also been eligible for an extra $7,000 made available under the Australian government's First Home Owners Boost Scheme.

The applicant in this case was technically ineligible as he had held a previous relevant interest in residential property in South Australia before 1 July 2000. However, after reviewing the extraordinary circumstances of this matter, the Treasurer decided that strong grounds existed for relief to be provided and accordingly he approved an ex gratia payment of $18,000, which was equal to the amount of the first homebuyer benefits to which the applicant would have been entitled had he been eligible in the first instance.

The Hon. Mr Parnell also asked some questions regarding the legislative provisions for EPA sustainability licences. He said:

The government has been doing this already [issuing sustainability licences] for a year within the existing legislative provisions. What is the particular need for these changes?

The Minister for Environment and Conservation has been advised that the changes were proposed so that legislation can formally recognise the voluntary agreement under the act, which will move it forward from the successful trial phase that has been conducted to date. The Hon. Mr Parnell asked:

What I would like the minister to clarify is the extent to which the environmental sustainability agreements will, in fact, become binding if these changes are made to the Environment Protection Act by virtue of this budget bill?

Again, the Minister for Environment and Conservation has been advised that sustainability licences are non-binding agreements that will be negotiated only with the top performing organisations, based on a well-established record of working beyond compliance. A significant aspect to their implementation is to provide a tangible recognition of beyond compliance achievements to encourage other licensees to improve their performance and realise similar goals. Finally, the Hon. Mr Parnell asked:

So, I understand that, whilst the government is now proposing to move to sustainability licences, no change was necessary to the specific Whyalla steelworks legislation, and I ask the minister why that was not necessary in that case?

Again, the Minister for Environment and Conservation has been advised that the OneSteel sustainability licence has no bearing on the Whyalla Steelworks Act 1958. Gaining such a licence indicates OneSteel's success in engaging the local community and foreshadows the company's transition to direct EPA licensing in 2015, when the Whyalla Steelworks Act 1958 ceases. Having addressed those two matters, I now move:

Page 5, line 7—Leave out 'Part 2' and substitute 'Parts 2 and 5A'

This matter was discussed at some length when the parliament last sat. Following a question asked by the Hon. Mr Lucas, the government became aware that the Statutes Amendment (Budget 2010) Bill had not amended the Parliament (Joint Services) Act 1985 to cover those public servants working under that act. That was an oversight, and I introduced these amendments. The council agreed that we consider those substantive amendments, and this is the last remaining clause, involving a consequential amendment stemming from the debate we had at that time.

The Hon. R.I. LUCAS: Just to clarify, I am assuming that all these amendments, from the government's viewpoint, are part of the same package?

The Hon. P. HOLLOWAY: The other clauses that we are recommitting relate to the issue of registration labels, with some clarification of that. Clause 2 is the only clause that relates to the Parliament (Joint Services) Act, and this is a consequential amendment on those matters that we have considered.

The Hon. R.I. LUCAS: I thank the minister for clarifying that. Can I then clarify the issue of these parts coming into operation on 11 July. Will that, as it relates to the Joint Services staff, mean that the government's restrictions will operate at the same time as the restrictions for other staff of Parliament House?

The Hon. P. HOLLOWAY: I believe it was always the government's intention that we would deal with the public sector universally in this matter. I have said that it was overlooked, when the various acts were considered, that the Parliament (Joint Services) Act had its own long service leave provisions, but my understanding is that it was always the government's intention that this would apply uniformly.

The Hon. R.I. LUCAS: I understand what the government's understanding and intentions were. I just want to clarify that, if the parliament passes this particular provision for 11 July, will that mean that all staff of Parliament House, whether they are employed under Joint Services, Legislative Council or House of Assembly, will now be treated exactly the same in terms of the time of the restrictions that the government is introducing in its legislation?

The Hon. P. HOLLOWAY: My advice is that the relevant public servants are under the control of the President and the Speaker. They are not public servants as such: they are employees of the parliament. So, my advice is that it is a matter for the President and the Speaker to determine the matter. We will have to talk nicely to the President.

The Hon. R.I. LUCAS: I do not exactly understand that. Is the minister now indicating that, if the President and the Speaker do not listen to the nice entreaties of the minister and the government, they can make arrangements in relation to their staff different from those covered by the Joint Services provisions of this legislation?

The Hon. P. HOLLOWAY: The amendment we are talking about now concerns the commencement date, and it seeks to leave out part 2, which is that part of the act that refers to other public servants, and to substitute parts 2 and 5A. Part 5A is the new substantive clause that changes long service leave provisions for members under the Parliament (Joint Services) Act.

The fact that they are being joined together means they will apply together. In terms of the commencement of this particular part of the act, they would obviously apply together, as they are now linked under the commencement provision. We are pointing out that those staff are actually under the control of the Speaker and the President so we need to acknowledge that but, in relation to this bill, which specifies their conditions, it will commence on the same day as it does for other members under the Public Sector Act.

The Hon. R.I. LUCAS: That is a different answer to the one I got to my earlier question, but I am assuming we might have arrived at the accurate description of the position, and that is that all staff of Parliament House in relation to the government's intentions will now be treated equally and that the potential for some staff of Parliament House to be treated in a different fashion to others, as was possible under the original government bill, has now been stopped by the package of amendments, some of which we passed two weeks ago, and the concluding amendment we are passing today. That is now my understanding of the position, and certainly from that viewpoint from two weeks ago, without going over the debate again, it is good industrial principle at Parliament House if everyone is in or everyone is out in relation to these changes.

A situation where some were covered by the legislation and some were not, or some were being covered at a different time than some others, was obviously not a recipe for good industrial relations here at Parliament House.

The government is now confirming that, with this amendment and the others we have passed, all staff at Parliament House, no matter who technically employs them—whether it be the House of Assembly, the Legislative Council or the Joint Services Committee—in relation to these provisions will be treated equally. On that basis on behalf of the Liberal Party we support that proposition and will therefore support this amendment as well.

The Hon. P. HOLLOWAY: I acknowledge the comments the Hon. Mr Lucas has made, and it would have been anomalous to have had different treatment of staff in similar situations. That is why the government has moved quickly to correct it, and we thank the opposition for its support.

Amendment carried; clause as amended passed.

Clause 18.

The Hon. G.E. GAGO: I move:

Page 14, after line 28 [clause 18(1), inserted subsection (1aa)]—Delete inserted subsection (1aa) and substitute:

(1aa) However, subsection (1) does not apply to a person who drives a motor vehicle other than a heavy vehicle, or causes such a motor vehicle to stand, if the person proves that he or she—

(a) drove the motor vehicle, or caused the motor vehicle to stand, in prescribed circumstances; and

(b) did not know that the motor vehicle was unregistered.

(1aaa) For the purposes of subsection (1aa), a person may prove a matter referred to in that subsection by furnishing to the Commissioner of Police a statutory declaration in accordance with any requirements prescribed by the regulations.

As I indicated previously, the government had some concerns about the amendment from the Hon. Mr Darley, put through and supported in this place during the last sitting week. As discussed in that debate, I stated that I had been advised that a loophole in the law was likely to be created by that amendment, although unintended. The amendment would also enable an employee who possibly did know that a vehicle was unregistered and drove it anyway to decline to give evidence in a court and thereby make it extremely difficult for police to prove the offence.

As well, the amendment, I have been advised, will cause real on-road enforcement problems for police through the creation of two classes of driver: employee and ordinary driver. The police are concerned that officers will not be able to be sure which class of driver they have or know which way to proceed in a particular situation, which could lead to expiation notices being issued that then need to be withdrawn. Mr Darley's amendment also adds a level of complexity that is not necessary, and therefore time and expense, to prosecutions.

The government tabled this amendment on Friday 29 October as a compromise that has been made necessary by the support in the council for Mr Darley's amendment, because the bill shifts the emphasis of ensuring a vehicle is registered from the driver to the owner. The government believes the driver defence as originally provided in the bill does not require any amendment. It believes that SAPOL would responsibly and appropriately take drivers' explanations and would place a greater focus on the owner offence.

The amendment, however, retains the Hon. John Darley's proposed protection for employees, but instead of making the prosecution prove that the employee knew the vehicle was uninsured, which could require that the employee go to court anyway, the amendment before the committee allows the employee to provide police with a statutory declaration that they did not know the vehicle was unregistered and that they were required to drive the vehicle in the course of their employment.

This amendment balances convenience for people required to drive vehicles in the course of their employment against the undesirable blanket exemption and ameliorates the potential loophole I have referred to. It ensures that employees would rarely be required to go to court but does require them to make a declaration as to their circumstances and state of knowledge.

If the employee provides this statement, the offence 'drive unregistered' will not apply and they will not have to go to court to defend the unregistered vehicle driving offence. If the employee gives the commissioner a statutory declaration containing information required by regulations, that will be the end of the 'drive unregistered' offence. The police cannot then choose to prosecute the employee for that particular offence.

I hasten to assure members that regulations will not require long lists of evidence that must be provided for the record and agreed in consultation with the Motor Trade Association. The regulations will only require basic information to identify those involved to show that the employee falls within the ambit proposed in 1AA. It would include: the employee's name and address; the employer's name and address; the registration number, or other identification, of the vehicle; that the employee was not the owner of the vehicle; that the employee was required by the employer to drive the vehicle in the course of their employment and that the employee drove the vehicle in the course of their employment; and that the employee did not know that the vehicle was unregistered.

If an employee provided information in a statutory declaration about a vehicle and police then investigated the owner offence relating to the same vehicle and found evidence that the information in the statutory declaration was not true, the employee could then be prosecuted for submitting a false statutory declaration under section 27 of the Oaths Act.

The Hon. J.A. DARLEY: Having had the opportunity to further discuss the amendments proposed by the government, and having discussed these matters with the police, the Motor Trade Association and other interested parties, I will be supporting the government's two amendments.

The Hon. A. BRESSINGTON: I have a question. Can the minister explain why it is the employee who fills out the statutory declaration, and not the employer, who is responsible for whether the vehicle is registered or not?

The Hon. G.E. GAGO: I have been advised it is the employee because the offence is driving an unregistered vehicle. The onus is then on the person who is driving the vehicle to demonstrate either that they were not the owner of the vehicle or that the other matters I have outlined applied—that they did not know the vehicle was unregistered, etc. So, it relates to the offence, which is driving an unregistered vehicle.

The Hon. R.I. LUCAS: The opposition congratulates the Hon. Mr Darley for having raised the issue and persisted with it over the last 10 days. I have had a series of discussions with the Hon. Mr Darley and I know that he has been in contact with, in particular, the Motor Trade Association, which I understand from the honourable member is happy with the potential final resolution of this issue.

They may have had an issue with the matters to be covered by regulation, in terms of whether they should be in either a regulation or an act. The minister has read onto the record and outlined the sorts of issues that will be covered in the regulation. The parliament, of course, always retains the power to disallow regulation should there be concern. If there is concern by an industry association like the Motor Trade Association and it can convince enough members of parliament, then such a regulation can be disallowed at some stage in the future.

So, on that understanding, the opposition not only congratulates the Hon. Mr Darley but indicates its willingness to support what is a compromise amendment. We indicated that we agreed with the principle of the issue raised by the Hon. Mr Darley. We outlined two weeks ago that, if there was a better way of drafting the amendment to achieve the original purpose without causing any unintended consequences, then we would be prepared to consider such further amendment. That is indeed what has occurred in the last 10 days or so and, on the basis that the government has moved the amendment, the Hon. Mr Darley has indicated his support and I understand the Motor Trade Association is supporting it, we indicate that we are prepared to support it as well.

Amendment carried; clause as amended passed.

Clause 31.

The Hon. G.E. GAGO: I move:

Page 1, after line 2 [clause 31(1), inserted subsection (1aa)]—Delete inserted subsection (1aa) and substitute:

(1aa) However, subsection (1) does not apply to a person who drives a motor vehicle other than a heavy vehicle, or causes such a motor vehicle to stand, if the person proves that he or she—

(a) drove the motor vehicle, or caused the motor vehicle to stand, in prescribed circumstances; and

(b) did not know that the motor vehicle was uninsured.

(1aaa) For the purposes of subsection (1aa), a person may prove a matter referred to in that subsection by furnishing to the Commissioner of Police a statutory declaration in accordance with any requirements prescribed by the regulations.

This is consequential.

Amendment carried; clause as amended passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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