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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-20 Daily Xml
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PETROLEUM AND GEOTHERMAL ENERGY (TRANSITIONAL LICENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 September 2012.)

The Hon. M. PARNELL (11:07): The Greens oppose the second reading of this bill. We oppose it because it is bad law, we oppose it because it has resulted from a bad process and we oppose it because it represents a deep-rooted disrespect for Aboriginal people and their rights. This bill effectively denies the continuing connection between Aboriginal people and their traditional lands and the responsibility that goes with that connection. It is bad law and we oppose it.

However, I am speaking today under sufferance because this bill is being rushed through with unseemly haste with no adequate reason having been provided. The normal practice in this place is that members should have the chance to adequately consult with stakeholders before having to engage in debate on a bill. It is common practice for all members to talk to stakeholders, find out what the issues are, then talk to government, and put to government officials the issues and questions that have been raised by stakeholders, and we do that in order to know how the legislation we pass in this place affects the real world and the people who live there. So, that is the normal process.

The time-honoured practice in this chamber is one that we never insist on a bill being debated, much less being voted on in the same week in which it has been introduced into this chamber. We have had this bill a total of two days. The normal practice is that it should sit on the Notice Paper for at least one sitting week, so really we should be debating this in the middle of October when the next sitting week is scheduled to take place.

This bill is being rushed through with unseemly haste and whilst we are reluctantly engaging at the second reading, which we oppose, we will be opposing this bill going into committee. I have no doubt that the government expects that the bill will go through committee and that it will go through to a final vote. The minister has advisers ready, the departmental officials are here and parliamentary counsel are ready to go, yet this is completely against the standards of practice that we have all come to accept and honour in this place.

The Hon. K.L. Vincent: Shame!

The Hon. M. PARNELL: The Hon. Kelly Vincent interjects, 'Shame!' and I agree with her entirely: it is a shameful practice that—

The PRESIDENT: The Hon. Kelly Vincent is out of order.

The Hon. M. PARNELL: —is being undertaken today. But the rules around not debating a bill and not voting on it in the same week that it has been introduced are not set in stone. There can be reasons, and there can be good reasons why, in the interest of justice and fairness, it can be appropriate for a bill to be rushed through.

For example, if a bill is designed to avoid harm, and there is evidence that harm will result if the bill is not very quickly passed and brought into law, then the Greens will support the suspension, if you like, of the normal practice of this chamber. We have done that in the past, and I expect we will be doing it again this afternoon.

There is another bill before us where the government has made the case that there is some harm that might result if we do not pass the bill quickly; the Greens have accepted that position. We are not going to stand on ceremony and say, 'No, we insist that this bill stay on the table for another whole sitting week.' If the government can make its case, then we are prepared to waive the rules, but in this particular instance the government has not made the case.

The other precondition for breaching the accepted practice of this council is if a bill is non-contentious, and that cannot be said of this bill: this bill is contentious. Despite the fact that we have only had a very small number of days to actually talk to anyone about this bill and what it means, I can say categorically that the bill is contentious.

This bill does not have universal support in the community, and it certainly does not have universal support in this parliament, so why on earth is the government pressing ahead with trying to conclude debate today? I will have a large number of questions in committee pursuing that issue, making the government make its case as to why this is so urgent that we have to suspend our normal practices to rush it through.

There is another category where a bill can sometimes go through if it is non-contentious, and that is genuine correction of an error. The government is going to rely on that; they are going to say this is the genuine correction of an error. But my understanding, from the limited consultation I have undertaken, is that is not true; that is contested ground as well—whether this is simply a small administrative fix-up or whether it is, in fact, affecting substantive rights.

I should say, for completion, that there is one further category where the old parties in particular are happy to suspend the normal practice of the Legislative Council, and that is the case of snouts in trough. Whenever we get an increase in politicians' pay or an increase in superannuation, we find that goes through usually on the same day that it is introduced and, more often than not, it is likely to be budget day, often at the same time the Treasurer is on his feet delivering the budget in the other place; that is an excellent time to rush through a bill to give politicians a pay rise or extra superannuation.

This bill has come to us late and it has caught many of us by surprise. In fact, the first I heard of it was when I was approached by a journalist from TheNational Indigenous Times, one of the Indigenous newspapers, and asked what I thought about the bill. The first thing I said was, 'Well, we haven't got this bill yet. It hasn't reached the Legislative Council,' and I explained to the journalist what the practice of the Legislative Council was.

I said, 'Well, I don't expect that the government would be so improper as to breach parliamentary conventions,' but the journalist insisted that what he was saying was true, and he said that there was no consultation with Aboriginal people. I was not in a position to be able to verify whether or not that was the case; I since have and found that the consultation has been absolutely appalling, if not non-existent.

Nevertheless, on the basis of what the journalist told me, I was happy to say that I thought it was appalling any bill would be pushed through the parliament without consultation with the people it most affects, and certainly without giving members of parliament the opportunity to consult with stakeholders. That is our first objection; it is in relation to haste. Whilst we do not believe that we should be doing the second reading today, we have agreed that we will put our initial remarks on the record, and that is what I am doing now, and my colleague (Hon. Tammy Franks) will do so as well.

If the government does try to force it through the committee stage, as I said, I have a large number of questions around the unseemly haste and looking to the government to prove why it is necessary. My suspicion is that there are no real and genuine reasons, that this is really self-diagnosed panic. If that is not the reason, then there are some even more sinister reasons that relate to the subverting of the legal process and undermining of litigation that is on foot, and we will get to that in a second.

In fact, I will get to that right now, because the Hon. Stephen Wade alluded to this very briefly and in general terms yesterday but I am happy to go on the record a little bit more expansively. We know that there is a dispute between Aboriginal native title claimants and oil and gas companies in the north-east of this state over the right to negotiate and, in particular, in relation to various activities where those traditional owners believe they have a right to have a say and they want to enter into negotiations with the company. My understanding is that negotiations have not been fruitful at an informal level and we now find that this matter is before the courts.

The Attorney-General's Department has produced a letter which I will read into the record. It is dated 7 September 2012 and, at the outset, I will read the final sentence and then proceed to the rest of the letter. In fact, this is the penultimate sentence, and it says, 'Please be advised this is an open letter.' So, it was clearly a letter that the Crown Solicitor's Office expected would be in the public realm and form part of general debate. As I say, the letter is dated 7 September 2012. It is addressed to the SA Native Title Services Ltd and it is for the attention of Mr Michael Pagsanjan. The letter reads:

Dear Michael,

Re Fay Nicholls and Ors v State of SA and Ors (No. SAD 64 of 2012)

I write to you regarding the Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill 2012. This Bill will retrospectively amend sections 82 and 83 and the Schedule of Transitional Provisions of the Petroleum and Geothermal Energy Act 2000 (SA). I understand that you have been provided with a copy of the Bill from the Department of Manufacturing, Innovation, Trade, Resources and Energy. The Bill has now been introduced to Parliament.

The proposed amendments to the Petroleum and Geothermal Energy Act have retrospective operation in order to ensure that existing transitional Petroleum Production Licences were granted, renewed or consolidated consistently with Part 2 Division 3, Subdivision 1 of the Commonwealth Native Title Act 1993 and therefore did not attract the right to negotiate. These provisions will deem consolidated transitional licences such as PPLs 228, 232 and 237 to have been granted for 21 years and the underlying basis for this litigation will no longer exist.

I might just pause there. This is a letter from the Crown Solicitor's Office to the legal advisers for parties to litigation basically saying that, as a result of legislation introduced—not passed—into one half of the parliament, therefore the underlying basis for the litigation will no longer exist. The letter goes on:

I am instructed to advise that should your client discontinue these proceedings, my client will meet your client's reasonable costs.

In other words, you could call that an offer, you could call it a threat, you could call it whatever you want. I call it despicable. Here is the government lawyers writing saying, 'We have a piece of legislation before the parliament which kills your court case, so discontinue.' If they discontinue they say they will pay their costs but, nevertheless, that means the action would end and the merits of the issue would not be agitated and would not be resolved. The letter goes on:

The first respondent will write in the same terms to the other respondents (save as to costs) and advise accordingly. I am conscious that this matter has been set down for hearing on the 8th and 9th  October 2012 before Mansfield J. in the Federal Court, and that the matter therefore has some urgency. Accordingly, I request that you advise by close of business on 21 September 2012 if you are prepared to discontinue these proceedings.

And then the letter concludes:

Please be advised that this is an open letter. I would be pleased to discuss any issues arising from the proposed legislation at your convenience.

The letter is signed, 'Yours faithfully, Crown Solicitor.' A number of things arise from that letter. If the intent of this legislation is to undermine legal proceedings that are on foot, then that is an absolute abuse of the parliamentary process. I will not say that I am surprised. What I would say is: why does the government not do what it normally does and wait until it loses a court case and then introduce retrospective legislation and try to fix it up?

It is cutting off even the debate; it is cutting off the agitation of the issues. I do have some experience with the government cutting off legal proceedings with legislation after it has lost. The best known example probably would be back in 1999 when I won this state's longest ever environment trial of tuna feedlots in Louth Bay, and, within a week, the government had changed the law to undermine the results of that court case.

We also saw in the case of the Whyalla Steelworks that, when the EPA finally did its job, when it finally issued a tough anti-pollution licence that protected the health of the residents of Whyalla, the government stepped in after the event to cancel the authority of the EPA, cancel its licence and reinstate through legislation a licence that the company was happy with. That is the normal way that skulduggery works in this place.

The government will have an opportunity to counter this, but it seems pretty clear from this letter that this legislation and the timing of this legislation is aimed to prevent legal proceedings being agitated in our courts. It is also interesting that the letter says that the party that it is written to, SA Native Title Services Ltd, has until the close of business tomorrow night in order to decide whether it is going to discontinue its proceedings.

How curious that that date was chosen, being the day after this last day of sitting for this week. A question that I have of the government, and it is a question of the opposition as well, is: had the government and the opposition stitched up by 7 September the notion that this bill would pass through both houses of parliament by today, by 20 September?

The Hon. S.G. Wade: No.

The Hon. M. PARNELL: The Hon. Stephen Wade interjects no, and I am grateful for that interjection. He is saying that there was no deal stitched up, certainly on the part of his party. Certainly I would suggest that the government has, working with the Crown Solicitor's Office, determined that it wants this legislation through. It did not have the courtesy to tell us back on 7 September that this was going to happen. I am not saying that the Greens would have supported the legislation, but had it done that we would have had an extra couple of weeks to talk to stakeholders.

If it had been clear and honest about its intentions on 7 September and told us that it was going to push this legislation through, at least we could have had the opportunity to talk to some stakeholders. But it has not had that courtesy. It has not shown the Legislative Council that respect, and I think it is absolutely appalling.

The Hon. Stephen Wade, and I think members in the other place, has referred to the fact that Santos, a major oil and gas producer in the north-east of our state, is a key player in this legislation. What I do need to say is that I do not have any particular information about the litigation that is on foot. All I have is the citation that it is Fay Nicholls & Ors v the State of South Australia & Ors, but I accept that Santos is probably in there; and if I had had more time to access court documents through the court's public register provisions then I would certainly have more information. Certainly my understanding is that Santos is involved.

The question that then needs to be asked is: does the haste with which this bill is being pursued have anything to do with any favours that are owed to Santos or any promises that have been made to Santos? Because we know that the relationship between Santos and the government is a close one. We know that it is a financial one.

I seek leave to have inserted into Hansard a purely statistical table from the Australian Electoral Commission showing the returns, the donations that have been made to the Australian Labor Party, South Australian branch and to the Liberal Party of Australia, South Australian branch; and donations by Santos from the period 2005-06 to the present date.

Leave granted.

Donor Annual Returns 2005-06

Donor: Santos Ltd

Donations made to:

Name Address Date Value
Australian Labor Party (South Australian Branch)—SA 141 Gilles StreetADELAIDE SA 5000 1/03/2006 $1,000.00
Australian Labor Party (South Australian Branch)—SA 141 Gilles StreetADELAIDE SA 5000 1/03/2006 $3,000.00
Australian Labor Party (South Australian Branch)—SA 141 Gilles StreetADELAIDE SA 5000 30/06/2006 $1,600.00
Liberal Party of Australia (S.A. Division)—SA GPO Box 20ADELAIDE GPO PRIVATE BOXES SA 5001 1/07/2005 $1,100.00
Liberal Party of Australia (S.A. Division)—SA GPO Box 20ADELAIDE GPO PRIVATE BOXES SA 5001 28/10/2005 $1,000.00
Liberal Party of Australia (S.A. Division)—SA GPO Box 20ADELAIDE GPO PRIVATE BOXES SA 5001 24/02/2006 $700.00

Extracted from Australian Electoral Commission website

http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=8&ClientID=626


Donor Annual Returns 2007-08

Donor: Santos Ltd

Donations made to:

Name Address Date Value
ALP—SA 141 Gilles StreetADELAIDE SA 5000 16/08/2007 $2,500.00
ALP—SA 141 Gilles StreetADELAIDE SA 5000 22/08/2007 $15,000.00
ALP—SA 141 Gilles StreetADELAIDE SA 5000 6/09/2007 $5,500.00
ALP—SA 141 Gilles StreetADELAIDE SA 5000 6/09/2007 $450.00
ALP—SA 141 Gilles StreetADELAIDE SA 5000 21/05/2008 $250.00
ALP—SA 232 Main South RdMorphett Vale SA 10/06/2008 $500.00
ALP—SA 141 Gilles StreetADELAIDE SA 5000 6/06/2008 $370.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 1/08/2007 $1,500.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 17/08/2007 $2,750.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 18/07/2007 $5,000.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 17/08/2007 $1,400.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 17/08/2007 $275.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 27/08/2007 $5,000.00
Liberal Party of Australia (S.A. Division)—SA PO Box 29Jamestown SA 5491 12/12/2007 $2,000.00
Liberal Party of Australia (S.A. Division)—SA 104 Greenhill RdUnley SA 5061 5/11/2007 $2,500.00
Liberal Party of Australia (S.A. Division)—SA PO Box 37 Ingle Farm SA 5098 5/09/2007 $2,000.00
Liberal Party of Australia (S.A. Division)—SA 61 Henley Beach RdMile End SA 5031 6/11/2007 $500.00
Liberal Party of Australia (S.A. Division)—SA 429 Magill RdSt Morris SA 5068 7/11/2007 $200.00

Extracted from Australian Electoral Commission website

http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=10&ClientID=626


Donor Annual Returns 2008-09

Donor: Santos Ltd

Donations made to:

Name Address Date Value
Australian Labor Party (South Australian Branch) 141 Gilles StreetADELAIDE SA 5000 27/03/2009 $2,000.00
Australian Labor Party (South Australian Branch) 141 Gilles StreetADELAIDE SA 5000 8/04/2009 $370.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 11/11/2008 $95.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 7/04/2009 $1,100.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 9/04/2009 $500.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 28/08/2008 $135.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 13/10/2008 $1,650.00
Liberal Party of Australia (S.A. Division) GPO Box 20ADELAIDE SA 5001 6/05/2009 $75.00

Extracted from Australian Electoral Commission website

http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=23&ClientID=626


Donor Annual Returns 2009-10

Donor: Santos Ltd

Donations made to:

Name Address Date Value
ALP-SA 141 Gilles StreetADELAIDE SA 5000 17-Jul-09 $600.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 5-Mar-10 $2,500.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 23-Apr-10 $1,250.00
LIB-SA Sturt FEC 429 Magill RoadST MORRIS SA 5068 29-Sep-09 $550.00
LIB-SA Sturt FEC PO Box 540MAGILL SA 5072 23-Apr-10 $250.00
LIB-SA Sturt FEC PO Box 540MAGILL SA 5072 28-May-10 $240.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 16-Mar-10 $300.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 1-Mar-10 $300.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 20-May-10 $1,100.00
LIB-SA 104 Greenhill RoadUNLEY SA 5061 11-May-10 $1,100.00
LIB-SA Boothby FEC PO Box 41PARK HOLME SA 5043 27-May-10 $250.00
LIB-SA Boothby FEC PO Box 41PARK HOLME SA 5043 20-May-10 $250.00

Extracted from Australian Electoral Commission website

http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=24&ClientID=626


Donor Annual Returns 20010-11

Donor: Santos Ltd

Donations made to:

Name Address Date Value
ALP-SA 141 Gilles StreetADELAIDE SA 5000 16-Jul-10 $1,000.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 18-Aug-10 $2,750.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 27-Aug-10 $1,110.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 2-Sep-10 $750.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 6-Sep-10 $1,500.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 7-Jun-11 $500.00
ALP-SA 141 Gilles StreetADELAIDE SA 5000 8-Jun-11 $500.00
LIB-SA 104 Greenhill RdUNLEY SA 5061 12-Aug-10 $150,000.00
LIB-SA PO Box 257TORRENSVILLE PLAZA SA 5031 1-Jul-10 $400.00
LIB-SA PO Box 257TORRENSVILLE PLAZA SA 5031 29-Jul-10 $2,500.00
LIB-SA PO Box 626GLENSIDE SA 5065 17-Aug-10 $300.00
LIB-SA 104 Greenhill RdUNLEY SA 5061 30-Aug-10 $5,000.00
LIB-SA GPO Box 20ADELAIDE SA 5001 15-Sep-10 $1,800.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 22-Nov-10 $1,650.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 31-Mar-11 $2,200.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 12-Apr-11 $2,500.00
LIB-SA PO Box 540MAGILL SA 5072 15-Apr-11 $250.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 19-Apr-11 $4,400.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 19-Apr-11 $550.00
LIB-SA GPO Box 20ADELAIDE SA 5001 17-May-11 $1,100.00
LIB-SA PO Box 3086NEWTON SA 5074 10-Jun-11 $1,500.00
LIB-SA GPO Box 1232ADELAIDE SA 5001 29-Jun-11 $165.00

Extracted from Australian Electoral Commission website

http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=48&ClientID=626


The Hon. M. PARNELL: Thank you, Mr President, and I thank members, because you have saved me having to read out five pages of donations, many of which are very large. All of them, just about, are over the $1,000 mark, and together coming up with many tens of thousands. The table itself does not have the totals, but there are six pages of donations from Santos to the Liberal Party and the Labor Party.

I would like now to move on to the merits of the bill. At its most basic level, this bill is about a dispute between Aboriginal native title claimants, traditional owners, and mining companies over whether or not the Aboriginal people have the right to negotiate and the right to the provisions of the commonwealth Native Title Act. My understanding is that that is the main point in dispute and that the government's position is that it was never intended that what it regards as old licences and should somehow be re-enlivened and attract the provisions, including the right to negotiate. That, as I understand it, is the main purpose of this bill.

The government sees it as an administrative fix-up, but other people have not seen it in quite the same terms. In fact, I refer to the debate of just the other day in the House of Assembly, where I note that the member for Stuart (Mr van Holst Pellekaan) referred to some of the commentary around this bill, especially in relation to this idea that it is just an administrative fix-up.

Mr van Holst Pellekaan quoted an Arabunna native title chairperson, Aaron Stuart, and his criticism of the bill as it was reported in The Transcontinental newspaper in Port Augusta. According to the member for Stuart, who referenced that newspaper, Mr Aaron Stuart had called this bill 'administrative racism'. He went on to say that the Commissioner for Aboriginal Engagement, Khatija Thomas, said that she was dismayed at the introduction of this bill. He quotes her, presumably out of the same newspaper:

This bill flies in the face of government rhetoric supporting the engagement of all South Australians, including traditional owners.

As I understand it, there was a recorded exchange between the Hon. Tom Koutsantonis and the member for Stuart in the Hansard, and maybe some exchange that was not recorded. However, I certainly know, having met up on another matter with the Hon. Tom Koutsantonis very shortly after this exchange, that he was somewhat upset at what he thought was an allegation against him that he was a racist.

I do not repeat private conversations in this place, other than my side of it, but I said, 'I don't think you're a racist, Tom. I don't think that at all. That's not a term that I throw around.' However, when I went back and read the Hansard that was not what the member for Stuart had said at all. He had referred to a third party who was describing the legislation rather than the minister. I am happy to put on the record again today that I do not think the Hon. Tom Koutsantonis is a racist, but I think there are serious problems with racial discrimination in relation to this bill.

In fact, other people have referred to it in similar terms: that it is racially discriminatory in that it applies to only one group of people, and that is Aboriginal people, and it does only one thing—it takes away from them something they either believe they have or are seeking the guidance of the judiciary to find out whether or not they in fact have it. It is not that hard to analyse this and say, well, if it is only affecting one group of people negatively and they are Aboriginal people, then I think there is a case to say that it is a racially discriminatory piece of legislation.

Another aspect of this bill that certainly concerns the Greens, and other people I have spoken to, is that it is retrospective. Clause 3 of the bill says that the main operative provision is to go back 12 years. It goes back to 25 September 2000. The argument, as I understand it, from the government as to why it needs to be retrospective, is that it is essentially putting current provisions back where the government believed they always were, and that is, having that earlier status of petroleum tenements that do not attract the right to negotiate.

Before I go further on retrospectivity, one thing that I think is interesting in this is that the government's claim that the current licences are really just the same old licences, that they are not anything new is, as I understand it, one of the main points of contention. In fact, I would have thought that a licence or a tenement, or whatever it is for a limited term that is transformed into something that is open-ended and of unlimited duration, is a very different creature and should in fact attract what is now the current standard of behaviour for all those who participate in that industry.

I think that is part of the way that society regulates itself. I was thinking about what would be a good example to use. If you think of someone who has a restaurant and they might have had that restaurant for 50 years, they might want to claim in regard to the laws that prevent people smoking in that restaurant, 'They're retrospective. They're terrible; we never used to have to do that. You've changed the rules on us.' We used to be able to discriminate against women. We did not have to employ them; we did not have to serve them. Now the law has changed and it will not let us. It used to be that you were able to decide your own standards of hygiene for your restaurant. You cannot do that now.

The point is that, as society evolves, we do impose new and more onerous standards on existing operations. The question here is whether or not the oil and gas companies should be locked into what, in effect, I think is special protection that dates back more than a decade or whether, on the consolidation and renewal and extension of term of these licences, they should be brought into the 21st century and be made to comply with current standards, including standards of engagement of Aboriginal people. So I think the retrospectivity of this legislation is misplaced and I do not think the government has made the case for it being a valid measure of land.

In fact, I will give another example where we have passed legislation that has been retrospective, that is, the contaminated land situation. Back in the old days, if you wanted to get rid of your toxic waste, for example in an oil refinery, you would just get a backhoe, you would dig a pit and you would dump your toxic waste in it and that contaminated the land. We decided as a parliament that, when we passed legislation, we would call people to account for their behaviour. So retrospectivity does have useful purposes, but when retrospectivity is used to disenfranchise people, especially Aboriginal people for whom disenfranchisement has been the rule rather than the exception, then the Greens believe that it is just not on.

In relation to questions on the record, given that it is the government's intention, as I understand it, not to stop at the appropriate time—which is at the second reading—but to proceed, I tell the government now that I will have a large number of questions that relate to testing the government's claims that this bill is necessary, testing the government's claims that people have been consulted—or maybe they have not made that claim.

I will test whether they believe they have done any consultation, let alone whether it has been adequate. We will seek to test the constitutional validity, for example, test the appropriateness of imposing legislation for the purpose of affecting judicial proceedings, a whole range of issues. I am hoping that when we come back in October the debate will be about the detail of this legislation. As I said earlier, we have been taken by surprise. It is unorthodox, it is unusual and, the Greens say, it is unacceptable for us to be forced to debate the whole of the detail of this legislation today.

With those brief remarks I will end my second reading contribution. I look forward to the contribution from my colleague the Hon. Tammy Franks, who, as all members would know, has a particular interest in Aboriginal engagement issues and I would urge the council to heed her remarks as well.

The Hon. T.A. FRANKS (11:36): I rise to be the second speaker today on behalf of the Greens to speak to the Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill. I do so noting that this bill has spent less than an hour and a half, in fact closer to 60 minutes, being debated in the House of Assembly, if you could call it a debate, and without the contribution of the Greens would have spent less than 25 minutes being debated in this place.

The Greens put on the record that we oppose this bill. We oppose the second reading of the bill. We oppose the process. We call the government to account on a very flawed process that has brought this piece of legislation before us. Less than 48 hours after the second reading debate occurred in the other place, we have continued the second reading. I understand that the intention of the government is to finalise all stages of debate on the bill today.

The principle of the right to negotiation is fundamental to the bill and it is this process of government negotiation and consultation that is absolutely and seriously flawed. In introducing the bill, the minister, the member for West Torrens, stated that it had been drawn to the state's attention that there are potential unintended consequences arising from the transitional provisions of the Petroleum and Geothermal Energy Act that have led to the need for this particular bill, which he goes on to say that he took to cabinet in August of this year.

My questions for the minister representing the minister, which were certainly not answered in the other place, nor asked, are: who drew the state's attention to this unintended consequence? When was that drawn to the state's attention? In what time frame was the state able to give responses to the people who drew the state's attention to this particular issue? What options were considered with regard to the legislation before us? Were there other ways of addressing this issue? I would also like to ask when this bill received caucus approval, but I am not sure I will get an answer to that.

The state, we are told by the minister, has concerns that if these proposed amendments before us in the legislation we debate today are not made many petroleum production licences could be found to be flawed on the basis of the previously aforementioned unintended legislative effect. Can the government detail, before we commence the committee stage, which licences it has assessed are now potentially flawed, and what communications have been undertaken by government with those licence holders, including details of when, where and how those communications have occurred?

In presenting this legislation to the parliament, the government states that it has carefully weighed up the need to provide certainty to petroleum producers in the Cooper Basin—who the government say have continued to produce petroleum on renewed tenements in the belief that they have been properly issued—against the understandable desire of native title parties to participate in the economic benefits of petroleum production.

In introducing this bill, the government then goes on to say that it is confident that native title parties and petroleum producers will work together in a productive and positive manner to ensure mutually beneficial economic outcomes from petroleum production in this important part of the state. My question to the government is: what productive part has it played in ensuring that this situation will occur? Has it not, in fact, created more problems by the flawed process of this particular bill in eroding trust between parties and certainly eroding trust in government?

Criticism of this bill has, of course, come from both Aboriginal people and Aboriginal organisations, and I wish to draw members' attention to that. I echo the words of the member for Morphett, the shadow minister for Aboriginal Affairs, in addressing this bill in the other place. He said that there had been considerable angst amongst some of the Aboriginal citizens of South Australia. As the shadow minister for Aboriginal Affairs, he then went on to say that he was representing those concerns in the chamber.

He referred to the media release put out by Khatija Thomas and outlined some of the concerns that the Commissioner for Aboriginal Engagement raised directly in relation to this particular bill before us on 7 September 2012, shortly after it was introduced. Her news release, issued on that day, is headlined, 'Minister introduces bill to remove native title rights from Aboriginal people'. It goes on to say:

A bill that seeks to remove native title rights from Aboriginal people has been introduced into South Australian parliament this week. The bill, entitled the Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill 2012, was introduced by Tom Koutsantonis, Minister for Mineral Resources and Energy.

Urgently introduced to parliament, without any notice to or consultation with Aboriginal people, the bill seeks to retrospectively remove the Right to Negotiate procedure from Aboriginal people in relation to petroleum production licences granted to petroleum producers in the Cooper Basin, including Santos Limited. In introducing the bill, the minister stated that the application of the Right to Negotiate procedure was an—

and she quotes him here—

'unintended consequence arising from transitional provisions', highlighting the 'need to provide certainty to petroleum producers in the Cooper Basin'. The Right to Negotiate procedure is an important right afforded to Aboriginal people pursuant to the Native Title Act 1993—

of course, of commonwealth law—

so that an agreement can be made between stakeholders and Aboriginal people on important issues, including protecting cultural heritage and providing consent for activities that affect native title. The bill is intended to cover licences that did not comply with the Right to Negotiate procedure and may be invalid.

Khatija Thomas goes on to say that she is dismayed at the introduction of this bill and that:

'This bill flies in the face of government rhetoric supporting the engagement of all South Australians including traditional owners.'

I repeat: this is from the Commissioner for Aboriginal Engagement. She continues:

'First, the process adopted by the government to introduce the bill without notice to Aboriginal people is contrary to international law requiring that only free, prior and informed consent be given by Aboriginal people for decisions such as the one to remove a native title right. Second, the bill undermines our democratic processes.'

Commissioner Thomas also stated that the bill demonstrated the government's willingness to side with big business no matter what the consequence.

She is joined in her criticism in this particular press release by Keith Thomas, the South Australian Native Title Services Ltd chief executive officer, who says he is appalled at the decision to introduce the bill. These are not light words and these are not lightweight people in terms of the Aboriginal voice being heard in this debate. He goes on to say:

We encourage all stakeholders to reach agreements to properly manage native title rights and interests, and this Bill is an unfortunate attempt by the Government to meddle with our efforts to build sustainable relationships. Such agreements are a result of a legal right to negotiate in good faith providing certainty for all parties, and can result in benefits that help foster community development. This Bill attempts to remove that right.

Mr Thomas goes on to say that the impact of this bill should not be underestimated. He appears to believe that this is not an inconsequential bill that we are debating before us, and certainly I would say that it is not a bill we should have been rushing through the parliament without proper briefings, without proper consultation and without proper information. He concludes:

Without agreement, risks to native title interests and cultural heritage will remain unchecked. We are concerned about the message this sends to Aboriginal People.

Of course, members would have similarly heard from the South Australian Native Title Services (SANTS) in several emails from Mr Michael Pagsanjan, a legal officer there. Certainly alarm bells were raised with the receipt of the first email on 4 September from SANTS which states:

We write to urgently express our serious concerns with the Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill 2012...The...minister Tom Koutsantonis has today given notice to the House of Assembly that he will introduce the Proposed Bill tomorrow. In short, our concerns relate to the Proposed Bill's impact on native title rights in South Australia.

He goes on to give background:

...SANTS is the Native Title Services Provider for South Australia pursuant to the Native Title Act 1993...SANTS currently acts for a number of native title parties, including the Yandruwandha Yawarrawarrka Native Title Claimants (the YY Traditional Owners) in the Cooper Basin, in the State's far north-east.

The YY Traditional Owners are currently attempting to prosecute their native title claim, and, seek a declaration in the Federal Court in relation to certain Petroleum Licences granted to (amongst other parties) Santos Ltd by the State of South Australia. In short, the latter proceedings relate to Petroleum Licences granted under South Australian legislation as they relate to right and interests under the NT Act. If the YY Traditional Owners are right, we say that Petroleum Licences should have been subject to the Right to Negotiate procedure under the NT Act (there is no dispute that Petroleum Licences were granted without complying with that procedure). Those proceedings commenced in March 2012 after years of unsuccessful attempts to engage Respondent parties to address the issues with those Petroleum Licences without litigation. His Honour, Justice Mansfield, has listed the matter for hearing on 8 October 2012, and several pleadings have been filed in preparation for that hearing.

The email goes on:

Nature of our concern

We were advised by a Manager within the Department for Manufacturing, Innovation, Trade, Resources and Energy of the Proposed Bill this afternoon. We were otherwise unaware of the Proposed Bill.

The email continues:

It is apparent that the Proposed Bill seeks to actively undermine the rights and interests of the YY Traditional Owners by retrospectively addressing the issues to be heard and now resolved in the Federal Court. While we reserve our right to formally comment and be consulted on the Proposed Bill, and do not concede that the Proposed Bill will sufficiently address the legal issues, our preliminary concerns are three-fold. First, it is our preliminary view that this Bill will impact the current litigation that is ultimately seeking to protect and promote the rights and interests of the YY Traditional Owners in accordance with the NT Act. Second, we consider that the introduction of the Proposed Bill without sufficient notice to SANTS or the YY Traditional Owners raises issues around the fair conduct and proper management of the litigation currently on foot. Third, we are of the opinion that the Proposed Bill raises some extremely technical legal issues that ought to be properly addressed to ensure the validity of any amendments to the State's Petroleum legislation, which will impact whether or not rights under the [Native Title] Act will be afforded to Traditional Owners in South Australia.

For these reasons, we do not consider that it is appropriate to introduce the Proposed Bill at this stage, without sufficient notice or consultation with [the South Australian Native Title Services] or the YY Traditional Owners.

Mr Pagsanjan goes on to provide contact information, should there be any queries from members of parliament. I note that not only had the minister or the government not contacted the South Australian Native Title Services before the introduction of this particular bill to consult and ensure that the democratic process was being followed, but when they did find out, it was simply through a department official who informed them that the bill had already been given notice of. There was no chance for any input into this bill and, certainly, the lack of respect does not bode well for the content of this bill having been well thought through.

I will go on to say that I have also spoke to various other groups, such as the Aboriginal Legal Rights Movement, who are getting back to me to confirm this, but it is my understanding that they were not contacted with regards to this bill. I have also confirmed with the Commissioner for Aboriginal Engagement, Ms Khatija Thomas, that she was not contacted regarding this particular bill before it hit this parliament.

If Ms Thomas, SANTS and ALRM have not been contacted, my question is: were any Aboriginal people actually contacted prior to the drafting and introduction of this bill at all? Is this a government that really does believe that it is moving from a 'decide and defend' model to a more consultative approach? How can they go out and say with a straight face that they actually have any respect for democracy if they can table a bill like this without talking to the most obvious stakeholders in this particular debate?

I would not say that the government has to agree with all stakeholders with which it consults, but it does have a duty of care in presenting legislation to this place to ensure that stakeholders who are appropriately part of a debate have actually been consulted prior to moving such legislation. The need to make sure that we are handling native title and native heritage issues properly is incredibly important.

The shadow minister for Aboriginal affairs drew attention to this in the other place. He raised what I think is quite a pertinent issue for this debate when he noted that an exploration venture in the northern part of South Australia had been blocked by a court ruling in favour of the land's traditional owners.

Argonaut Resources, and its joint venture partner, Straits Resources, had been planning to start drilling for copper, gold and iron oxide in parts of Lake Torrens and Andamooka Island. Those companies had actually been given ministerial approval, I understand, to access this area, which, of course, is part of the traditional lands of the Kokatha Wati and Adnyamathanha people. But the South Australian Supreme Court overturned that approval, ruling that the 'traditional owners were denied procedural fairness in not being properly consulted'.

That was reported in the Koori Mail earlier this year. I understand that, as a result, on 25 January, the shadow minister for Aboriginal Affairs wrote to the Minister for Aboriginal Affairs and Reconciliation, and he asked that minister:

Can you let me know what the government plan is to resolve this matter, and if there are indeed any amendments to the Aboriginal Heritage Act being investigated?

In a letter dated 9 March 2012, minister Caica replied to the shadow minister:

Dear Duncan,

Thank you for your recent letter regarding media comments about the ruling by the Supreme Court in the matter of Starkey and Ors v the State of South Australia...

I am aware that both prior to and since these court matters, Aboriginal groups have met and negotiated with mining companies (and other proponents) on questions of land access and heritage protection. This approach of resolving matters through negotiation is consistent with the government's policy in the native title area and is likely to be reflected in the new Aboriginal heritage legislation which is being tabled in parliament following the completion of the current review.

That brings me to the current review of the Aboriginal Heritage Act. I say 'current' facetiously. Perhaps it is in line with the minister's definition of over 140 days being 'soon'—a different minister, of course, but perhaps that is indicative of the government's time frame on these things. We have not yet seen a final bill from the review of the Aboriginal Heritage Act, despite assurances being made both in the corridors of this place in this year and the announcement by the Governor, after the proroguing and reopening of this parliament, that, in fact:

South Australia's natural resources belong to all South Australians, and every person in this state should share in the prosperity they will bring—now, and into the future. This needs a new approach.

To this end, the government will establish a bipartisan committee to explore the potential for a Future Fund, to ensure that the benefits of a mining boom are shared amongst all South Australians for generations to come.

The development of our mining sector also involves particular obligations to the descendants of the first South Australians.

The government will therefore introduce new legislation to replace the Aboriginal Heritage Act. This will put Aboriginal people at the forefront of decisions about their own cultural heritage, and will give to both the Aboriginal peoples and the mining developers simpler processes and greater certainty.

Around the middle of last century, manufacturing joined agriculture and mining as an intrinsic element of our State's prosperity.

These words were delivered by this government as a sign, apparently, that they had changed their ways from those aforementioned 'decide and defend' models.

I will note that the Aboriginal Heritage Act 1988 has been under review for many years and, in fact, originally, submissions closed on 31 October 2009 for the review of this particular act. So, in announcing that in this year we will finally see a bill to review the current Aboriginal Heritage Act, certainly, I did not think the government was going too far out on a limb, but I will note that we have yet to see a bill that outlines proposed reforms to the Aboriginal Heritage Act.

Yet, by 2009, the government has had submissions made by state government agencies, local governments, Aboriginal organisations, non-government organisations, individuals and also other parties, and it had also conducted quite an extensive process of consultation in person across metropolitan, rural and regional, and remote South Australia.

Of course, if one wants to get a copy of those submissions, they are not easily available on the current website. One has to actually email the department, the Aboriginal Affairs and Reconciliation Division, and I am pleased that when I first started in this place I downloaded those submissions, having thought that that might be a government priority. Having been reassured earlier in the term of this Weatherill incarnation of a Labor government that we are to see a review of the Aboriginal Heritage Act, I am starting to wonder, given the lack of sitting days left before the end of the year, whether that promise will be another broken promise of this government.

What I do draw attention to, though, is the extensive process that has been going on over many years of reviewing the Aboriginal Heritage Act. One imagines that some of these issues have been raised through that process and, certainly, Aboriginal voices have been involved in that process, and one would have thought that those voices would have received more respect in terms of a timelier bill before this place than the current bill we see today that has been rushed before this place on behalf of non-Aboriginal people's interests.

The member for Stuart raised concerns because his constituents in his local electorate had raised concerns with him about this bill. Those concerns were put, I believe, very respectfully to this parliament, but I certainly would say that the minister did not treat those concerns with the respect they deserved. The member for Stuart was simply representing his constituency, and he had a very angry response from some in his constituency, which was, of course, outlined in The Transcontinental newspaper in the member for Stuart's local electorate. It comes out once a week, on Wednesday.

The newspaper notes the honourable member in discussion in the other place where he said that 'a local Arabunna native title chairperson Aaron Stuart criticised the bill'. He there called it 'blue ribbon administrative racism'. I would note that the chairperson, Aaron Stuart, called the bill blue ribbon administrative racism, not the minister. Certainly, at this point, given the lack of consultation, the lack of respect to Aboriginal voices, I am happy also to say that this bill is probably blue ribbon administrative racism—or, given that it is Labor government, red ribbon administrative racism.

I am as dismayed as the Commissioner for Aboriginal Engagement with the process that has brought this bill before us. With respect to that page 4 Transcontinental article of 12 September, I also note the irony noted yesterday by the shadow attorney-general when he said that, directly underneath the article titled 'Bill is administrative racism', there is a government of South Australia public notice titled 'Time for Respect', which outlines that the South Australian government has made a commitment to formally recognise Aboriginal peoples as the first people of South Australia by asking the parliament to amend the South Australian constitution.

An advisory panel has been established by the government to seek the views of the South Australian community, particularly the Aboriginal community, on the wording and form which a statement of recognition in the state's constitution should take. It outlines that the members of the advisory panel will be 'visiting your area to hear your views', and it gives a date of 17 September in Port Augusta, firstly in the Cooinda Hall and also in the Standpipe Motel's chapel room, and it finishes on both those occasions with 'all welcome'.

You can also express your views in writing by 15 September or visit the website, timeforrespect.org.au. An email address and a free phone number are given and there is a website. This is a very different approach but the hypocrisy cannot go unremarked upon. The government in this case is going forth—and I believe commendably—looking at including recognition of the first peoples of this state in our constitution, and can do so in an orderly and properly democratically constituted way where people are duly informed that, in fact, there is an issue being considered by this government and given the chance to voice their opinions on that issue before we see legislation in this place.

I note that in the other place there were several speakers from the opposition benches on this bill, and, almost without exception, they noted that this chamber would probably be seeking more information on this bill. They did not blindly accept the government's assurances that it had no unforeseen consequences, and they did, I guess, with the words of support for the passage of this bill in that chamber, note that it would be in this place that we would see the real debate.

I urge members of the opposition in this place to ensure that we do scrutinise this bill, and that the questions that were asked in the other place that were, in fact, I note, unanswered by the minister in that place, are answered by the minister representing the minister here today.

I note that in speaking to this bill members noted that all parties had assumed for the past 10 years (since the Petroleum and Geothermal Energy Act was enacted) that licences created under early legislation could be renewed without the right to negotiate applying, and it was thought that the specific part of the Native Title Act that allows for such renewals applied. The government has now put before the parliament a bill that seeks to clarify that it did not intend the grant renewal or consolidation of those licences created under earlier legislation or agreements to be subject to the right to negotiate.

The past 10 years is a long time to have assumed; there is obviously a point at which, in the words of the minister in the other place, the state became aware. At what point did the state become aware that, in fact, these issues regarding the right to negotiate were of concern, at least to some parties involved in these processes? Without that information I am not sure that we can accept the words that this is simply a misstep, as was quoted many a time in response to this bill by the minister.

This chamber needs to know why the rush. Why are we rushing this bill through in a matter of days of parliamentary sitting rather than it being given due and proper consideration? Why were Aboriginal groups not spoken to and informed that this bill was coming? What reasonable expectation does the government have that the first peoples of this state will trust the government in other areas if it puts forward a bill like this here today and ride roughshod over the voices of constituents who have every right to have been involved in every step of this debate?

I will leave some concluding remarks to the words of Keith Thomas who said, with regard to this bill and reported on ABC radio on 10 September in an ABC story put together by Nicola Gage, the following:

They haven't gone through the proper process. They've left the negotiation with Aboriginal people out of that process and they've granted the petroleum producers licences. So [what] they want to do now is introduce a bill which retrospectively will ensure that the petroleum sector has those licences.

He goes on to say:

It's certainly a dangerous precedent and its not one that we'd like to see repeated in the future. As I said, it sends a poor message to Aboriginal people that, you know, you might have your rights and interests but the government of the day can change that by introducing legislation.

I note the words of my honourable colleague Mark Parnell that usually the government waits until it loses a court case before it then goes and changes the legislation. While one might jokingly think that perhaps it is just saving time here, in line with that old adage that 'It's better to hate someone on sight because it just saves time', I would hope that the Weatherill government has seen the error of the previous government's way in refusing to negotiate and refusing to consult.

It is certainly not the way any government in Australia should be run—where the voices of those most affected by the decisions this government makes are not only not listened to and heard but are not even considered to be important enough to be asked to have a say. Mr Thomas does have some faith in the government. He concludes by stating:

It just seems out of character in this instance because we have a good working relationship with the Government and then to do something like this really flies in the face of, you know, the things we've been talking about between each other and how we've been working together to resolve Native Title in South Australia.

The advertisement in The Transcontinental newspaper highlights those two different approaches. In one there is a long, considered process where Aboriginal people's voices are being heard; in the other there is a short-term, ill-considered process where this parliament is expected to debate—within a couple of hours and without all groups having been consulted before legislation comes before us—a bill that we do not know all the consequences of, that we cannot possibly know because we have not had the answers from this government and we have not allowed all of the voices to be heard.

With that, I will have questions in the committee stage, and I certainly reiterate that the Greens will be opposing the second reading of this bill. This process has been flawed. This flies in the face of true reconciliation in this state, and I would hope that we will not be seeing such a situation again under the Weatherill government.

The Hon. K.L. VINCENT (12:10): I wish to place on the record my very vehement opposition not necessarily to this bill in and of itself but to the way in which it is being handled by this parliament. Of course, we all know that this bill has only been on our Notice Paper for two and a bit days. Members also know, of course, that it is parliamentary protocol that bills remain on the Notice Paper for at least one sitting week before going to the vote so that we have ample opportunity to contact relevant stakeholders and constituents on issues relating to the legislation and to give them the opportunity to contact us with their concerns. Such communication is, as I am sure no-one would disagree, the linchpin of good legislative development.

I am the last person to defend the existence of protocol for the sake of protocol, and I am sure that our dear Clerk, more than anyone else in this chamber, would be able to testify to my frequent frustration at many of the traditions of this particular place. However, to put it simply, to give us ample time to do our jobs properly is something that makes a lot of sense to me and it is something that, over the course of this speech, I intend to defend as passionately as possible.

It was only yesterday afternoon during my lunch break that I received a briefing from ministerial staff on this bill, and at that time I believed it would be going through the committee stage on that very same day. As it is, I have not had the chance to obtain a briefing from South Australian Native Title Services, a key stakeholder on this issue and, because of this, frankly I do not feel that I am qualified to make the right decision at this point. I do not feel that I have had enough time to get as much information as I should like or that I need, and I also do not feel that I have had enough time to properly absorb that information.

Not only is rushing through this piece of legislation unparliamentary, it is, I think, in direct conflict with one of the major aims of the current Weatherill government. When this government first came into shape, we were told that the days of 'announce and defend' were gone and that they would be replaced with a new 'consult, collaborate and decide' approach. I am fearful, however, that the rapid passage of this bill will be yet another example that this strategy is nothing more than a mirage or, worse still, perhaps this strategy is a bit like my gym membership: I have it and people know that I have it, and those two things make me feel very warm and fuzzy from time to time, but if you are expecting me to actually use it you are probably going to be disappointed.

It is vital at this point that I draw members' attention to the fact that this is not the first time, in my opinion, that this Labor government has attempted to sneak legislation through in this manner, and it would be very remiss of me not to highlight my disappointment at the defeatist attitude the Liberal Party has shown on this issue. I think it is fair to say that we can usually depend on the opposition to assist us in halting the passage of legislation with this undue haste.

I am disappointed, to say the least, to see them let us down as a chamber and as a state in this regard on this occasion, particularly as it is an opportunity for the party to prove to South Australians that it would be unwilling to accept such behaviour should it come into government. Of course, I hasten to add that I know that not every member of the Liberal Party is content with these particular proceedings, but the party machine has spoken and members opposite must act accordingly. While this is something that frustrates me greatly, it is something that I am forced to respect. Of course, nothing is black and white. There are situations in which the rapid passage of legislation may be necessary to prevent significant risk to public health and safety, and these are situations in which I am likely to be willing to allow a breach of protocol without a fuss.

Sorry, I find myself a bit out of sorts physically today and it is making the delivery of the speech quite difficult, which is frustrating because it is a very important one. I am sure Hansard, however, is benefiting no end from my speaking at a much slower pace than usual, so to that end I am happy to proceed, but I just ask for the patience of the council.

I believe that out of respect for the institution of parliament and the people it represents, those situations should be far and few between and I am completely unconvinced that this is one of them. Now I feel it is relevant for me to point out that it is not only contempt of parliamentary process that members are showing by allowing the hasty passage of this bill today. The fact that this legislation will likely pass before a decision is handed down on a court matter, which is directly relevant to this particular piece of legislation, shows, in my opinion, blatant disregard for the vital harmony between the parliamentary and judicial processes.

We are directly interrupting a process in one institution to alter the outcome in another. Why is it that we are doing this? Let us be perfectly honest about that. The government wishes to pass this legislation to avoid an outcome in court which would be embarrassing and undesirable for it. The minister's representatives told me as much when I met with them yesterday afternoon. In other words, this is the government putting its own ego and its wish to save its own backside ahead of performing its duties for the people of this state. I do not believe that those people expect me to simply accept this and so I will not.

There is no doubt in my mind that government members in this chamber today will tell me, as the ministerial representatives did yesterday, that the speedy passage of this legislation is also about avoiding a dip in industry confidence. Yes, to an extent it is possible that this confidence may alter should this legislation not pass quickly, but I feel that there is an argument to be made that the way to instil further confidence of industry into government is that government be open, accountable and upfront with concerned industry members.

Why not just tell them, 'Yes, this may make matters a bit tricky for a while but at least it will provide for long-term stability and consistency in the way in which we approach these issues in the future to avoid getting into this mess again'? I feel this is particularly relevant given that the very reason this bill is before us at this very moment is an historical oversight. I feel that it should act as a warning, if not an irrefutable reason, for us to take time with this legislation. I am fearful that rushing it through will only lead to further oversights and that we will soon be back here again debating it anew.

I suspect that the best way to instil industry confidence is to show that we do our job well, rather than simply being motivated by the idea that industries are watching so we had better look busy. Besides, slumps in industry, consumer and voter confidence are never completely avoidable. Changes to legislation, tax or the state or country's financial situation are all things that can influence this and it is a duty of government to manage this and to show leadership to demonstrate its own confidence. Instead, this government has chosen to put its fears about the possible temporary upset of a relatively small number of people above demonstrating to an entire state that it is going to do the job it was elected to do with the confidence, maturity, dignity and respect that I think the people of this state have the right to expect.

I feel that by allowing the unnecessarily hasty passage of this bill the government has done much more than just ignore this responsibility. Quite frankly, I feel that it has stuck its middle finger up at all the people to whom this responsibility is still important.

As stated earlier, I do not necessarily have direct qualms about the content of the bill itself; I simply feel that I have not had time to ensure that I am completely across the true ramifications of this bill, and, because of that, I feel most uneasy about its passage. I feel that I have been unable to do my job properly and that I have let the people of this state down badly, although, of course, it was not by my choice.

There is little use going into the bill in any detail since the numbers suggest that it will pass quickly and unamended; however, I would like to briefly flag my discomfort with the retrospective nature of the legislation. Unless I am much mistaken, I have already put on record in this place my general philosophical opposition to retrospective legislation as a whole. This is an opposition which I think many, if not most, legal practitioners share.

I cannot help but think of the popular film franchise, Back to the Future. The Attorney-General has fashioned this parliament into a time machine so that he and the Minister for Mineral Resources can go back to 2000 and try to correct their past mistakes. The whole process has been such a complete mess that one can only assume that, like Doc Brown, the Attorney-General must have dreamt up this whole endeavour after slipping and bumping his head on the toilet. The cynic in me wonders whether in the face of so many other disappointments in their mining-fuelled plans for the future they hope that this harebrained scheme will secure them a place in a possible sequel, where this government travels to 2015.

There may well be situations in which I am comfortable with retrospectivity in legislation, and I think the Hon. Mr Parnell has pointed out a few situations where this may well be the case. In any event, it is a conversation I am very willing to have. Unfortunately, it is not one I have had the opportunity to have on this occasion, and so the retrospective nature of the bill still makes me very uncomfortable indeed.

I am willing to debate this bill, but I am willing to do it in the appropriate manner and at the appropriate time. That is categorically not now. I will watch this bill pass in its current form, but I want it known that doing so makes me feel very embarrassed and angry and that at least I did not do so without a fight.

At worst, the passage of this bill this week is unparliamentary, disrespectful and irresponsible. At best, it is perhaps a golden opportunity for the government to truly and honestly reflect on what kind of government it wishes to be now and in the future, and perhaps moreover it is an opportunity for the people of this state to make very clear what it is they will and will not accept from the government.

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (12:24): I would like to thank the honourable members who have contributed to this debate and also indicate my thanks to the opposition for its indication of support for this legislation. I should say that I of course respect the different positions that have been taken by the speakers in this chamber, but I have to respectfully disagree with some of their more colourful claims.

In response to the question about why we are putting this bill through to the chamber today, I have to say that there is no contempt of parliamentary process involved in this. As the Hon. Mr Parnell noted, there are very good reasons at times for parliament to make haste on legislation and stipulated the one that he thinks is most appropriate, and that was—and I am quoting him when I say—'a genuine correction of an error'. That is what we are seeking to do today.

In response to questions raised by the Hon. Tammy Franks in her second reading speech, can I just add that the attention of the government was drawn to this issue by SANTS in July 2011. I understand they raised complex factual and legal issues which had to be investigated and counsel advice was sought. I am advised that over 200 transitional licences may be affected by the provisions in this bill.

I am also advised that the bill is not removing native title rights. Renewals of pre-existing licences do not have to be subject to the right to negotiate and the bill clarifies this. It would be unusual for South Australian licences to be subject to the right to negotiate for renewals when other states' renewals are not subject to this requirement, I am advised. I commend the bill to the house.

The council divided on the second reading:

AYES (16)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Finnigan, B.V. Gazzola, J.M.
Hood, D.G.E. Hunter, I.K. (teller) Kandelaars, G.A.
Lee, J.S. Lensink, J.M.A. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.
NOES (3)
Franks, T.A. Parnell, M. (teller) Vincent, K.L.

Majority of 13 for the ayes.

Second reading thus carried.

Committee Stage

In committee.

Clause 1.

The Hon. M. PARNELL: I move:

That progress be reported.

I made it very clear in my second reading contribution, as did the Hon. Tammy Franks and the Hon. Kelly Vincent, that we are not comfortable will this bill being proceeded with at such haste. We do not believe that the proper process has been followed, as the three of us set out in our second reading contributions.

The committee divided on the motion:

AYES (3)
Franks, T.A. Parnell, M. (teller) Vincent, K.L.
NOES (16)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. (teller) 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.

Majority of 13 for the Noes.

Motion thus negatived.

The Hon. T.A. FRANKS: Unsurprisingly, I ask again, as I did in my second reading speech: which Aboriginal groups or individuals were consulted prior to this bill being drafted?

The Hon. I.K. HUNTER: My advice is that a briefing was offered to SANTS but the offer was declined.

The Hon. T.A. FRANKS: I clarify that my question was: prior to this bill being drafted. The offer to SANTS for a briefing was made after notice of motion was given to this parliament that this bill was, in fact, being presented. Are you telling me that the bill had not been drafted at that point? Is that the case?

The Hon. I.K. HUNTER: My advice is that there was nothing prior to the bill being drafted to consult on. My advice is the matter went to cabinet on one day and was raised with SANTS the following day.

The Hon. T.A. FRANKS: I draw the minister's attention to the fact that, in presenting this bill in the House of Assembly, the Minister for Mineral Resources and Energy noted that the bill went to cabinet in August. Can the minister now clarify on what date SANTS was offered a briefing?

The Hon. I.K. HUNTER: I think I just clarified the point that it was offered a briefing, I understand, the day after it went to cabinet.

The Hon. S.G. WADE: Could the minister clarify that? I thought his original answer was notice was given the day after it went to cabinet. Could I suggest that the government might consider its time frame and give us a considered position in terms of when it went to cabinet, when notice was given, when it was tabled and when the SANTS briefing was offered?

The Hon. I.K. HUNTER: Whilst my advisers are seeking some answers to that question, it may help if I could ask the Hon. Mr Wade whether he has a copy of the email we provided to him which has those dates on it? That email would assist my advisers. Apparently he has taken the only copy—apparently.

To the best of my knowledge, I am advised that a discussion with SANTS occurred on 4 September, and the offer of a briefing was declined subsequently.

The Hon. T.A. FRANKS: I repeat my original question. In your response with regard to answers you gave in the second reading summary, you noted that, in fact, the state had been made aware of this issue by SANTS in 2011. I am going to assume that that was possibly on 28 July 2011, when I understand that Andrew Beckworth wrote to the responsible official within the Department of Primary Industries and Resources—the predecessor agency to DMITRE—asserting that the grant of petroleum production licences PPL 228, PPL 232 and PPL 237 should have conformed with the requirements of part 2, division 3, subdivision P of the Native Title Act 1993 of the commonwealth.

He noted in that letter that these requirements were not observed, and Mr Beckworth concluded that the petroleum production licences PPL 228, PPL 232 and PPL 237 were invalid by reason of section 28(1) of the Native Title Act 1993. That was, I note again and underscore, correspondence from SANTS to this government. My question was: when did the government consult any Aboriginal organisation—but on this particular occasion the South Australian Native Title Services—with regard to this bill before us now prior to notice of motion being given that this bill was to be introduced into this parliament?

The Hon. I.K. HUNTER: My advice has not changed; it is that SANTS was advised on the same day as the bill was tabled.

The Hon. S.G. WADE: I take the opportunity to reiterate a question which was asked by the shadow minister for Aboriginal affairs, the member for Morphett, in another place—it was not answered by the minister in that place—and which encompassed negotiations and discussions post the tabling of the bill. What negotiations and discussions might the government have had with Aboriginal groups and the Commissioner for Aboriginal Engagement to put their minds at rest that this is not going to be a piece of legislation where we see, once again (as we have seen in the distant past), Aboriginal people being given no consideration?

The Hon. I.K. HUNTER: Again, my advice is that the offer of a briefing to SANTS was given and it was declined.

The Hon. S.G. WADE: And there was no invitation for consultation with any other Aboriginal stakeholder, including the Commissioner for Aboriginal Engagement?

The Hon. I.K. HUNTER: Not from the knowledge that I have at hand.

The Hon. T.A. FRANKS: Why did the government not respond to the correspondence of SANTS dated 28 July 2011 (and its follow-up correspondence, I understand, on several occasions between 28 July and February 2012), where it requested that the legal representatives of the state of South Australia provide an indication of progress in responding to the issue raised in that letter of 28 July 2011?

The Hon. I.K. HUNTER: As I am advised, I do not have all the dates of emails but a number of emails went between the Crown Solicitor's Office and SANTS to advise them of factual issues and that counsel's opinion would need to be sought on various matters.

The Hon. T.A. FRANKS: That leads me to my next question which is: on 7 September, after the bill was introduced into this parliament, SANTS received correspondence from the Crown Solicitor's Office advising that its application should be discontinued. When were instructions given to the Crown Solicitor to pursue that course of action?

The Hon. I.K. HUNTER: My advice is that once cabinet decided to proceed, it was decided to allow the parties an opportunity to consider their position in proceedings and by advising them of how the government was determined to proceed.

The Hon. T.A. FRANKS: Just to clarify: was that cabinet decision made in August?

The Hon. I.K. HUNTER: I understand that the cabinet process commenced in August but ended up being on the cabinet agenda for the meeting of 3 September. That is my advice.

The Hon. T.A. FRANKS: The minister indicated that over 200 transitional licences will be affected by this bill. Will the minister name those licences?

The Hon. I.K. HUNTER: I said 'possibly affected', and no, I cannot, at this stage.

The Hon. T.A. FRANKS: So the minister does not have that information to hand.

The Hon. I.K. HUNTER: No, I do not.

The Hon. T.A. FRANKS: Will the government be providing that information to this committee?

The Hon. I.K. HUNTER: I will check and come back to the honourable member.

The Hon. M. PARNELL: The only answer I think the minister gave at the conclusion of the second reading stage of this bill was in relation to the question: when did the government first become aware of the potential problem? I will just get the minister to clarify that I heard his answer correctly, because of course we do have a difficulty here that two of the key stakeholders' acronyms are very similar. We have SANTS and Santos. I think the minister's answer was that it was SANTS (South Australian Native Title Services) and July 2011 was the first the government became aware that there was a potential legal problem in relation to statutory interpretation. Is that correct?

The Hon. I.K. HUNTER: My advice is that that is the date when SANTS wrote to the department raising the issues.

The Hon. M. PARNELL: What does the minister say to the information that I have that there is a string of emails and letters going back to 2010 between SANTS and DMITRE dealing with this very issue? Is the information incorrect? Is there no chain of correspondence, phone calls, emails dealing with this issue that goes back at least a year before the government's nominated date?

The Hon. I.K. HUNTER: My advice is that the honourable member is only partially correct. In fact, the correspondence chain he refers to is not on this specific issue. My advice is that a general letter was sent in October 2010 requesting information. There was subsequently communication between the offices asking for provision of certain factual information. Certain spreadsheets were supplied, I am told, regarding matters relating to the pre 2000 act licences, but they were of a general nature and certainly not in the context we are dealing with now, is my advice, in those earlier pieces of communication.

The Hon. S.G. WADE: Could I just clarify the minister's comments? When he said it was not on this specific issue, is he suggesting that it was not on the issue of Santos licences or it was not on the issue of the correct interpretation of the Petroleum Act 2000?

The Hon. I.K. HUNTER: My advice is it was on the latter.

The Hon. S.G. WADE: So the correspondence was about the correct interpretation of the 2000 act? Perhaps the minister might choose to use a sentence to communicate; it might provide more clarity to the committee.

The Hon. I.K. HUNTER: I understand that the detail of the concerns were raised in correspondence to us in July 2011, but the previous correspondence was preparatory, it went to issues of licences and when they were granted, rather than on the application of transitional provisions.

The Hon. T.A. FRANKS: Why did the government never produce a response to the correspondence of 28 July 2011?

The Hon. I.K. HUNTER: My advice is that on receiving that correspondence the department had to do factual and legal analysis and had to seek advice from counsel, which of course takes a considerable amount of time.

The Hon. T.A. FRANKS: Why, between July 2011 and August 2012, was that advice and that process not able to be undertaken to ensure that that correspondence was responded to in what was, in fact, 13 months?

The Hon. I.K. HUNTER: My advice is that during that period the honourable member mentions proceedings were instituted, I believe in March, so subsequent responses, I suppose, in many ways were driven by that fact.

The CHAIR: I ask honourable members to keep their questions now to the effects that the clauses of the bill would have on people, rather than keeping to questions of correspondence. If they have criticism of the government for not corresponding or for not consulting they should have done so in their second reading contributions.

The Hon. T.A. FRANKS: One did so in one's second reading contribution and one did not get answers.

The CHAIR: Well, that is alright. We are not going to continue on with the consulting, back and forwards information, we are going to get to the nitty-gritty of the clauses in the bill. I am quite happy to take questions on any effect the clauses of the bill will have on individuals, otherwise I intend to put the clauses.

The Hon. T.A. FRANKS: Then can we have an answer to the 200 or so (somewhere about that number) transitional licences that will be affected by this bill?

The CHAIR: Ask questions about the clauses in the bill, but correspondence has no effect on—

The Hon. S.G. Wade interjecting:

The CHAIR: I certainly do not need the help of the Hon. Mr Wade. Question?

The Hon. T.A. FRANKS: I have asked this three times now: what are—

The CHAIR: The minister has answered it three times, I would imagine. I intend to put that clause 1 stand as printed.

The Hon. M. PARNELL: Mr Chairman, I have had one question on clause 1 and I would like to ask more questions of the minister and his advisers.

The CHAIR: Okay. I think we will break for lunch.

Progress reported; committee to sit again.


[Sitting suspended from 13:01 to 14:15]


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