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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-29 Daily Xml
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DEVELOPMENT (PRIVATE CERTIFICATION) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 28 November 2012.)

New clause 8.

The Hon. M. PARNELL: I have moved my amendment, but I understand the minister has a further contribution, after which I will have another go, if I may.

The Hon. G.E. GAGO: I do have some further comments. The government has had the opportunity to further consider the Hon. Mr Parnell's amendment since the conclusion of the committee stage of this bill yesterday. I have also discussed with Mr Parnell options as to how these matters could be addressed as part of the regulations. I am advised that these discussions have been fruitful and have resulted in an agreement to make certain changes to the draft regulations that would enable the Hon. Mark Parnell to withdraw this amendment.

I will outline the substance of the proposed changes shortly for the chamber's benefit. Unfortunately, given the tight time frames, parliamentary counsel has not been able to prepare a further draft of the regulations prior to now, however, I am advised that this should be ready early next week, and the minister has asked me to give an undertaking to the chamber that, once available, this will be distributed to the Hon. Mark Parnell and other interested members for consultation.

I want to say from the outset that we appreciate the intent behind the Hon. Mark Parnell's amendment and we have entered into discussions with a willingness to address his concerns. The government's concerns have only been on advice that the amendment presented by the Hon. Mark Parnell would have some unintended consequences and therefore needs to be thought through further.

For example, I am advised that there are important issues regarding privacy that the amendment leaves unaddressed. Indeed, the Local Government Association's model policy on the interaction of the Development Act, the State Records Act and the freedom of information and federal copyright legislation issued in January 2012 makes it clear that councils, as the record keepers of development decisions, should have regard to both privacy and copyright matters prior to the release of any documents to members of the public, and I understand that this policy has been adopted by a number of councils.

The tenor of this policy document, which is available on the LGA's website, is a reminder that the release of any information provided as part of the statutory process must be carefully thought through in light of the variety of complex and, at times, competing public policy considerations, privacy, confidentiality, transparency, access to information and intellectual property rights.

In this context, it is also important for me to point out to the chamber that the effects of the Hon. Mark Parnell's amendment may not be precisely what he intended. In debate yesterday, the Hon. Mark Parnell stated the intent of his amendment is to ensure that private certifiers are subject to the same rules as councils in relation to record-keeping, and I understand from the discussions he has had with the minister's representative that a major concern is ensuring transparency of the assessment process in light of the expanded role that this bill will provide for private certification.

The government accepts the interest of the Hon. Mark Parnell and other members in attempting to address the issue of transparency in the administration of this regime in the spirit suggested by the amendment. We accept that the Hon. Mark Parnell, in this amendment, has attempted to improve overall transparency in administration while also streamlining the business obligations on certifiers and councils, a proposition that we as a government obviously support. The integrity of private certification is critical to ensuring it will be successful and accepted by the public and will achieve the economic benefits the government and industry believe it can deliver.

I will now outline, briefly, the government's proposed changes to the regulations which will better address these issues. I should also say that although a new version of the regulations has not been able to be drafted, parliamentary counsel have confirmed that the proposed changes would be within the regulation-making powers of the act. In brief, there are four current provisions of the regulations we propose to amend, in addition to the changes already circulated to members.

As a global comment, I should point out that the policy underpinnings of the current regulations differentiate between the public register councils are required to maintain and the records private certifiers must keep. The reason private certifiers are required to maintain records for a three year period is to facilitate auditing, while the public register is meant to provide an authoritative information source for the community regarding development activity occurring in their area, and to do so in a transparent manner. This also helps to ensure that access to information by the public is subject to appropriate privacy, copyright, freedom of information and related controls applying to the council as a public authority and instrumentality of the Crown.

Regulation 92 provides for the provision of certain information and documents by a private certifier to a council upon completion of an assessment process. The government proposes to amend this provision to require a private certifier, on forwarding a certificate to a council, to also provide a copy of all relevant documents relating to that certificate that the certifier would be required to keep and provide to an authorised officer under regulation 102.

In other words, the certifier must provide a copy of the file, with all of the relevant correspondence, to the council for their records. This will mean those records are able to be accessed by any interested member of the public at any stage in the future, consistent with the documents relating to development approvals considered by the council.

Regulation 98 provides for councils and private certifiers to maintain registers of applications they are currently dealing with or that have been finalised. A council must make such a register available for inspection by members of the public free of charge.

The government proposes to amendment regulation 98(1) to clarify that a register to be maintained by a council must include any notification provided to a council by a private certifier that a private certifier has received an application for assessment. In other words, council registers should always include details of applications received by the council or by private certifiers within the council's area that have been notified to the council.

This amendment will remove any ambiguity, which the Hon. Mark Parnell raised yesterday as a concern, as to whether an application being dealt with by a private certifier would appear on the public council register. It will ensure full transparency for members of the public.

In addition, the government is exploring a potential amendment to regulation 98(2) which would require a council to publish a register online in addition to being required to make it available at its offices for inspection. However, I should stress that we would first wish to consult with the Local Government Association on the costs relating to such a change. I note that some councils already go beyond the minimum statutory requirements and provide their registers online. So, there may be minimal costs associated with this change for many councils. While this amendment was not requested in discussions with the Hon. Mark Parnell, it seems to be an attractive change that will complement other changes we have agreed to.

Regulation 101 provides that a council must maintain certain documents relating to development approvals for building work, basically all of the documents that would be in the file for a particular application. This includes: drawings, plans, technical specifications, correspondence and the like.

Subregulation (4) allows a member of the public to inspect those records at a council office, but only if the council or the building owner consents. In other words, this right of inspection is discretionary. Moreover, the council may charge a fee for access. Subregulation (5) provides, in addition, that a council may refuse access if it considers the release of drawings would be unreasonable or jeopardise the security of a building; in other words, release of the plans would give away, for instance, confidential information that may be used for improper purposes.

The government proposes to amend regulation 101(4) so that rather than access to the records being discretionary, a member of the public will have a right to gain access to these documents, subject only to the current exclusion set out in existing subregulation (5) relating to the security of the building. In other words, councils would only be able to refuse access if there is a legitimate threat to the security of the building.

In proposing this change, I note with thanks the example cited by the Hon. Mark Parnell, based on his experience and discussion with constituents, of obstructive behaviour by some councils to the release of documents which has from time to time unfortunately occurred.

In addition, the government proposes to amend this regulation to ensure that a person should be able to inspect such documents at the council offices during normal business hours free of charge and take copies, subject to a reasonable fee fixed by the council, except where to do so would constitute a breach of copyright. This will be consistent with other provisions relating to inspection of the public register and also consistent with provisions relating to copyright in the Freedom of Information Act.

Regulation 102 provides for private certifiers to keep certain documents (basically, the file for each matter they consider, including drawings, plans, correspondence and the like) and provide them on request to an auditor. The government proposes to amend the regulation by also imposing a parallel obligation on the private certifier to provide copies of these documents on request to a council to which the certifier has given notification of an application they have received and are assessing.

This will mean that, if a member of the public sees that a matter is being considered by a private certifier by looking on the council's public register and the member of the public requests further documentary information about the matter before the certifier has completed their assessment, the council can access that information by issuing a request to the certifier. Once the certifier has completed the assessment, the whole file will be transferred to the council, so this request power will no longer be required. This approach addresses a critical aspect in the Hon. Mark Parnell's amendment, which would have provided for inspection of the records of private certifiers, and we think it will do it in a better way.

This is the substance of the additional changes that the minister has agreed to progress and, as I have already indicated, as soon as the regulations are drafted we will provide them for comment to interested members next week. We will also look to consult with the Local Government Association and a private certifier regarding these proposals prior to finalising them.

We believe that these changes will ensure that issues regarding privacy, confidentiality, transparency, access to information and copyright are all adequately addressed in a much clearer manner and will remove ambiguity about the administration of the current regulations. As a result of the foregoing points, the government will continue to oppose the Hon. Mark Parnell's amendment, but I gather and hope that the Hon. Mark Parnell may be prepared to consider withdrawing it in light of these sincere and genuine undertakings.

I would also like to provide additional information to the chamber following questions asked by the Hon. David Ridgway in committee yesterday. The Hon. Mr Ridgway asked at what level the department's auditor is employed and what qualification the auditor holds. I was uncertain yesterday, but I can now confirm my advice to the chamber that the position of the senior compliance auditor classification is at ASO6 level. The position description for the role requires 'a relevant tertiary qualification', together with:

...demonstrated experience in performing compliance or process audits in accordance with established practices, including sound knowledge of current auditing principles, standards and practices as promulgated by the relevant professional bodies.

The incumbent auditor is certified by, and is a member of, the Institute of Internal Auditors. I am advised that, should the department require to recruit an auditor at any future stage, similar criteria would be required as part of the recruitment process.

The CHAIR: The Hon. Mr Parnell, do you want to proceed with your matter, or are you seeking further clarification?

The Hon. M. PARNELL: No, thank you, Mr Chairman. I will just make a few remarks. First of all, I thank the minister for her lengthy and comprehensive contribution, which sets out the government's intentions in relation to this. I would also like to put on the record my thanks to the minister in another place for making his staff available to work through some of these issues. At the heart of them is the question of the transparency of the system, as the minister has pointed out, and my amendment has, in fact, triggered a number of improvements that I think, on reflection, everyone—certainly the government—appreciated needed to be addressed.

I note also that even one of the points that the minister made in relation to putting the public register online, whilst it was not a specific request of mine, I would absolutely endorse that approach—it makes sense. In fact, members might be aware that a planning website was established interstate, as I understand it, some time ago, called planningalerts.org.au. This website trawls through electronically the websites of local councils and uses a locating function (a GPS-type function) to allow people to type their home address, for example, into the search engine and the computer spits back at them all of the development applications that have been lodged within 5 kilometres of their house, regardless of which council it is in.

This program does not work that well in South Australia at present because not all the councils have their public registers online. However, certainly in some places, in New South Wales, Victoria and elsewhere, it is an excellent technique for people to get a feel for what is going on. I should point out that this does not give people appeal rights. It does not give them the ability to challenge these developments—that is a different legislative regime—but it does allow people to know what is going on in their neighbourhood and, if they are interested, they can pursue more information. I think these reforms are well worthwhile.

The other thing I would like to say in passing is that I have been working with one community group for some time—a group that goes by the name of Community Alliance; effectively a collective of all the little residents' associations and community groups around South Australia—that has been battling these access to information issues for some time. That group will be very pleased with the approach that the minister is now taking to clarify the rules in relation to the rights of citizens to access information about development that is being proposed in their area.

I look forward to the minister coming back with the expanded regulations and, on the basis of the undertakings that the minister has given, and in good faith, whilst I had moved my amendment yesterday, I am in your hands, Mr Chairman, as to whether there is a process for unmoving the amendment. I would rather not have it put to a vote and have to urge all members to vote against it. That would not seem to make a lot of sense.

The CHAIR: I think just to assist you, this is a lead-up that you will indicate very soon that you will be withdrawing your amendment.

The Hon. M. PARNELL: I am right at that point now, Mr Chairman. In light of the undertakings, I withdraw the amendment, but I do thank the opposition for having supported it yesterday because by their action they have facilitated a second look at these transparency provisions and I think we will get a much better system at the end of the day.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (15:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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