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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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STATUTES AMENDMENT (COMMUNITY AND STRATA TITLES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 July 2011.)

The Hon. S.G. WADE (17:16): Now that the business of the house has resumed, I rise to speak on the Statutes Amendment (Community and Strata Titles) Bill. The Attorney-General tabled the Statutes Amendment (Community and Strata Titles) Bill 2011 in the House of Assembly on 7 April 2011. A draft of the bill was subject to public consultation in 2010. The bill seeks to improve the protections for consumers who buy into or own units in strata and community titled developments.

The bill followed a 2003 discussion paper which led to a 2008 bill under former attorney-general Atkinson. The opposition decided in May not to support the passage of the bill until the submissions to the public consultation on the bill are made available. This is a recurring theme under this government. In fact, I will remind council that earlier today we had issues of consultation in relation to the directors' liability bill, where the government had failed to consult with the people who were going to actually experience the legislation. We were told that because a national organisation had community consulted on the principles, the local people did not need to be consulted on the details of the legislation; they lost that right.

We also had that issue in relation to the previous legislation, the Development (Building Rules Consent—Disability Access) Amendment Bill. We also had the farcical situation of the minister informing us at the third reading stage, where members had no opportunity to unpack the advice given, that Minda, one of the most significant disability service providers, had not even been consulted in relation to the legislation. Of course, the question that that raises for us is: if the government botched the consultation so poorly that it was not even willing to consult a major disability service provider, what other entities in the disability sector had not been consulted?

As if to provide us with a trifecta, this bill also raises significant issues in terms of the failure to consult. The Attorney-General is very sensitive on the issue of consultation. Earlier this year, I highlighted how many matters he had out for review and how many matters there were where the review process either had not concluded or had concluded but the decision had not been made.

I suspect that was one of the factors that led the Labor caucus to decide that this man was not worthy to be premier. As of February, he was touted as the putative premier, the premier-in-waiting to replace Mr Rann; then, when the knives came out and the bodies fell, it was not Attorney-General Rau who was to take the mantle but education minister Weatherill. So even early this year, issues were raised in terms of the capacity of the minister to make a decision once he had undertaken consultation.

As I said, this bill also raises significant concerns about the capacity of the minister to consult. We made the decision not to support the bill in May—when I say 'made the decision', that was in the context of the joint party room processes of the Liberal Party—and one of the factors was that we did not believe the consultation was adequate and that we wanted to see the submissions to the public consultation on the bill made available.

The government seems to take the view that when the public makes public comments about a public bill somehow that information becomes private information of the government. The opposition does not take that view. We believe that bills are the province, if you like, of the parliament. The government, of course, through the processes of the Westminster system, is usually the group that provides legislation, but not exclusively; any member of this house can provide legislation. However, it is logical that the group of parliamentarians who have access to the bureaucracy, access to some of the best advisers on these matters, should be the group that primarily develops legislation.

But just because we allow the executive to take the lead in developing legislation does not mean that it somehow owns the process. I am quite offended, as I know other members of this house are, by the proprietorial approach this government takes to the outcomes of consultations. The Hon. Mark Parnell has raised this issue in the context of environmental consultation, and I seem to recall that the Hon. Mark Parnell and his Greens colleagues have suggested that perhaps we should develop mechanisms for promulgation of input to consultation through things such as websites.

I understand that this is a practice of some public consultation mechanisms, and in that regard I would like to make a positive comment about the Attorney-General's Department and say that I believe the practice of putting the discussion papers on the website is well established in that department. That is welcomed, but—and as I am sure the Hon. Mark Parnell would say—that is only the first step. The first step is to put out the discussion paper. The community is entitled not only to the government's perspective on what it is trying to promote but also to be part of a dialogue with other stakeholders. So I think it is important for us, as a parliament, to say to the executive, 'If you think a matter is so significant that it deserves to have public consultation, and the matter will lead to a bill in the parliament, then you should allow members of the community to have access to submissions. In particular, you should allow members of the parliament to have access to submissions.'

It may be that a website is not the best approach, but it could be a shared directory within PNSG or the provision of USBs with submissions included. It is not beyond the wit of technology to inexpensively make this material available. I know some government members will say, 'Use your rights under the Freedom of Information Act to FOI the submissions.' Well, I do not believe that that respects the principle I have already suggested to the council, which is that governments do not own these documents. It is a public consultation on a public bill headed for a public discussion in the parliament.

The government might say, 'If you don't want to do FOI, why don't you go and ask the groups what they think?' I would say to the government, 'We don't know who to ask.' Often, the key stakeholders are clear but, even then, the government did not consult with the Australian Institute of Company Directors about the directors' liability bill. This government seems to be averse to consultation per se.

Even if we can identify the key stakeholder bodies that should be consulted, who are we to say that the other 1.4 million South Australians have no interest in the bill? Who are we to say that the unintended consequences of a piece of legislation have not been identified and raised with the government by a party? The government may be choosing to ignore it, and the bill will be poorer for it.

The Hon. A. Bressington interjecting:

The Hon. S.G. WADE: The Hon. Ann Bressington disorderly interjects and exclaims, 'No!', as though this would never happen. So, I am taunted to give you an example.

The ACTING PRESIDENT (Hon. I.K. Hunter): The honourable member's interjection was out of order, as would be any response to it.

The Hon. S.G. WADE: If I were reflecting on the point: is it conceivable that the government could ever ignore public consultation that might otherwise be of interest to the parliament, I would be reminded of the progress of the summary offences weapons bill through this place. On that occasion I took the opportunity to do an FOI application, and there were a number of submissions which, to be frank, I did not expect. I did not know that the scouts association would get in contact with the government and highlight how problematic it regarded the legislation to be. I must admit that, if I was a parliamentarian discussing the summary offences weapons act, I would not think, 'Gee, I need to speak to the scouts association about this one.'

I think the fact that this government takes a proprietorial approach to public consultation—a view generally that submissions should not be provided to non-government members—means that the legislative process is all the poorer. I must admit that I have engaged the Attorney-General on this and, in principle, he has indicated his willingness to share consultation; but, time and time again, we find that we are asking for the outcomes from consultation, and they are not forthcoming. This bill is a case in point.

As I said, in May, the opposition made the decision not to support the bill until submissions to the public consultation on the bill were made available. The wisdom of that decision was highlighted by events since that time. Since that time, we have been made aware of serious doubts by industry stakeholders on the quality of the consultation. Some of the statements offered to us by industry stakeholders are directly contradictory to statements made by the Attorney-General in the other place.

Challenged with this inconsistency in the other place, the Attorney-General turned to abuse of this council. In some sort of sweet irony, he actually chose to lampoon this council for its workman-like consideration of the summary offences weapons legislation. I would defy an independent observer to look at that bill as it came into this place and look at the bill at the end of the second reading stage and come to the conclusion that it had not been improved by the work of this council. But, no, the Attorney-General, with the arrogance that can only come from a government that is tired, lazy and well past its use-by date, went into a tirade in the other place against this council. Honourable members will make their own judgement on that.

Addressing the particular issue of the inconsistency in the statements, in his second reading speech on 7 April 2011, the Attorney-General said—this is not a full quote of the speech, just an excerpt:

In light of the significant changes to the draft bill, the revised bill was released for a further... period of public consultation in December 2010, as a result of which further adjustments have been made to the bill.

During consultation on the draft bill comment has been received from over 50 respondents, including the National Community Titles Institute (NCTI), the Property Council (SA Division), the Commissioner for Consumer Affairs, the Law Society, the Legal Services Commission, the Real Estate Institute of South Australia, the Australian Institute of Conveyancers (SA Division), several strata managers and a number of strata owners.

This is the key phrase: the Attorney-General advised us there was broad support for the measures contained in this bill.

Subsequently, in the second reading speech, the Attorney-General said that the NCTI (which I remind members is the National Community Titles Institute):

and individual body corporate managers who commented supported the proposed disclosure and insurance requirements for managers. The NCTI was concerned that the proposal to allow contracts with managers to be terminated at any time could lead to managers suing for damages for termination without cause. However, the effect of this provision is that it will prevent such litigation.

What occurred subsequently is that the opposition received a number of communications, including from the NCTI, expressing real concerns about the consultation. In fact, the representations made by those stakeholders, including the NCTI, was that it would not be fair to say that they provided broad support for the measures contained in the bill. So, faced with that situation, in July at the second reading stage of this bill in another place, the member for Bragg said:

I rise to speak on the Statutes Amendment (Community and Strata Titles) Bill 2011 and indicate that the opposition will not be supporting the passage of this bill and, specifically, we will be seeking that the government withdraw it and undertake a substantive consultation with the stakeholders and ensure that any future bill addresses development contract enforcement. That is our position and that is what we will be asking the government to do. Its passage through this house today, therefore, given that we also can count, will not be with our blessing.

The history of this legislation is that the Attorney-General tabled this bill on 7 April 2011, and there had been a draft that had been presented, apparently, for some public consultation in December 2010. One of the difficulties that the opposition has, may I say at the outset, in understanding and therefore either appreciating, acknowledging or recognising the level of consultation in these exercises and therefore, if appropriate, our acceptance that it has either been adequate or, indeed, it is comprehensive enough to satisfy us, is that there is a complete cone of silence and shield of secrecy around who gets told what, what submissions they are invited to present and what they say.

Further in the second reading contribution, the honourable member said the following:

We have spoken with some of the key legal stakeholders, bearing in mind that the provision of documentation from the government as to what has been received has been woefully inadequate and that is his impossible for us to make an assessment without that information.

I remind honourable members that that statement was made on 27 July and we made it clear at that point that we did not feel able to fully assess the adequacy of the consultation without the information. The government is putting its side of the story, saying, 'This is what the industry told us. Trust us,' but it has not provided that information to the Liberal team in the Legislative Council. Further in the honourable member's contribution, she said:

I ask the Attorney-General to provide the opposition with the submissions that have been received so that we may properly assess what may be beneficial support for some of the introduced reforms of the government and enable us to properly consider this bill.

That is the third example of the opposition requesting the consultation material. Later in the contribution the honourable member for Bragg made the following comment that the Attorney-General's comment:

highlights the importance of all members—

and I take it from this that the member was talking about all members of parliament—

having the opportunity to view these submissions and be able to generally consult and nut out where we might make improvement (and everything can always be looked at from the perspective of improvement), where the ills are that need to be remedied and how we might practically apply that.

So, that is the fourth example of the opposition in the other place asking for disclosure. That one is my favourite because it is more respectful to the non-opposition members of the parliament because she is explicit in saying that it is for all members. I would stress this: this is not just a matter of the opposition and the government swapping papers as though they were litigants in a court case.

As I said earlier, I think there is value, where appropriate, in consultation submissions going onto websites. I know that some of our parliamentary committees have that practice, and I think it is good to have that public dialogue. However, particularly in relation to parliamentary business, I think that all parliamentarians are entitled access to relevant information. They should not have to rely on FOI. To be frank, if we all had to rely on FOI to get hold of all government submissions we would need more than just one room and one Parliament House.

We as an opposition think that this is yet another example of the government failing to consult, which is making it extremely difficult for us as parliamentarians and legislators to do our job. I reiterate the request made on at least three occasions by the member for Bragg in the other place. I note that those four requests were made on 27 July 2011, which is six or seven weeks ago. The opposition has not received any further information or documentation in response to our requests, so we are not in any better position to assess the adequacy of consultation or, for that matter, to balance the merits of the government's proposals versus the industry proposals.

We will be seeking the support of other members of council to insist on full disclosure, not just to the opposition but to all members of the council who are interested. In that context, I would urge the government, if the government is serious about this piece of legislation finding its way onto the statute book, to expeditiously facilitate access by members of the opposition and other members of this council so that due consideration can be given. With those remarks, I seek leave to continue my remarks.

Leave granted; debate adjourned.

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