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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-17 Daily Xml
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STATUTES AMENDMENT AND REPEAL (BUDGET 2012) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 June 2012.)

The Hon. M. PARNELL (11:05): The Greens, in speaking to this bill today, want to highlight three of the areas of amendment that are included in this large grab bag of notionally budget related measures, many of which, as I will explain later, deserve, I think, to be the subject of stand-alone bills rather than being hidden within a statutes amendment and repeal budget bill.

The first issue is the question of costs that are payable to successful defendants in criminal trials. The second issue is the one that is commonly referred to as the biosecurity levy, and the third issue is in relation to land-use planning and control of land that is adjoining some of our highways and freeways.

In relation to the criminal law costs matter, members will recall that the provision in this bill is similar to that which we examined in the 2011 budget bill. The provision is that costs in criminal cases will not be awarded where that case is an indictable matter and where it is heard by election in the Magistrates Court, unless the court is satisfied that the party seeking costs can show that the other side has unreasonably obstructed the proceedings or if the proceedings were delayed through neglect or incompetence.

The amendment in this bill is to bring the practice of the Magistrates Court into line with the practice in superior courts, where costs are generally not awarded on indictable matters. This issue was controversial back in 2011 and it continues to be controversial. At its heart is the question of whether or not successful defendants in criminal matters ought to be compensated for having been put through a trial that ultimately resulted in their acquittal.

I have received an amount of correspondence on this, including from the Australian Lawyers Alliance. That organisation makes its opinion very clear with the words:

ALA is of the view that under no circumstances should this become part of the law of South Australia. As with the Common Law the ability to obtain a costs order is both compensatory and regulatory in nature. It leads to a form of discipline so the Prosecutions know that they can only bring matters where there is some reasonable prospect of success.

I think that within that statement is a matter of some controversy. I was pleased to receive a briefing from government officials yesterday, including a representative of SAPOL who assured me that the costs issue was not a part of any of the decision-making process that SAPOL goes through in deciding whether to bring a prosecution. According to the police, the only two criteria are whether there is a reasonable case, one that has some prospect of success, and whether it is in the public interest for the case to be brought. The police deny whether or not costs are available has any bearing on whether or not a case should proceed. That is in stark contrast to the view that many lawyers take, which is that, having the spectre, if you like, of a costs order hanging over you does add an extra discipline to the decision about whether or not to bring a case that might otherwise only have marginal prospects of success. That is one aspect of it.

The other aspect, and one that does concern me somewhat, is the idea that a person can be put to considerable expense in successfully defending criminal charges against them and then walk away from the court tens or even hundreds of thousands of dollars out of pocket with no chance of any compensation for those expenses. I am not convinced that it is a good enough argument to say that bringing the Magistrates Court costs rules in line with the superior courts is of itself sufficient reason for approving this new measure, because it begs the question about whether the approach in the superior courts is in fact the right approach to take as well; and I am not convinced that people having to fund their own successful defence is necessarily the best way for the justice system to operate.

I note that the opposition has flagged amendments to oppose these clauses in the bill. At present we are minded to support those clauses, but we do look forward to the committee stage of debate and hearing whether there are any other arguments that the government might want to put forward as to why this is a fair and just thing to do. My understanding from the briefing is that the amount of savings involved in not having to pay the costs of these successful litigants is less than $2 million. We are therefore not talking about a major budgetary measure but we are talking about a degree of unfairness to a large number of successful criminal defendants.

The second matter I wish to raise is that of the biosecurity levy. This is a matter that we have discussed in this place on a number of occasions, and it is a matter that is currently under investigation in at least two separate forums: one is a government sponsored discussion, if you like, with key stakeholders (I understand chaired by Dennis Mutton); and the other process is referral to the Environment, Resources and Development (ERD) Committee which is yet to conclude its work.

The position that the Greens bring to this issue is that we are not necessarily against biosecurity fees, we are not necessarily against the creation of a livestock health programs fund, as is proposed in this bill and that being a fund to which owners of livestock are legally obliged to contribute. However, we are concerned that the process that was set up by the government to consult stakeholders has yet to be concluded.

The ERD inquiry is yet to conclude as well. That is less significant, although ideally the ERD Committee would finish its work before the parliament debated legislation in this area. Whilst the failure of the ERD Committee to finish its work should not necessarily be fatal, it does raise the question about why the rush to legislate for this now and why is it buried within a budget bill rather than stand-alone legislation.

I understand that the Hon. Ann Bressington has an amendment to delete these clauses from the bill, and, as I understand it, if those deletions were successful that would force the government to bring back a stand-alone amendment to the Livestock Act to introduce these new fees, and I would hope that that was done after the government's consultation process was completed, not whilst it was underway.

We are inclined to support the approach of the Hon. Ann Bressington but, as I have said, we are also generally supportive of a user-pays component to these programs because, as always, there is a balance to be struck with funding programs about whether they should be funded wholly or in part out of general revenue or whether they should be funded wholly or in part by levying a particular class of persons, in this case the owners of livestock. The right balance to be struck will depend upon the extent to which the entire community benefits from the program or whether a disproportionate benefit rests with a smaller section of the community. The Greens would like to see the outcome of at least the Mutton review before deciding on the best approach.

In the briefing from the government, we were told that these amendments were simply an enabling mechanism. On my reading, if these amendments were to pass now there would be no obligation on the government to come back to parliament with the detail of the programs; in fact, that could be done through regulation. If I am wrong in that regard then I would like to hear from the government as to why I am wrong, but if this is the main chance we are going to get to debate biosecurity levies then the Greens' approach is not to debate it as part of the budget bill and to do it properly once consultation has been completed.

The third issue in this bill that I want to raise relates to highways and freeways and the development rights associated with those facilities. In his second reading explanation, the minister pointed out that freeways and expressways have high volumes of traffic and, as a consequence, they are well suited to commercial activities such as service centres and advertising. The minister also pointed out that whatever commercial activities were to be placed on these high volume roads would be placed and planned in such a way that road safety was not compromised.

The heart of this measure is raising money by the disposal, either permanently or temporarily through lease, of excess land. The types of developments proposed include service stations, advertising signs, mobile phone towers and underground fibre optic services. The minister pointed out that any such development on highways or freeways would need to go through the Development Act process and would need development approval. The government also states that one possible use of this excess land on highways and freeways would be for park-and-ride facilities for public transport users. That is certainly something that the Greens support. We know that the Mount Barker park-and-ride facility fills up early in the morning, it is not sufficient for the demand, and the Greens strongly support more park-and-ride facilities being available.

There are still a number of questions that need answering in relation to this component of the bill. I know that the Local Government Association has some concerns. I have not yet received correspondence from them but I expect to do so before we get to the committee stage. As I understand it, the issues of concern to local councils would fall into a number of categories. The first is whether it is appropriate for the state government or local government to have the care and control of these road reserves outside the actual paved area. To a certain extent, some councils might be happy to get rid of the obligation, the requirement to mow or otherwise upkeep this land. Another situation is that the council might like to retain control over the development rights that attach to those areas of road.

One issue that I would like the minister to respond to at the conclusion of the second reading debate is to explain exactly how the development arrangement on excess roads alongside freeways would work. The minister said in the second reading explanation that development approval would be required. My understanding is that, once the state government owns the land and the state government is the proponent, the pathway for development approval would be section 49. Under section 49, the requirement is for the government to give their development application to the Development Assessment Commission. The DAC then has a look at it. If the DAC is of the opinion that the proposed development is seriously at variance with the local development plan, they will give a report to that effect back to the minister.

However, the minister is not under the same obligation that a local council would be under when development that is seriously at variance with a development plan is put forward. The local council is obliged to say no, but the minister can say whatever he or she wants; in fact, I think that is the nub of the problem. For example, if a government, for revenue-raising purposes, decided to install large advertising signs the entire length of the South Eastern Freeway, right through the Hills Face Zone, all the way out towards Murray Bridge, even though such advertising signs would be seriously at variance with the Hills Face Zone provisions through which the freeway passes, there would be nothing that anyone could do about it—no appeal rights, no challenge of any sort.

The only checks and balances on government developments are that, if the local council is against it and if the Development Assessment Commission says that it is seriously at variance with the development plan, a report has to be tabled before both houses of parliament. However, we do not have the power as a parliament to overturn any approval that the minister might give.

My questions of the minister are: what exactly are you intending in relation to the freeways that are named in this legislation? We are talking about the Northern Expressway, the Southern Expressway and the South Eastern Freeway, for example. What exactly does the government have in mind? If there are petrol stations, where are they going to go? If advertising is planned, where is that going to go? Where are the park-and-ride facilities going to be placed?

How does the government propose to manage the conflict between the proprietors of service facilities just off the freeway—for example, in small townships through the Adelaide Hills—with potentially competing facilities constructed within the road reserve? In other words, if you need petrol and you are at the Stirling interchange, you would probably drive off, fill with petrol at Stirling and get back on the freeway. However, if the government is now going to take control of these road reserves and place commercial facilities in the road reserve, then that has serious implications for towns that are bypassed by the freeway. There will be no reason for people to have to leave the freeway; therefore, that is going to impact on local businesses—that is my fear anyway.

If the government has other plans in mind, if the minister could outline those at the conclusion of the second reading that would be appreciated. In relation to the location of billboards, billboards are often seen as an easy way of making money, but they are also an eyesore. When it comes to the main entry points into Adelaide, we would have to ask ourselves whether the impression we want to give is one of billboard after billboard on the major entry roads or whether Adelaide's other natural attractions ought to be allowed to dominate the landscape.

Those are the issues that have been raised with me so far. I understand that there are a large number of other issues within this bill; generally, the Greens do not have a particular concern with most of those, but we are not seeking to pull the entire bill apart. The bulk of these measures were budget announcements and will go through as part of the budget. However, where there is a case for deferring a measure, because public consultation is underway, or removing a measure because it is unfair and unjust, the Greens are more than happy to go down that path. With those words, we will be supporting the second reading of this bill and I look forward to the committee stage of debate.

The Hon. A. BRESSINGTON (11:25): I rise to indicate my opposition to the Statutes Amendment and Repeal (Budget 2012) Bill in its current form. This should come as no surprise to the government, which by now should have realised that its desperate and somewhat arrogant attempt to introduce a biosecurity levy through the back door, circumventing a parliamentary inquiry and industry consultation, has been exposed.

As members would be aware, the government has previously attempted to introduce a biosecurity levy to provide cost recovery for Biosecurity SA's animal health program. In fact, many hours of this parliament have been dedicated to debating the merits—or not—of doing so. Initially, the government intended to introduce the levy in the Livestock (Miscellaneous) Amendment Bill 2011; however, following industry backlash, it abandoned its attempt. Instead, the minister seemingly agreed to await the report of the Environment, Resources and Development Committee, to which the issue had been referred through a motion by the Hon. John Dawkins, and to further consult the livestock industry, with the minister establishing the Animal Health Cost Recovery Review Reference Group, headed by Mr Dennis Mutton, for this purpose.

It was the understanding that the levy would not proceed until both of these had been finalised that I believe convinced the Hon. Robert Brokenshire not to proceed with his amendment to the livestock bill, which would have prevented such a levy and encouraged peak industry bodies, such as the South Australian Farmers Federation, the South Australian Dairy Farmers Association, Equestrian South Australia, HorseSA and Pony Clubs SA, to genuinely engage with the reference group.

However, despite the parliamentary committee deferring its consideration of the levy until the reference group reported its recommendations, and despite the reference group still meeting and consulting with stakeholders, the government in part 7 of this bill (the budget bill) is attempting to provide the legislative basis for the animal health program fund and the levy which will swell its coffers.

To me, it demonstrates the absolute arrogance—not only the arrogance, but the trustworthiness—of this Labor government, a government that seemingly pays little regard to the views of others, whether they be expressed through its own consultation or even through this parliament, that it is willing to reveal that it has predetermined the outcome. Again, the third rule of politics is: never have an inquiry unless you know what the outcome is going to be.

In Labor's eyes there will be a biosecurity levy regardless, so why not introduce it under the cover of a budget bill? While members may choose to see this as a debate about the merits of introducing a biosecurity levy, I am happy to have that debate during the committee stage and also, if my amendment is supported, during the course of an amendment to the Livestock Act.

I personally consider this to be a debate about what we expect from the government and what we as a Legislative Council will allow it to get away with. Do we require due process and due diligence? Do we require consultation to be finalised before we consider a bill? Will we allow parliamentary committees to be sidelined and ignored in this way when a majority of the members of this council voted in support of the terms of reference? And do we expect ministers to honour their commitments? Whilst I know views in this place vary on whether a biosecurity levy is required or appropriate, surely we can all agree that we expect more from the government than this. I know I do, and, as such, I will be amending the bill to delete part 7.

The other amendment I will require before the bill will have my support is that proposed by the Liberal Party, to delete clauses 46 and 47, which amend the Summary Procedure Act 1921. While not strictly deja vu, the amendments—or at least their intent—are very similar to the proposed section 189A in last year's Statutes Amendment (Budget 2011) Bill, which would have limited cost recovery for defendants found not guilty of a summary offence. That amendment was successfully deleted by the Liberal Party, with the support of the crossbenchers.

Yet again the government is seeking to curtail the ability of successful defendants to be awarded costs for their representation, this time in relation to indictable offences heard in the Magistrates Court. While this would bring the Magistrates Court in line with the District Court, it undermines the established understanding that costs will be awarded against the police in unsuccessful prosecutions in the Magistrates Court.

Further, this will repeat many of the injustices and risks identified in relation to last year's amendments, as detailed by the Law Society and the shadow attorney-general at the time. It is my hope that, if this clause is again successfully deleted, the government will accept the position of this council and we will not need to have this debate again next year. That said, I look forward to the committee stage of the budget bill.

The Hon. R.I. LUCAS (11:31): I rise on behalf of the Liberal Party to support the second reading of the Statutes Amendment and Repeal (Budget 2012) Bill. As the Hon. Mr Parnell and the Hon. Ms Bressington have outlined, concerns have been raised by a number of stakeholders and reflected by members in this chamber about two specific elements of the bill.

On behalf of the Liberal Party, the Hon. Stephen Wade will move during the committee stage the appropriate amendments to reflect the decision taken by the Liberal party room on the issue in relation to court costs, and the Hon. John Dawkins, on behalf of the party room, will put during the committee stage the Liberal Party's position in relation to the biosecurity levy issue.

I do not propose to delay the proceedings at the second reading by going through the detail of those particular amendments, other than to indicate that the Liberal Party has expressed its concerns about those issues publicly not only in relation to this budget but on previous occasions when this parliament has addressed both of those issues. My contribution to the second reading will be brief. In relation to my overall comments about the 2012-13 budget, I will make the majority of my comments during my contribution on the Appropriation Bill later in the week, and I do not intend to repeat them during this debate.

The other point I should make is that, whilst the majority of the debate during the committee stage will be about those two issues (that is, court costs and the biosecurity levy issue), it is important to note that the bill does traverse a whole range of other issues, including issues in relation to long service leave and retention entitlement, the first home owner grants, payroll tax and stamp duties amendments, the repeal of the State Bank of South Australia Act and a range of other issues that have been incorporated into the Statutes Amendment and Repeal (Budget 2012) Bill. The Liberal Party is not proposing to oppose or to move amendments in relation to all those issues.

I want to highlight and to congratulate my colleague the member for Davenport on his exposition of the relevant provisions of the bill during the second reading debate in another place. I noted that during the committee stage the minister in charge (Minister for Finance, representing the Treasurer) undertook to come back with advice on a number of questions that the member for Davenport raised. I hope the minister in this chamber who is handling the bill will be in a position, either at the conclusion of the second reading debate or whenever we come to the committee stage, to provide the answers that have been promised by minister O'Brien in another place.

One provision in particular was a series of questions that the member for Davenport asked about the retention leave issue. He raised some questions in relation to the Director-General of Education under clause 4(2)(3a) being able to make a determination under which the accrual of the entitlement will be calculated instead as a number of working hours' leave for each completed month of effective service. He put the question as to how the parliament would be advised that such a determination would be made and whether or not there should be an amendment to the act in another place to have that matter tabled by regulation so that the parliament is aware that a different form of calculation has been applied by the Director-General. Minister O'Brien indicated that he would get advice from that section within Premier and Cabinet (the Public Sector Workforce Relations Unit) and come back with advice on that particular matter.

The minister in that area, and I think one or two other areas, has undertaken to provide further information and I seek from the minister to put on the public record any response that the minister has already provided to the member for Davenport or, if he has not provided a response to the member for Davenport, whether the minister in charge of the bill in this place will place on the record the government's response to that question and any other question that the minister promised to provide to the member for Davenport during the House of Assembly debate on 27 June.

With that, I indicate the Liberal Party's support for the second reading of this bill, and again I repeat that my colleagues will outline the Liberal Party's position on those issues during the committee stage.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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