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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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ROXBY DOWNS (INDENTURE RATIFICATION) (AMENDMENT OF INDENTURE) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clauses 3 and 4 passed.

Clause 5.

The Hon. M. PARNELL: Clause 5 of the bill deletes and adds definitions to the legislation. The first definition that is deleted is the definition of the joint venturers. Throughout the bill we find that wherever the words 'joint venturers' appear it is deleted and replaced by the words 'the company'. The regime created by this act is that special provisions apply to, previously, the joint venturers, now, the company. When we look at this legislation we can track what those special arrangements are, but there is one other piece of legislation that refers to the joint venturers and that is the Radiation Protection and Control Act. I refer the minister to section 5 of that act, which provides:

the Joint Venturers has the same meaning as in the Roxby Downs (Indenture Ratification) Act 1982.

So, the first thing to notice is that the Radiation Protection and Control Act now refers to a definition and concept that no longer appears in the head legislation. The definition of joint venturer has been removed, yet it is still referred to in the Radiation Protection and Control Act. For the benefit of members, I might explain why that is important.

Under the Radiation Protection and Control Act, there is a schedule to the act. The schedule is headed, 'Application of this Act to the Roxby Downs Joint Venturers'. When you go through that schedule it has some 13 clauses, and the last of those clauses, clause 13 of the schedule to the Radiation Protection and Control Act, basically states that there are a number of sections in the Radiation Protection and Control Act that do not apply to the joint venturers. I will not go through all of those sections in detail, but first of all, there is a requirement in the act, under section 24, that:

The minister must not grant a licence under this section unless satisfied that the proposed operations would comply with the regulations.

By the schedule, the joint venturers were exempted from that provision. In other words, the joint venturers do not have to satisfy the regulations, they have a special exemption. Another provision which the joint venturers are exempted from having to comply with relates to the minister needing to consult with the Radiation Protection Committee under section 35 of the act, which provides that before determining an application for a licence the minister must refer the application to the committee for its advice and give due consideration to the advice of the committee. That does not apply to the joint venturers; their licence does not have to go to the committee and the minister does not have to have regard to the committee's advice.

There are other regimes, such as the ability of the minister under the act to revoke or vary the condition of a licence. That does not apply to the joint venturers. Similarly, the minister has the power to suspend and cancel licences under section 40. That does not apply to the joint venturers. Finally, the licence regime under the Radiation Protection and Control Act allows for a review of decisions by the Supreme Court. That does not apply to the joint venturers.

My question is a fairly simple one, to start with; it is a matter of statutory interpretation. Given the deletion of the definition of joint venturers from the Roxby Downs (Indenture Ratification) Act, does the schedule to the Radiation Protection and Control Act apply to the company?

The Hon. G.E. GAGO: I have been advised that, under the Radiation Protection and Control Act, 'the joint venturers' would be read to mean 'the company', and that if there was any doubt regulations can be passed under the Roxby Downs act to make that clear or to provide whatever clarity is necessary.

The Hon. M. PARNELL: I will get the minister to clarify a little bit more. She said it 'would be read'. Can the minister point me to the section of the act or the indenture which says anywhere that a reference to the joint venturers in an old act is now a reference to the company in the new act, because I have hunted through it and I cannot find it.

The Hon. G.E. GAGO: I have been advised that it is a matter of statutory interpretation. It is not actually written down, but it is a precedent that has been established.

The Hon. M. PARNELL: The minister's answer I think means that, on a wing and a prayer, they hope that if this thing ever gets into court, a court would take the initiative to, notwithstanding the deletion of the definition in the act, somehow pretend that the words in the act mean something different. The minister in her first answer said, 'Well, maybe we will need to pass a regulation.' My question is: if the government is admitting that it has this wrong, will the government now pass a regulation or will it now pass an amendment to the Radiation Protection and Control Act to fix up this mistake?

The Hon. G.E. GAGO: I have been advised that the government believes that the current provisions are adequate.

The Hon. M. PARNELL: I beg to disagree with the minister. This is clearly an oversight on any view of statutory interpretation. I cast no blame on the part of parliamentary counsel; I understand they did not write the indenture—they weighed into this part way through. A logical follow-up question that I will not ask is: if this is a mistake we have found, what are the other mistakes that we have not found? What are the other unknown unknowns, because clearly this is a matter that should have been addressed in the drafting of this act. So, whenever the government says how many years it has taken to get to this point, we can just point them to clause 5 and say, 'You couldn't even get that right.'

But I do have a question in relation to subclause (2) of clause 5. This inserts a new definition of the statement of environmental objectives, and this is a concept that comes from the Petroleum and Geothermal Energy Act 2001. Basically, under that act, someone wanting to carry out regulated activities in relation to oil or gas or geothermal has to have a statement of environmental objectives in force. If they do not do so, they are liable to a maximum penalty of $120,000. The Petroleum and Geothermal Energy Act also puts an obligation on licensees that they must comply with an approved statement of environmental objectives.

It is unclear (or maybe the minister can tell me whether it is clear) that, when it comes to exploration for oil or gas or geothermal energy within the 500 square kilometres or so of the special licence area, that could be undertaken by BHP Billiton, or it could be undertaken by third parties that have requested access. What I would like the minister to clarify is: which provisions of the Petroleum and Geothermal Energy Act would apply to licence holders, given that that is one of the acts that must be read down to be consistent with the indenture? How much of that act applies to these activities in this area?

The Hon. G.E. GAGO: I have been advised the whole act.

The Hon. M. PARNELL: So, by the whole act, that includes all of the criminal penalties. If I can expand that question further: would those penalties apply equally to BHP Billiton or to third parties?

The Hon. G.E. GAGO: I have been advised that, yes, if BHP has a licence.

The Hon. M. PARNELL: I ask the minister: is there anything in the indenture that could be relied on by BHP Billiton to avoid its liability under the act and to avoid criminal penalties under the act and, secondly, would any potential charges be required to be mediated, or could they be dealt with immediately in the criminal courts?

The Hon. G.E. GAGO: I think we are sort of wandering off the indenture bill somewhat. The indenture bill deals with mining, not gas and other geothermal exploration. If BHP Billiton wanted to pursue exploration in that area and obtained a licence, etc., it would be bound by the same provisions anyone else would is the advice I have received.

The Hon. M. PARNELL: That is the end of my questions on clause 5. I just make the comment that I would hope that BHP Billiton is out there looking for geothermal energy sources, looking for ways to offset some of the greenhouse emissions that will come from this venture.

Clause passed.

Clause 6.

The Hon. M. PARNELL: I have six amendments to this clause but before moving them, this particular provision of the original legislation as modified has been one of the most contentious because within this section is the list of acts which are specifically said not to apply to this project. That is not quite correct; it is not that they do not apply but they are to be read down so that they are consistent with the indenture. If there is anything in any of these acts that is more onerous than that required by the indenture, the act must be read down. The law of South Australia must be read down to be consistent with the indenture.

However, in this section that is being amended there are two provisions. The first provision talks about the whole of the laws of South Australia being subject to the indenture and then there is a specific list of legislation. Can the minister explain what the difference is between those two approaches? The first approach is to say that all laws of the state are to be read down, and then to go on to say, 'But without limiting the generality of that, here is a list of ones in particular that have to be read down.' What is the purpose of that structure? What is the difference between reading a law down generally and reading a specific act down because it is listed?

The Hon. G.E. GAGO: I have been advised that those listed specifically refer to the indenture or are ones that are most likely to impact on the indenture.

The Hon. M. PARNELL: Just so I understand the minister's answer: what the previous act did and what this amending bill does is to extract the acts that are most likely to relate to the indenture but it does not purport to be an exclusive list, in which case I will proceed to identify one act that I think does have implications—it is not on the list—and that is the Freedom of Information Act.

My question is: if there is a dispute between an applicant for documents under the Freedom of Information Act and the company—and I say at the outset that I am not talking about people applying to the company under the act because we do not do that; we apply to government agencies—and let us say the company does not want a member of the public or a member of parliament to have access to a document, how does the Freedom of Information Act and this indenture read together resolve that dispute?

The Hon. G.E. GAGO: I have been advised that the Freedom of Information Act would apply normally, so in the same way it would elsewhere.

The Hon. M. PARNELL: I thank the minister for her answer. It would be nice if that was correct, yet the history of the last 20 years shows that people who seek documents in relation to the Olympic Dam mine under the Freedom of Information Act are told that they cannot have those documents, either because of one of the exemptions under the act itself, or, more likely, because of the confidentiality provisions that are in the indenture act itself. The minister says that the act would apply. Do the confidentiality provisions of the indenture become part of the considerations of the agency when determining whether to disclose documents?

The Hon. G.E. GAGO: I have been advised that commercially confidential information is relevant in the consideration of all FOI deliberations, and it also has to be considered here.

The Hon. M. PARNELL: I understand what the minister is saying. The big difference, of course, is that whether something is commercially confidential or not could be considered by the Ombudsman, for example, because it is a claim that is made all time and it is often not found to have any basis in fact. Yet if there is a special contract between the state and the company that says that something is confidential, then it certainly makes it harder.

The minister said the act applies, so I will just get her to clarify one other point in relation to that. If there was a dispute, if someone went to a government department seeking documents and they were refused, can the minister clarify that they could go to the Ombudsman on an external review and that the Ombudsman would make the determination, that it would not need to go through any other process by virtue of the indenture? For example, there is an arbitration process in here for disputes between the government and the company. Can you clarify that third parties seeking documents would not have to go through that process?

The Hon. G.E. GAGO: I am advised that the dispute mechanisms under the FOI Act would apply.

The Hon. M. PARNELL: Sorry, the dispute?

The Hon. G.E. GAGO: The dispute mechanisms.

The CHAIR: Would you like to move your amendments?

The Hon. M. PARNELL: Yes, if it is the will of the committee. My amendments Nos 1 to 6 all relate to clause 6, and, if it is possible, I am happy to move them en bloc if it suits the committee. I move:

Page 4—

Line 6—Delete subparagraph (ii)

Line 8—Delete subparagraph (iv)

Line 16—Delete subparagraph (xii)

Line 17—Delete subparagraph (xiii)

Page 5—

Lines 20 and 21—Delete subclause (9)

After line 21—Insert:

(10) Section 7—after subsection (5) insert:

(6) Clause 7 of the Indenture does not apply to or in relation to any permit, consent, approval, authorisation, permission or determination of any kind whatever (including a determination that is required for obtaining the benefit of an exemption) under—

(a) the Development Act 1993;

(b) the Environment Protection Act 1993; or

(c) the Native Vegetation Act 1991; or

(d) the Natural Resources Management Act 2004; or

(e) the Radiation Protection and Control Act 1982.

I will just take a very brief moment to explain what these amendments would do. In this long list of acts that are to be read down in relation to the Roxby Downs (Indenture Ratification) Act, I have effectively picked out four or five of those acts to take them out of that list, to give extra attention to those particular statutes.

I have sought to remove the Development Act and the Environment Protection Act. Of course, the importance of removing that act is that there are a number of provisions that are important to the community. We have the public register under section 109; again, that would be caught by the confidentiality provisions of the indenture. The community will not have access to the same amount of information.

Notwithstanding the minister's answer in relation to freedom of information, the public register is a regime where you do not have to ask for the documents; they are automatically published, and I have no doubt that the full scope of documents will not be published. For example, the public register includes fairly new provisions that relate to contamination of land. I can bet you that the EPA's public register is not going to have details of the contaminated land around the tailings facility—for example, the eight million litres a day of toxic liquid waste that will escape from that facility that will not be recorded on the public register.

Similarly, in relation to the Native Vegetation Act, we know there will be a massive clearance of vegetation over many, many kilometres. According to the environment department's submissions to the EIS, from memory up to 40 kilometres from the mine site the drawdown of local water will impact on vegetation, such as myall trees. The Natural Resources Management Act, of course, is the act primarily dealing with, amongst other things, allocation of water resources. So, I am proposing to remove those from the act.

Members will recall that I think on at least one or two occasions I have actually moved in this parliament to remove the entirety of section 7 of this act. It is a section that basically says that this project is so important that there is not one law of South Australia—other than its own law that it wrote—that takes precedence over the commercial considerations of the company, as expressed through this indenture. I think that this is an appalling section, and I think the whole thing needs to go.

I have moved a few tokenistic amendments, you might say, to draw attention to it, but really this particular section goes to the heart of what is wrong with this legislation: the fact that we have adequate laws to do with mining, water and vegetation and they are all to be read down in the interests of this company and this project. Whilst I did not declare this at the outset, it is my intention to move rapidly through the amendments. If I can do them in blocks, I will. I am not proposing to divide on the amendments, but I will be dividing on the clause.

The Hon. G.E. GAGO: The government opposes this series of amendments proposed by the Hon. Mark Parnell to remove the Development Act 1993 as being construed subject to the provisions of the indenture, which is to prevail to the extent of any inconsistency with the Development Act. This primarily relates to indenture clause 28—Major Development, which provides that only the major developments or project provisions of the Development Act are to apply to land areas for a special mining lease and for any infrastructure supporting the mine development. It is only appropriate that the process for the highest level of development assessment and associated public consultation available in South Australia apply to future applications for the development of the Olympic Dam and any other mining prospects.

The Hon. D.W. RIDGWAY: I rise on behalf of the opposition to indicate—as Mr Parnell and other honourable members would be well aware and as was indicated in the other place and here—that we will be supporting this bill without amendment. We had extensive briefings. We asked days and days of questions prior to this bill coming to the parliament, and the opposition will not be supporting this group of amendments or any other amendments.

Amendments negatived.

The committee divided on the clause:

AYES (16)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Hunter, I.K. Kandelaars, G.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.
NOES (4)
Bressington, A. Franks, T.A. Parnell, M. (teller)
Vincent, K.L.

Majority of 12 for the ayes.

Clause thus passed.

Clause 7.

The Hon. M. PARNELL: I have a very simple amendment to delete the clause. The government's amendment is fairly straightforward in that it changes the references from 'joint ventures' to 'the company'. We canvassed that before. They have done that fairly diligently throughout the bill, but they missed the big one. They missed the one in the Radiation Protection and Control Act and now they are just on a wing and a prayer hoping that if it ever gets to court that the court will do some imaginative statutory interpretation.

In relation to the merits of this particular clause, it relates to licensing in respect of the mining and milling of radioactive ores. Both the current section 8 and this proposed section 8 requires the minister, or other body, to give licences in relation to radioactive material, such as under the Radiation Protection and Control Act, in respect of the mining and milling of radioactive ores. Presumably the licensing body would be able to attach conditions, but my understand of this is that they could not attach any conditions that had the effect of preventing the company from dealing with these materials. So, my question of the minister is: is that correct? Are they effectively obliged to licence?

The Hon. G.E. GAGO: I have been advised, yes.

The Hon. M. PARNELL: So, in relation to radiation, because that is the subject of the clause, I have a number of questions that relate to the safety of workers in the wider community, safety from exposure to radiation. Could the minister confirm that when there is a reference to the phrase 'the minister' in approval condition No. 34, which is headed, 'Radiation'—this is a condition that requires a dose constraint for members of the public for radiation exposure and sets a limit of 0.3 millisieverts per year, and the words are 'unless otherwise agreed by the relevant minister'—is the relevant minister the Minister for Sustainability, Environment and Conservation or is it the minister under the indenture act?

The Hon. G.E. GAGO: I have been advised that it would be the minister responsible for the radiation act.

The Hon. M. PARNELL: I thank the minister for her answer. I asked the task force earlier whether the 0.3 millisieverts per year exposure limit would also apply to non-designated uranium mine workers at the Olympic Dam site in the special mining lease area. I was told that the dose constraint of 0.3 millisieverts per year was specific to members of the public and that that level will not be applied to workers. My question of the minister is: how will this dose constraint be monitored and assessed, and by whom?

The Hon. G.E. GAGO: I have been advised that it will be monitored by BHP and regulated by the EPA.

The Hon. M. PARNELL: I asked the task force in relation to this about how the public would be notified of the results, and the minister has just said that BHP will do the monitoring but that the EPA will be responsible. I was told in relation to public notification, 'As is current practice for the operating Olympic Dam mine, results of monitoring and compliance would be made publically available on the EPA website as part of the annual radiation protection report for Olympic Dam.' My question of the minister is: first, how much of a time lag is there between the actual monitoring data being collected and its reporting; and, secondly, is there any reason why the data could not be published on the website either more frequently or in real time?

The Hon. G.E. GAGO: I have been advised that it is in fact the accumulation of an annual dose that is the standard and that therefore it would be reasonable to report on an annual basis. In terms of the time lag, I do not have the answer to that detail, except to say that the data is required to be available for that annual report.

The Hon. M. PARNELL: If we turn now to the radiation exposure of workers rather than the general public, the task force confirmed to me that all uranium mine workers are subject to the regulatory occupational dose limit of 20 millisieverts per year, rather than the current public exposure limit of one millisievert a year, and that this includes train drivers, who would be transporting the uranium-infused copper concentrate, and truck drivers, who would be transporting the uranium oxide.

I posed the question of the task force about why the workers at Roxby Downs are not protected by the higher standard, which is the standard set by the Independent European Committee on Radiation Risk. It recommends a total ionising radiation permissible dose standard of five millisieverts per year for designated nuclear and uranium mine workers, rather than the much higher current standard of 20 millisieverts. The response I got from the task force was that Australia does not base its regulatory standards on the Independent European Committee on Radiation Risk but, rather, on the recommendations of the International Commission of Radiological Protection.

The task force pointed out that the ICRP, in its latest recommendations, concluded that the existing dose limit that it had recommended was still appropriate. The question to which I did not get an answer was: what is the expected total ionising radiation dose for the population of designated workers at the proposed expanded new open pit Olympic Dam mine, or in the special mining lease, compared with that at existing operations—so, a comparison between exposure for existing workers and potential exposure for new workers?

The Hon. G.E. GAGO: I would just ask the honourable member to explain the question? I do not actually understand what he is asking me for.

The Hon. M. PARNELL: The recommended occupational limit, as I have been saying, is 20 millisieverts per year, and it is averaged over defined periods of five years, with further provision that the effective dose should not exceed 50 millisieverts in any single year. The question I asked is: what is the expected total ionising radiation dose for the population of designated workers at the proposed expanded new open-pit mine compared with that at the existing operations? Clearly, there are different risks and different forms of exposure. What is the outcome expected to be? How much more or less exposed will workers at the new operation be compared with workers at the current operation?

The Hon. G.E. GAGO: It is good news! I have been advised that the existing average is 3.5 millisieverts, with a maximum of nine, and under the new arrangements, the average is expected to be 3.5 millisieverts, with a maximum of eight millisieverts. So, in fact, it is less.

The Hon. M. PARNELL: I thank the minister for her answer. I will just follow that up by saying that both of those standards would not comply, at least at the higher range, with the European Committee on Radiation Risk standards but they clearly do comply with the International Commission on Radiological Protection standards. My question is: is there any reason why the government prefers the international commission's standards over the European committee standards, other than the fact that the exposure allowed is much higher under the international standard? Is there any other reason why that standard is preferred over the European standard?

The Hon. G.E. GAGO: I have been advised that Australia does not base its regulatory standards on the independent European Committee on Radiation Risk but on the recommendations of the International Commission on Radiological Protection (ICRP). The ICRP, in its latest recommendations (Publication 103), has concluded that the existing dose limits that are recommended in ICRP Publication 60 continue to provide an appropriate level of protection. The recommended occupational limit is 20 millisieverts averaged, and we have talked about that. The ICRP is, in fact, the recognised group.

The Hon. M. PARNELL: In relation to worker safety, I asked the task force: are there any plans to conduct a health study of past, current and future uranium mine workers in South Australia, including at Olympic Dam, to ensure worker health and, if not, why not?

I made the point that without such a study how can the government say with any confidence that the current monitoring and protection process at Olympic Dam for workers is adequate? The government's response was, 'No health study of past, current and future uranium mine workers is being considered by the government. All workers are monitored and health checks provided by the company each year.'

What I would like the minister to answer is: whilst that might seem adequate for people who are continuing to work there on site, how does the government or the company track people who may have worked at the mine in the 1980s or 1990s and gone on to other fields of endeavour? They may have contracted cancers. Is there any tracking or follow-up so that every exposed worker is on some database somewhere and you can find out what might have happened to them and what their health history might have been? Is any record of that type kept and, if not, why not?

The Hon. G.E. GAGO: I have been advised that there is no evidence that a health study is warranted. I also draw to your attention that the national dose register is being implemented by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA).

The Hon. M. PARNELL: I would like to correct what I said before. I had not actually posed that second part of my question to the Olympic Dam task force; it was inadvertently included in the same box in my notes, but I did ask the question just now, clearly. The minister has said that there is no proven need for that type of follow-up. My question would be, if evidence emerges that exposure leads to some health impacts, 20, 30 or 40 years later, is there anything to prevent this follow-up work being done? If it added to the expense of BHP Billiton in tracking these former workers down, is that a cost that could be imposed on the company or would the company turn around and try to impose that cost back on the state? Is there anything in the indenture that stands in the way of doing these follow-up studies if it turns out that they are required?

The Hon. G.E. GAGO: I have been advised no and that obviously it is a hypothetical situation that the honourable member is raising. Clearly parties would assess any evidence or research that might come to light in the future and take responsible action as required when needed.

The Hon. M. PARNELL: I do not accept that it is hypothetical. We know that there is no safe radiation dose and we know that the impact on human health can be latent for a very long time. It is not that different in many ways to asbestos. People exposed, often in childhood, develop problems later on. I will not pursue that. I will move directly to moving the amendments that I have tabled. I am not sure if I can do them together. The first one is to delete the clause of the bill and the second one is to delete—

The ACTING CHAIR (Hon. Carmel Zollo): I understand we have to put the clause first.

The Hon. M. PARNELL: Yes, okay. My amendment is first of all to delete the clause. I will move my second amendment after that.

The ACTING CHAIR (Hon. Carmel Zollo): You do not need to move it, apparently. I will put the question that clause 7 stand as printed.

Clause passed.

The Hon. M. PARNELL: My second amendment, No. 8 standing in my name, is to delete the whole of the current section 8 of the act. This section provides that a radiation licence must be granted and it also limits the ability of regulatory authorities to impose tougher conditions. I just remind members that when it comes to health conditions and environmental conditions, history shows that they generally are toughened over time. One of the greatest faults in this legislation is that we are locking in for a very long time current understanding, current thinking and current standards.

The ACTING CHAIR (Hon. Carmel Zollo): Hon. Mr Parnell, please wait one moment while we take some advice.

The Hon. M. PARNELL: I think I am amendment No. 8, which is a new clause in the bill to amend a section of the act. My amendment includes a new clause 7 and my new clause 7 amends section 8.

The CHAIR: Because clause 7 is staying, you will not be able to proceed with the next amendment.

The Hon. M. PARNELL: Because it is already passed? Okay, provided, Mr Chairman, the record shows my attempt to delete section 8. If I cannot technically move the amendment then we will move on.

The CHAIR: I am sure that everything you said will be recorded with due diligence.

Clause 8.

The Hon. M. PARNELL: I want to delete this clause, and I want to speak to it, as well. This is a most remarkable clause that deals with a most remarkable section of the current act. Section 9, which relates to the application of the Aboriginal Heritage Act to the Stuart Shelf and Olympic Dam areas. My main difficulty with this provision is that it imposes an outdated set of legal privileges to the company over Aboriginal heritage legislation. The reason I say 'remarkable' is that the regime here is that an old act (the old Aboriginal Heritage Act 1979) is the reference point, rather than the Aboriginal Heritage Act 1988, in the defined Stuart Shelf area and in the Olympic Dam area, which includes the special mining lease. I will go into some detail shortly as to why that is a remarkable legislative provision.

The first question I have relates to Stuart Shelf. When you look at the Stuart Shelf area map (map 2 on page 171 of the bill), and you also look at the description of the Stuart Shelf area (page 152 of the bill), we can see—but not that clearly—that it is a large part of South Australia. My understanding is that it was the original exploration area of interest to the original Roxby proponents. My question is: how big an area is that?

The Hon. G.E. GAGO: We do not know the—

The Hon. M. PARNELL: Well, I am guessing thousands of square kilometres, but if the minister can find out with any more certainty than that I would appreciate that.

The Hon. G.E. GAGO: We will do what we can.

The Hon. M. PARNELL: Thank you. As I understand it, the 1979 Aboriginal Heritage Act was passed by the parliament, but it was not proclaimed and was ultimately repealed, with the exception that it still applies in the case of the indenture in relation to these defined geographic areas I have been talking about; we do not know their size, but we know they are massive.

When you go to the South Australian legislation website and you click on the link for acts of parliament, you do not even find the Aboriginal Heritage Act 1979; in fact, you have to click on the secret tab for ceased acts and acts of limited application. When you do that, you come up with the heading, 'Aboriginal Heritage Act 1979 (ceased)'. The notation says that the responsible minister is the Minister for Aboriginal Affairs and Reconciliation, and it states:

This Act has never been brought into operation but has not been expressly repealed. Section 9 of the Roxby Downs (Indenture Ratification) Act 1982 applies this Act to certain operations. Apart from that, the Act has been effectively impliedly repealed by the Aboriginal Heritage Act 1988 and is, consequently, treated as a historical version.

My question of the minister (and I think it is the obvious question) is: why on earth is the Aboriginal heritage regime referred to in this legislation, a regime that was never passed into general South Australian law and has since been repealed, still the standard for this area and for this project?

The Hon. G.E. GAGO: I have been advised that that is what the agreement was at the time and that BHP currently are only willing to consider the continuation of the current arrangements.

The Hon. M. PARNELL: I thank the minister for her answer, but what a remarkable answer. A company has said to the people of South Australia, 'We don't like your Aboriginal heritage laws. The only laws that we are prepared to countenance even partially complying with are laws that have never been proclaimed and have never been applied anywhere else in the state of South Australia, and yet they applied under the 1982 indenture act.'

The follow-on question has to be that, okay, even if you accept—which I do not—that that was an appropriate thing to do in 1982, to apply an act that had never ever been proclaimed, why on earth did the government not take the opportunity in relation to the renegotiation of this indenture to at least insist that the current Aboriginal Heritage Act be the basis for the dealings between this company and Aboriginal people in South Australia, especially given that we are talking about a much bigger area, a new project and a new open-cut mine? Surely this was the opportunity to say to BHP Billiton, 'Sorry, but we are not going to give you the benefit of the 1979 act, you have to comply with the law of South Australia.' Why was that opportunity not taken?

The Hon. G.E. GAGO: I have been advised that BHP insisted that the current arrangements continue and they were not prepared to consider changes to that.

The Hon. M. PARNELL: I understand there have been negotiations in relation to an Indigenous land use agreement and other negotiations, but what negotiations did the government undertake with, for example, the Aboriginal Legal Rights Movement or other Aboriginal groups in relation to whether this old act should continue to apply or whether the government should insist on the more modern act applying? What consultation was there?

The Hon. G.E. GAGO: I have been advised that BHP were satisfied with the current arrangements and insisted on the continuation of these arrangements, and the government did not consult further than that.

The Hon. M. PARNELL: To take a slightly different tack, is the minister able to identify the key differences between the 1979 act and the 1988 act that made the older act so much more attractive to BHP Billiton in relation to Aboriginal heritage?

The Hon. G.E. GAGO: I have been advised that the 1979 act does not have a mandatory consultation provision equivalent to the 1988 act for determining sites and/or authorising damage, disturbance or interference. However, contemporary administrative law principles, particularly in relation to procedural fairness, necessitate the same or similar consultation.

The Hon. M. PARNELL: It seems that there is a lot less consultation involved. It just seems remarkable that the minister has talked about this good corporate citizen and hoping that their goodness will continue into the future, yet when it comes to being obliged to consult with Aboriginal communities they opt for the lowest standard that they can get.

I refer members to the select committee report of the other place, and that report did not mention Aboriginal heritage issues but it did refer to the indigenous land use agreement (ILUA) issues. They did that at page 8 of their report. My question of the government is: in relation to the negotiations for that agreement, is the government obliged by the indenture to effectively take the side of the company in those negotiations? I refer to indenture clause 24A(5). Does that effectively put the government on the side of the company to use its reasonable endeavours to deliver the company's interests?

The Hon. G.E. GAGO: No, the advice is that we are there to facilitate.

The Hon. M. PARNELL: I think it is more than that, minister, because the obligation is to facilitate registration of an indigenous land use agreement that 'is not inconsistent with the terms of the indenture'. So, by definition, if Aboriginal people want something that is inconsistent with the indenture, the government is obliged to weigh in on the side of the company. Isn't that correct?

The Hon. G.E. GAGO: I have been advised that if the ILUA is consistent with the terms of the indenture, then the government is required is to facilitate. If the ILUA is inconsistent, then we are not required to facilitate.

The Hon. M. PARNELL: It was not my interpretation, but I thank the minister for her answer. The regime for Aboriginal heritage protection, as we have been saying, is clearly that there are two separate regimes. We have the 1979 regime, which applies in this area, and we have the 1988 regime, which applies in the rest of the state. It would seem to me that that has an impact on Aboriginal traditional owners and native title claimants, many of whose traditional lands would be included both inside and outside the relevant area, in which case they need to work with and understand two pieces of legislation with differing standards. Is there any consideration or compensation? How does the government assist those groups with coming to grips with their responsibilities under separate pieces of legislation? Does the government provide free legal advice to them? How does the government assist them coming to grips with both these regimes?

The Hon. G.E. GAGO: I am advised that BHP provides financial assistance and independent legal advice to claimants.

The Hon. M. PARNELL: One other aspect that goes to the rights of Aboriginal people and to native title in particular is this idea that the company is now entitled to apply for freehold over parts of this land. Can the minister explain why that was deemed necessary and why the other long-term security arrangements built into the bill and the indenture are not enough?

The Hon. G.E. GAGO: I am advised they are required for the long-term security of a multi-million dollar project.

The Hon. M. PARNELL: Clearly, the grant of freehold title will extinguish native title. How will that process be handled and what is the situation if traditional owners do not want the company to have freehold?

The Hon. G.E. GAGO: I am advised that we cannot grant freehold until the native title agreement is in place.

The Hon. M. PARNELL: The proposal in this bill to grant freehold title over the special mining lease was not a part of the environmental impact statement. I remind members that whilst we use the shorthand of environmental impact statement, under the Development Act it is effectively environmental, social and economic impact, not just environmental. So, it was not part of the EIS, it was not in any of the public consultation documents and it was not addressed in the South Australian government's own assessment report. The first that I heard of it, and I think the first that most people heard of it, was when it was announced on 12 October 2011 after the agreement between the government and BHP. My question of the minister is: was this an issue that was always on the agenda, and, if so, why was it not part of the public consultation?

The Hon. G.E. GAGO: I have been advised that this aspect was agreed to quite late in the negotiations.

The Hon. M. PARNELL: In relation to the potential freeholding of this land, what charge, if any, will the government apply to BHP Billiton to receive this freehold title for over 500 square kilometres of crown land? In particular, will any charge be levied in relation to the land itself or the administration of the issuing of a title or any other aspect of the proposed freeholding?

The Hon. G.E. GAGO: I have been advised that they will be required to pay the normal Mining Act rate rental for the SML, which I am advised is $2.5 million per annum.

The Hon. M. PARNELL: So that I understand the minister's answer, she said they would be required to pay the normal Mining Act rental of $2.5 million a year: does that include once they are freehold? Why are they renting it back if it is freehold? The minister is saying that, whilst they may own the land, they will still be subject to the normal mining lease fee. That is not quite the question I asked. The question is: in relation to the actual transfer, will they be obliged to pay any capital sum for the land itself? Will they be obliged to pay any of the administration costs of turning the land from presumably pastoral lease, unallotted crown land or whatever it is currently into a freehold title?

The Hon. G.E. GAGO: I am advised no.

The Hon. M. PARNELL: It is nice work if you can get it, several hundred square kilometres of South Australia for free, which leads me to my next question: is the government contemplating this as a technique to attract other mining companies to South Australia? Have any other mining companies asked for freehold land and would the government consider giving freehold land to mining companies if they want it?

The Hon. G.E. GAGO: I think we have offered a lot of latitude to questions that do not necessarily apply to the indenture but which might have some remote relevance. This line of questioning is simply not relevant to the indenture bill before us.

The CHAIR: There is an amendment on the table. Have you moved that yet?

The Hon. M. PARNELL: No, I have a couple more questions before I get on to that. The issue of freeholding is fundamental to the indenture—it is in the indenture. I have a couple more questions on it and then we will proceed if that is the committee's will. Clause 24 of the indenture sets out that the freehold land reverts back to the state at the expiry period of the special mining lease. My question of the minister is: what responsibilities are then effectively avoided on BHP's part and what responsibilities then become the responsibility of the state once that reversion of freehold has occurred?

The Hon. G.E. GAGO: I have been advised that BHP Billiton will be required to complete their rehabilitation obligations.

The Hon. M. PARNELL: Once they have completed their rehabilitation obligations—and we know from mining operations elsewhere that even once a mine tailings facility has been capped that the actions of wind and rain over a period of years can expose the ore body—what maintenance obligations then rest with the company, or are all those future obligations, which could be centuries or longer, left to the state? As a supplementary question: is there any potential in this indenture for rehabilitation bonds, if you like, to be maintained for a period longer than the currency of the special mining lease?

The Hon. G.E. GAGO: I have been advised that, under the rehabilitation obligations, the standard of rehabilitation is such that the protections are extremely long term and, in effect, indefinite. So, the risk of that resulting in any long-term risk or impost to the state, once it is reverted back to the state, is absolutely minimal I have been advised.

The Hon. M. PARNELL: So, when they are made to rehabilitate and, for example, to cap their radioactive tailings facility, the minister is guaranteeing that that will be safe, without the additional intervention of the state by additional works, for as long as it needs to be. Is that the minister's advice?

The Hon. G.E. GAGO: I have been advised that the company will have to demonstrate to the state that that is the case.

The Hon. M. PARNELL: I will disagree with the minister there, but I will not pursue it. We know that radioactive waste, and that is what we are talking about here, is dangerous for tens of thousands of years. I think we are kidding ourselves if we think that we can impose standards on a company that will keep us safe for that period of time, allow the company to walk away and not expect that, ultimately, it will be the state that picks up the tab.

Other members might have questions on this clause, otherwise I will move my amendment to delete this clause. So that we do not have the same discussion we had previously, I have a subsequent amendment, which is to delete the section of the act that relates to it. I imagine that, if I am unsuccessful in deleting the clause, probably I will not be able to move my amendment to delete the section. However, I want the record to show that was my intention.

The Hon. G.E. GAGO: The government opposes this amendment. The amendments proposed in the government's bill aim to remove the redundant provisions of the ratifying act relating to the Aboriginal Heritage Act 1979, section 9(2), (3) and (4) and new provisions, section 9(5) and (6), to bring up to date the circumstances whereby land considered part of a project may or may not be declared a protected area under section 21 of the Aboriginal Heritage Act 1979. These are not substantive amendments, rather they are consistent with the existing provisions of the ratifying act. Consequential amendments relate to amendment No. 10 to repeal section 9 of the ratifying act.

The Hon. D.W. RIDGWAY: As I explained earlier, the opposition will not be supporting the amendment.

Clause passed.

Clause 9.

The Hon. M. PARNELL: Clause 9 of the bill amends, by substitution, section 12 of the act, which relates to special provisions in relation to local government. So, the whole of the existing section 12 is replaced with a new section 12. The best shorthand way of describing this is that the people of Roxby Downs will have themselves a municipality to which some aspects of the Local Government Act will apply but, effectively, it will never lose the taint or the benefit, depending on how you look at, of being a company town. So of the two amendments that I have put forward, one relates to by-laws and the other relates to compulsory acquisition.

My first amendment (No. 11) basically brings the town of Roxby Downs into line with other municipalities in South Australia; namely, that they are able to introduce by-laws for the good governance of the people under their control. The provision in the bill that relates to by-laws states:

...a by-law that will affect the operation of the Company must not be made without the approval of the Minister and the Minister must, before approving a proposed by-law—

(i) inform the Company of the terms of the proposed by-law and allow it a reasonable opportunity to comment; and

(ii) consider any comments made by the Company.

My question is: why does the company have a special role in relation to by-laws that is normally reserved exclusively for the parliament? Secondly, what other company in South Australia has the same benefit of being directly consulted in relation to municipal by-laws before they come into operation?

The Hon. G.E. GAGO: I have been advised that, essentially, the town is a company town. There is a current provision in the act and it is, therefore, reasonable that the company should be consulted and, to the best of our knowledge, this is a fairly unique circumstance.

The Hon. M. PARNELL: The minister said that it is fairly unique by which I take it she means it does not apply anywhere else. Leigh Creek is a company town and, while you might say Whyalla is no longer a company town, the steelworks is still a dominant industry. Is there any other company in South Australia that gets this special access to by-laws before they come into operation?

The Hon. G.E. GAGO: The examples that the honourable member gives are nowhere near the scope of this. This is a unique circumstance. I guess the simple answer to the question is no, to the best of my knowledge, this is the only set of circumstances that exist in this way.

The Hon. M. PARNELL: I think I can probably move 11 and 12 together because they relate to the same clause so I might speak to my amendment No. 12, as well. This amendment deletes the following paragraph, which states:

...compulsory acquisition of land may not be exercised contrary to the provisions of clause 30 of the Indenture.

When you look at clause 30 of the indenture that, in fact, gives the company considerably more rights than people would normally have when they are faced with a compulsory acquisition. My question is: why is it that it is good enough for everyone else in this state to go through the compulsory acquisition process—including its appeal rights I should say; the right to challenge the legitimacy of the acquisition, the right to challenge the compensation to be payable—but why are those provisions not good enough for BHP Billiton when it comes to potential compulsory acquisition at Roxby Downs?

The Hon. G.E. GAGO: I have been advised, and I have put on the record previously, that these arrangements are already in the existing indenture and BHP indicated that it wanted those arrangements to continue.

The Hon. M. PARNELL: I simply make the point before we resolve these amendments that one of the most disappointing aspects of this whole exercise is that here we had the opportunity, here we had the ability to leverage some changes, to introduce some fairness, to try to bring the operations here back within the fold of the statute book of South Australia, and yet that opportunity has been missed because all the great negotiating that the joint venturers did back in the 1980s has been continued. I think that is disappointing, but for now I move:

Page 9—

Lines 4 to 10—Delete paragraph (e)

Lines 11 to 13—Delete paragraph (f)

I urge all honourable members to support these amendments.

The Hon. G.E. GAGO: The government opposes these amendments. They would result in the removal of amendments relating to section 12 of the ratifying act regarding local government arrangements, being that council by-laws that would affect BHPB's operations require the approval of the indenture minister after consulting with BHPB. This provision is in the current ratifying act.

The government's proposed amendment simply modifies section 12 to remove the references to joint venturers and replace them with the company, as BHPB is now the ultimate holding company. The policy intent in section 12 is to ensure that BHPB has the opportunity to comment on a by-law that may affect its operations. Section 12 does not give BHPB the right to veto such a by-law being made.

The second amendment proposes to remove the amendments relating to section 12. This provision has been part of the ratifying act since 1982. It does mean the municipality cannot compulsorily acquire land in general, rather that it must not be land that BHPB either reasonably requires or uses for its operations or a transaction that would hinder BHPB's operations. It must be remembered that the overriding purpose of the ratifying act in the indenture is to facilitate the current and future operations (which are significant) of Olympic Dam and the associated infrastructure, and this existing provision is entirely consistent with this purpose.

Amendments negatived; clause passed.

Clause 10.

The Hon. M. PARNELL: There are a number of amendments that relate to clause 10, which effectively adds some nine brand-new sections to the indenture act, and these are matters that were not there before. They are new issues. It inserts new sections 13 through to new section 23. I do have some questions in relation to a number of these new sections and some amendments as well. I will start with new section 13—Unlawful abstraction, removal or diversion of water. It provides:

A person must not, without the authority of the Company—

(a) abstract or divert water from any Desal Infrastructure; or

(b) take or use any water belonging to the Company or supplied by the Company for the use of any consumer.

Maximum penalty: $10,000 or imprisonment for 2 years.

My first question of the minister is: what is wrong with the existing laws of South Australia that relate to theft or interference with property in relation to BHP's ownership of this water? Why are new provisions required, rather than simply use the existing criminal law, especially in relation to theft?

The Hon. G.E. GAGO: I have been advised that we believe that this is more effective protection for what is a major piece of infrastructure. It mirrors what SA Water does with its infrastructure, for instance, and is consistent with what the government does with its desal plant and the way that is regulated. As I said, it is a critical piece of infrastructure, and we believe that this provides more effective protection.

The Hon. M. PARNELL: Just so I understand the minister's answer in relation to more effective protection: is the minister saying that if someone was to do these things (abstract or divert water, take or use water, etc.) that they would not be able to be pushed under South Australian law? Is there some loophole, for example, that says that the company does not own the water and therefore the laws of theft do not apply? Is it necessary to make criminal something that would not otherwise be?

The Hon. G.E. GAGO: It is a provision that is consistent with the way that we regulate other major pieces of infrastructure.

The Hon. M. PARNELL: Just in that theme, are the penalties here (the $10,000 fine, the imprisonment for two years) equivalent to theft of water from other types of water infrastructure? For example, if someone was to steal water from an SA Water pipe without paying for it, are the penalties the same?

The Hon. G.E. GAGO: What was the question?

The Hon. M. PARNELL: You are saying that this is a more effective way of dealing with it. What I am trying to work out is whether these penalties are higher or lower than if, for example, you stole water from an SA Water pipeline going past.

The Hon. G.E. GAGO: I have been advised that the penalties are consistent with the Water Industry Bill.

The Hon. M. PARNELL: What I am interpreting the minister as saying is that these penalties are much higher than normal, but they are consistent with legislation that we are soon to debate; I think that was her answer.

The Hon. D.W. Ridgway: Probably next year.

The Hon. M. PARNELL: The Hon. David Ridgeway interjects, 'Next year.' I am expecting to debate the Water Industry Bill a bit later on tonight, in the early hours of the morning perhaps, if we push on with our work. Because I am going to do these as a job lot, I will just flag now that I am not satisfied with the minister's answer, and that I do not believe that this special provision is necessary and will be moving to delete it.

The next new section (section 14) on page 10 is a most curious provision, and it provides for very substantial penalties for people interfering in a criminal sense with desalination infrastructure. As with the theft of water in the previous section, my question of the minister is the same here: are any of the criminal penalties created by this section not covered by existing laws in relation to criminal damage (for example, vandalism) or are any of those offences new?

The Hon. G.E. GAGO: I have been advised that it is consistent with the Water Industry Bill.

The Hon. M. PARNELL: I do not have the advantage of having the Water Industry Bill with me, but the bill before us today has a maximum penalty of $20,000, for example, and imprisonment for five years for hanging a banner off the desalination plant. You might think that that seems a bit extreme. New section 14 provides:

(1) A person must not, without the authority of the Company—

(a) attach any equipment or thing...to any Desal Infrastructure...

The maximum penalty is $20,000 or imprisonment for five years. Is the minister telling me that a similar provision is in the Water Industry Bill that we are about to debate?

The Hon. G.E. GAGO: I am advised that it is modelled on the Water Industry Bill.

The Hon. M. PARNELL: I thank the minister for her answer, which clearly readers of Hansard will interpret as saying, 'There's no way that there is a $20,000 and five-year gaol penalty in the Water Industry Bill for hanging banners off desalination infrastructure.' The minister says it is modelled on it. The point—and I think all members have probably got it by now—is that all the offences created by section 14 are already criminal offences under the law of South Australia, especially in relation to criminal damage. I think that it is unnecessary, and I foreshadow that one of the amendments I will be moving en bloc will be to delete new section 14.

I now move on to new section 15—Access to desalination plant land. It is only a couple of sentences, so I will put it on the record. It provides:

A person who enters onto, or remains on, land—

(a) owned or occupied by the Company, or that is under the care, control and management of the Company; and

(b) which constitutes the site (or part of any site) of any Desal Infrastructure...without being authorised to do so by the Company, is guilty of an offence.

Maximum penalty: $2 500.

This, effectively, is a trespass clause. To understand the meaning of 'desal infrastructure' so you understand the scope of the land which this trespass provision will affect; you have to go to clause 13 of the indenture, subclause (17A)(a) of the indenture. What that tells you is that you have the plant itself at Point Lowly. You also have the pipelines all the way from upper Spencer Gulf to the mine site, you have the various pumping stations that will exist along the way, you have the coastal inlet and outlet pipes, and everything else to deal with the desalination infrastructure. A person who enters onto any of this land without authority is guilty of an offence and there is a $2,500 fine.

My first question of the minister is: how much land are we actually talking about here? If she has the figure in hectares, that would be good, but I presume we are talking about the area of the desal plant. I imagine it will have a fence around it on land, but we are also talking about considerable land that is covered by sea water in upper Spencer Gulf, and we are talking about considerable land where there will be a pipeline easement at least for starters. How much land are we talking about is subject to these trespass laws?

The Hon. G.E. GAGO: We will have to take that question on notice.

The Hon. M. PARNELL: I will look forward to the minister's response. The minister has taken a number of questions on notice and what I have neglected to ask her each time is when we might get the answers. I am presuming perhaps by Tuesday morning; that would suit me.

The Hon. G.E. GAGO: We will get you those answers as soon as we possibly can.

The Hon. M. PARNELL: Well, I am here all night. I have nothing else that is occupying my mind other than this project—the single biggest industrial project in the state's history, the biggest hole in the ground ever dug on the face of the planet.

Getting back to this new section 15, my question is: will all of the areas that are subject to these new trespass laws be fenced? If they are not capable of being fenced, will they be signposted? How will people know whether they are infringing section 15?

The Hon. G.E. GAGO: I have been advised that the area covered by the desal plant will be 42 hectares. So, there is an answer to one of your questions. It will be fenced. Obviously, this is a major piece of infrastructure and public access is not wanted. It is a major piece of infrastructure and if it was damaged or sabotaged in anyway it would be critical to the operations of Olympic Dam. In terms of the access corridor, the pipeline will be buried, it will not be fenced and public access is not an issue. There will be a number of pumping stations along the way which will be fenced but they only cover small areas.

The Hon. M. PARNELL: I thank the minister for her answers. In relation to the pipeline corridor, which presumably will be tens of metres wide (maybe 100 metres wide, the minister can tell us if she knows) and will go on for many kilometres, is the minister giving the people of South Australia, through Hansard, an assurance that they will not be prosecuted for trespass under this provision if, for example, they walked or even drove along the roadway that I presume would be either above or alongside the buried pipeline?

The Hon. G.E. GAGO: I have already answered that question. I have already put it on the public record that it will be buried, that public access is not an issue and, therefore, they are not going to be prosecuted.

The Hon. M. PARNELL: Let us look at the other part of the desalination infrastructure that involves a very long pipe going out into the sea. There will be a pipe for bringing water in to the desalination plant, there will be a pipe taking the concentrated brine out and there will be various diffusers associated with that. Given the minister's answer in relation to the buried land pipeline, is the minister's answer the same in relation to the marine infrastructure? To put it clearly, is anyone going to be prevented from boating, swimming, snorkelling, fishing or any marine activities over or within the corridor that relates to the desalination infrastructure in the marine environment? Will the minister guarantee that access to all of that marine area will be unimpeded and not subject to these trespass laws?

The Hon. G.E. GAGO: I have been advised that in relation to large ships there are no restrictions, except in relation to anchorage. The charts will show where large ships would be advised not to anchor so that there is no damage to the infrastructure. In terms of small boats and fishing, I am advised there are no restrictions, and in terms of diving I have been informed that there are no restrictions.

The Hon. M. PARNELL: I thank the minister for her answer, and I guess that it would be overly enthusiastic of me to assume that that was support for my amendment No.16, which was to include a new section 15A—Access to coastal waters, and states:

Nothing in this Act or the Indenture allows the Company to unreasonably restrict public access to waters that are located over or in the vicinity of any Desal Infrastructure that is buried in the sea floor.

So, effectively, what the minister has said is precisely what my proposed new section 15A says. I will not say any more about that, other than that I am glad the minister agrees and that very soon she will be able to show, by voting in favour of my amendment No.16, that I was always on the money.

My next two amendments, Nos 17 and 18, I do not propose to speak on at any length. They are consequential, one to a matter I have already dealt with in relation to the Development Act and the other to a matter I will be having a bit more to say about when we get into the clause by clause examination of the indenture.

New section 19 allows for the minister to appoint authorised officers. The job of authorised officers will in fact be very similar to authorised officers under the Environment Protection Act. Given that the minister in another place, and I think the Premier as well, have made a point in the media about how independent the EPA is going to be and that the EPA will have a great level of control, if we put those two things together, it makes sense, I believe, for the authorised officers to be appointed by the EPA rather than by what is effectively the mining minister.

I have been taking it for granted that the minister responsible for this bill currently is the mining minister and I am presuming will be after the act is proclaimed. Can the minister, first of all, clarify that it is the mining minister who is being referred to in new section 19?

The Hon. G.E. Gago: Yes.

The Hon. M. PARNELL: Yes, thank you. Secondly, can the minister confirm whether existing authorised officers under the Environment Protection Act will be made authorised officers for the purposes of this act?

The Hon. G.E. GAGO: I am advised that they do not need to be because they already have powers under their own act.

The Hon. M. PARNELL: The minister's answer is that authorised officers under the Environment Protection Act already have power. If that is the case, why is an additional category of authorised officer under this bill needed? Are they going to be different people with different powers? What is the purpose of having a second tranche of authorised officers if the existing ones already have all the powers?

The Hon. G.E. GAGO: I am advised that this provision provides for the inclusion of mining inspectors rather than the EPA.

The Hon. M. PARNELL: I thank the minister for her answer. Can the minister assure us that the authorised officers who relate to environmental performance will be EPA officers and that authorised officers for the purposes of mining will, in fact, be confined to matters that relate to mining and not environmental matters? Can the minister confirm that there will be that demarcation between the two types of authorised officers? Can the minister also confirm who the authorised officers under this section are accountable to? I presume that it is the mining minister but, if I am incorrect, the minister can let me know.

The Hon. G.E. GAGO: I am advised that that is correct.

The Hon. M. PARNELL: That is the second part of my question. Can I get the minister to confirm the first part; that is, that the mining authorised officers will be doing only mining work and that there will not be anyone appointed under section 19 whose task is to enforce environmental standards who is either not already or also appointed under the Environment Protection Act?

The Hon. G.E. GAGO: I am advised that any environmental authorisation made by the EPA will be inspected by the EPA.

The Hon. M. PARNELL: I understand the minister's answer, but it is not just environmental authorisations issued by the EPA; it is also the environmental management program under the indenture. It needs to be clear to me that it will be Environment Protection Authority officers answerable to the EPA who will be responsible for environmental performance and assessment.

The Hon. G.E. GAGO: I have been advised that if it is outside a strict environmental authority it could, in fact, be looked at by a mining compliance officer or an EPA officer.

The Hon. M. PARNELL: I will leave that line of questioning there, and I thank the minister for her answer. I have three amendments which, in spite of those answers, I am still minded to move—that is, amendments Nos 19, 20 and 21—which effectively make the Environment Protection Authority responsible for authorising officers under this act. However, I note the fact that authorised officers might not be appointed under the mining legislation, but those officers would still have authority under other parts of the legislation without the need for them to be identified in new section 19.

I now move to my amendment No. 22. This amendment proposes a new clause 21A, which clause is designed to give the Environment, Resources and Development Court the power to resolve disputes in relation to the indenture, rather than the arbitration provisions of the indenture. When we get to the indenture, and to my amendment that seeks to amend the provisions of the indenture, I propose testing the will of the committee to remove clause 49. Clause 49 provides that all dispute resolution is to be conducted by private arbitrators, rather than by courts and, in particular, the Environment, Resources and Development Court. However, I will leave the discussion of that item, the appropriate body for arbitrating disputes, until we get to that clause of the indenture.

Amendment No. 22 says that it is the Environment, Resources and Development Court that will have the jurisdiction to hear and determine any appeal that arises under the provisions of this indenture. I think it is appropriate that, having some years ago set up a specialist court to deal not just with environmental matters but also mining matters, to give that public body the authority to deal with disputes. I note also that when it comes to a public court we do have access to information. You can obtain transcripts of evidence. There is a range of things you can do through the public courts that you cannot do through private arbitration. If we are serious about openness and transparency, we need to make sure that a public court is responsible for determining disputes.

I have reached the end of my amendments to clause 10, that is, amendments Nos 13 to 22. I will move them en bloc now that I have spoken to them all. I move:

Page 9, lines 36 to 41—Delete section 13

Page 10—

Lines 1 to 32—Delete section 14

Lines 33 to 38, page 11, lines 1 to 3—Delete section 15

After line 3—Insert:

15A—Access to coastal waters

Nothing in this Act or the Indenture allows the Company to unreasonably restrict public access to waters that are located over or in the vicinity of any Desal Infrastructure that is buried in the sea floor.

Page 11—

Line 16—Delete 'or 7A'

Lines 23 to 27—Delete subsection (3)

Line 30—Delete 'Minister' and substitute 'Environment Protection Authority'

Line 33—Delete 'Minister' and substitute 'Environment Protection Authority'

Line 34—Delete 'Minister' and substitute 'Environment Protection Authority'

Page 12, after line 25—Insert:

21A—Jurisdiction of ERD Court

(1) The Environment, Resources and Development Court will have jurisdiction—

(a) to hear and determine any appeal that arises under the provisions of the Indenture; and

(b) to act in any arbitration under clause 49 of the Indenture.

(2) Any arbitration proceedings commenced before the Court under section 49 of the Indenture must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993.

(3) A decision of the Court in any arbitration proceedings will take effect as a judgement of the Court (and may be subject to appeal under Part 7 of the Environment, Resources and Development Court Act 1993).

I am interested to hear if there is any further comment from the government or the opposition as to why they cannot see their way clear to supporting these.

The Hon. D.W. RIDGWAY: As I indicated before, the opposition has had extensive briefings. We were fortunate to have an advance opportunity to discuss all the components of the indenture with both the government and people from BHP, and we indicated that we would not be amending the indenture or this legislation at all. So, with those few words, I indicate our former position: we will not be supporting the amendments.

The Hon. G.E. GAGO: The government opposes these amendments. The Hon. Mark Parnell's amendments would result in the removal of amendments to protect BHPB's desal plant at Port Bonython from unauthorised obstruction, diversion and taking and using of water produced from the plant. While BHP's private infrastructure may not perform a public function, it is conceivable that at some point in the future the desal plant may be used to source water for a public purpose.

In addition, the desal plant is particularly important for BHPB to support and expand its processing capacity and operation at Olympic Dam and the related economic activity in the state. These amendments should be considered as if the desal plant were performing a public function, a public identity, and the penalty included in the government's amendment is consistent with similar penalties under the Water Works Act 1932 that apply to SA Water's desal plant.

Amendments negatived.

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

Page 12, after line 36—Insert:

24—Regional infrastructure and investment fund

(1) The Regional Infrastructure and Investment Fund is established.

(2) The Fund must be kept as directed by the Treasurer.

(3) The Fund consists of—

(a) 25% of all royalties received by the State from the Company under the Indenture; and

(b) any money provided by the Parliament for the purposes of the Fund; and

(c) any income arising from investment of the Fund under subsection (4); and

(d) any additional money that is to be paid into the Fund under a determination of the Treasurer; and

(e) any other money that is required or authorised by another law to be paid into the Fund.

(4) The Fund may be invested as approved by the Treasurer.

(5) The Minister for Regional Development may apply the Fund—

(a) for such purposes directly related to regional development or regional investment as may be determined by that Minister (including by payment to any person or organisation (whether or not an agency or instrumentality of the Crown) for those purposes); or

(b) in making any other payment required by another law to be made from the Fund; or

(c) in payment of the expenses of administering the Fund.

(6) The administrative unit of the Public Service that is, under the Minister for Regional Development, responsible for regional development within the State must, on or before 30 September in each year, present a report to that Minister on the operation of the Fund during the previous financial year.

(7) A report under subsection (6) may be incorporated into the annual report of the relevant administrative unit.

(8) The Minister for Regional Development must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after the report is received by that Minister.

(9) The Minister for Regional Development must, in connection with the operation of this section, maintain on a website—

(a) a statement of income and expenditure for the Fund (listing each allocation of money from the Fund separately and in a manner that identifies the purpose or purposes for which each allocation is to be used); and

(b) information about how applications may be made for grants or other payments from the Fund.

(10) For the purposes of this section, regional development or regional investment must relate to development or activities undertaken outside Metropolitan Adelaide.

(11) In this section—

Metropolitan Adelaide means Metropolitan Adelaide as defined in the Development Act 1993;

Minister for Regional Development means the Minister who has portfolio responsibility for regional development within the State.

In the interests of moving along with this bill I will be brief as I have already spoken to the key points of this amendment. It is a simple amendment, but it is a very important one, and it is about equity. It is known as Royalties for Regions. I would prefer it to be called Equity for Regions. There is no doubt, whichever way you look at it, that rural and regional South Australia have missed out to a huge extent over the last nine years and several months.

Whilst we as a party strongly support good initiatives for the city of Adelaide and the metropolitan area, Family First does not apologise for also having a focus on South Australia as a whole, including rural and regional South Australia. The fact is that there are desperate needs in the country. These wealth opportunities, such as the one we are debating now with BHP Billiton, have come up not from a mine in Adelaide but from a mine at Roxby Downs in the Far North, in a regional part of South Australia.

This amendment is not a money amendment per se, that is, this amendment does not lock the government into 25 per cent of royalties for regions from all mining ventures. It simply says that, with respect to Roxby Downs, 25 per cent of the royalties will go into the regions from the Roxby Downs indenture ratification agreement and the subsequent royalties that will be delivered from that entire mining site. It does not ensure that this government or any future government has to give royalties to the regions from all other mining projects.

I think I have said enough. I would be keen to hear comment from the government, the opposition and the crossbenches, and then I would be happy to briefly sum up and put the view and consider the amendment from there.

The Hon. G.E. GAGO: The government opposes this amendment. There have been a number of comments in recent media about a royalties for regions scheme, with funds being quarantined for regional infrastructure needs, similar to the Western Australian model. The amendment from the Hon. Robert Brokenshire follows this theme. It must be pointed out that the resources and energy sectors in Western Australia, and also Queensland for that matter, are well established, generating billions of dollars in revenue and royalties relevant to that revenue.

In the 2009-10 financial year the state government received approximately $125 million in mining royalties in total. Although this figure is projected to increase significantly due to the proposed expansion over the coming years, the government's investment in rural regions vastly exceeds the entire mineral royalty received at present.

As has been discussed elsewhere, the effect of horizontal fiscal equalisation reduces the effective free cash from the royalties that the state has at its disposal. The state government is committed to regional communities, and this is highlighted in the 2011-12 state budget through significant investment in key service areas and infrastructure, with $276.3 million allocated to regional South Australia. The mineral wealth of South Australia, and specifically the royalties derived from that wealth, is to provide for all South Australians.

A royalty investment fund, while an appealing concept, is not suitable for South Australia at this stage. However, the commitment to regional South Australia should be in no doubt, as is evidenced by the creation of a new PIRSA where the 'R' stands for regions. I welcome the intent behind the amendment, but the government at this point cannot support this amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition will not be supporting the Hon. Robert Brokenshire's amendment, but I am sure he would recall that during the last election the Liberal Party went to the people with a policy of a regional development and infrastructure fund, with some $40 million in that pledge to that fund.

The Hon. J.S.L. Dawkins: Forty-three.

The Hon. D.W. RIDGWAY: The Hon. John Dawkins interjects—$43 million. Effectively, that was, if you like, a royalties for regions program, but that was a policy we took to the last election. We think that is a better way to do it, rather than having a set amount of money hypothecated off as the Hon. Robert Brokenshire is suggesting.

As the minister explained, the horizontal fiscal equalisation is not just as simple as saying, 'Well, we'll have a certain percentage of the royalties,' because of course there is the equalling effect it has between the states. I understand the Hon. Robert Brokenshire's intent—and I am sure he was delighted when he saw our election policy at the last election, and he knows—

The Hon. R.L. Brokenshire: I was happy then, but I'm sad now, I have to say.

The Hon. D.W. RIDGWAY: Well, I am sure he will be happy again when he sees our next suite of election promises and commitments for regional South Australia because he knows that the Liberal Party is the mainstream party that will support the regions and look after them.

The Hon. R.L. BROKENSHIRE: Just to conclude and respond, if I may, I am genuinely disappointed that neither of the major parties has seen fit to support this. Frankly, when it comes to horizontal fiscal equalisation and the rest of it, Western Australia has had to manage that, New South Wales has had to manage that, and Queensland has had to manage that.

We always know that, the way it is structured, when you get mining wealth from any state, it is part of the agreement between states and the commonwealth. We know that, but the bottom line is it is an issue for the government of the day to manage, just the same as they can find $540 million overnight when an AFL executive flies in and demands it, and just the same as they can find money (that I am pleased they found) for the Southern Expressway duplication when, on the eve of the election, their polling says that they need it.

To summarise, I am disappointed that the major parties have not seen fit to support this amendment. We are taking plenty out of the regions, yet we are giving little back. I will continue to push for equity for the regions, but I hear the call of numbers.

Amendment negatived; clause passed.

Progress reported; committee to sit again.

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