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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-28 Daily Xml
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DEVELOPMENT (PRIVATE CERTIFICATION) AMENDMENT BILL

Committee Stage

In committee (debate resumed).

Clause 1.

The CHAIR: The honourable minister.

The Hon. G.E. GAGO: It is our view that really the only matter that we think this could possibly relate to is that issue of minor variations, and we have already outlined the ways of ensuring that judgements around minor variations are contained within a particular standard.

The Hon. D.W. RIDGWAY: Has the government considered whether there will be a need for the private certifiers to have increased public liability and professional indemnity insurance now that they are doing extra roles, or is it the government's view that they will need extra cover?

The Hon. G.E. GAGO: The department's view is that it does not believe that any additional cover is required and that the existing cover is sufficient. Under the existing arrangements, they are required to have cover against potential deaths, and the view is that that is sufficient. However, the department is happy to receive any advice or feedback from the industry, and review that if the industry determines that there is a need to look at that further.

The Hon. D.W. RIDGWAY: This is my final question, at this stage, Mr Chairman. This relates to the private certifiers as a group, and, in particular, to a select committee that was held in the House of Assembly chaired by minister Rau (who was, I think, probably backbencher Rau at the time and who is now the Minister for Planning), and I think that it is important in the context that now we are given the private certifiers' broader roles. One of the select committee's recommendations which the industry thought would probably have rolled out by the start of this year was a code of practice.

That has been delayed, and the industry would like to know when those select committee recommendations will be implemented. I think that the select committee was conducted in pretty good spirit with a sense of trying to come up with some sensible, workable recommendations. The industry has been a little frustrated that things like a code of practice—which may well help some of the issues I have raised in other questions—have been delayed, and it is very frustrated.

The Hon. G.E. GAGO: I am advised that some of those recommendations have been implemented already, such as, for instance, the employment of the auditor. A number of the recommendations have been delayed as a result of dealing with the bill itself. However, it is the intention that the bulk of the remaining recommendations will be implemented when this bill or act is put in place—perhaps, around early March. The time frame is not certain, but we think about then, next year.

The CHAIR: Before the Hon. Mr Parnell gets onto a series of questions, you are doing contributions one to five because you have the amendment?

The Hon. M. PARNELL: In fact, I will leave that amendment issue until we get to it, because I have actually had the opportunity whilst listening to the Hon. David Ridgway's questions to answer some of my own having had a quick look at the draft regulations.

The Hon. G.E. Gago interjecting:

The Hon. M. PARNELL: There are still some more, though, do not fret. My question for now, though, is: is there anything in this bill or in the regulations that prevents a private certifier from certifying his or her own development?

The Hon. G.E. GAGO: Yes. I have been advised that section 92 covers the issue of conflicts of interest, and also the code of practice covers conflicts of interests.

The Hon. M. PARNELL: I thank the minister for her answer. I do not have section 92 in front of me, but if she could get advice on whether that would also include the situation, for example, where a large scale property developer might have on staff a suitably qualified person who would act as a building rules private certifier and also now a development plan certifier. Is there anything that prevents a property development company employing its own private certifier?

The Hon. G.E. GAGO: I am advised that, in relation to your last example, yes, it would be covered. Section 92 covers circumstances in which a private certifier may not act. Section 92 provides:

(1) A private certifier must not exercise any functions of a private certifier in relation to a development—

(a) if he or she has been involved in any aspect of the planning or design of the development (other than through the provision of preliminary advice of a routine or general nature); or

(b) if he or she has a direct or indirect pecuniary interest in any aspect of the development or any body associated with any aspect of the development; or

(c) if he or she is employed by any person or body associated with any aspect of the development; or

(d) if he or she is excluded from acting pursuant to the regulations.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. M. PARNELL: I move:

Page 6, after line 10—insert:

(1) Section 89—after subsection (2) insert:

(2aa) The regulations may not authorise a private certifier—

(a) to grant a development plan consent unless the consent relates to a proposed development—

(i) that involves a building (or proposed building) that is used (or to be used) solely for residential purposes (or a purpose that is ancillary to such residential purposes); and

(ii) that is a complying development; and

(iii) that falls within a class of development prescribed by the regulations; or

(b) to make a determination under section 35(1b); or

(c) to act in relation to a proposed development that falls within the ambit of section 35 (1c).

The intent of this amendment is to constrain the ability of this government or a future government from expanding the range of matters that can be dealt by private certifiers through regulation. I say at the outset that I do not doubt at all what the minister said in the second reading speech. I refer to those words:

It is the Government's intention to have draft regulations prepared...

Also, the government does not intend to make significant changes to the existing framework for private certification already applying. The minister said elsewhere:

...the Government's intention is to then make a regulation providing for private certification to be available for residential code applications.

I accept that is the government's intention, but the consequence of this bill is that the door is left open for any other type of development ultimately to be brought within the jurisdiction of private certifiers. I can only imagine two examples where a private certifier could not be involved. One would be a major project where the Governor has to make the final decision and the other would be a crown development (a section 49 crown development) or a public infrastructure application, because the minister has to make that decision.

I would have thought that having removed the blanket prohibition against private certifiers giving development plan consent that there is this opportunity now if a government wanted to, for example, make all industrial development subject to private certification or wind farms to be made subject to private certification. In fact, you could pick any form of development you wanted and you would put it in the regulations and private certifiers could deal with it.

The response might well be that such an abuse of process would not survive a disallowance motion in the Legislative Council, and that may well be the case, but if regulations were introduced in the second week of December and they would then operate for several months before the parliament had any chance to disallow them, the disallowance would not be retrospective. It seems to me that rather than us second-guessing and using the disallowance power to deal with future abuse of power, why not make it very clear in this legislation today that we are only talking about a limited role for private certifiers? That, effectively, is in relation to houses—in other words, residential properties—that are complying and where the regulations set out what type of development is included.

If we put that constraint in the legislation, there is no temptation on government to try to fast-track development applications in the future by taking a particular type of development away from the local council and putting it in the hands of private certifiers. So, that is the intent of this amendment. It is basically to future proof the legislation and to make sure that it cannot be abused. I point out that this amendment has absolutely no impact at all on the government's stated intention in relation to this legislation. They have said it is only to apply to residential code matters and nothing in this amendment prevents that from happening, so I urge all honourable members to support this amendment.

The Hon. G.E. GAGO: The government opposes this amendment. The amendment purports to insert a new subsection (2aa) into section 89, which would limit private certification to residential development that is complying. The government's view is that it is best to enable the head power to be broad and to leave matters of limitation to the regulations, a draft copy of which has already been provided to members.

This is also believed to be the best way to avoid unintended limitations that would necessitate further statutory amendment; for example, in relation to limited assessment, the government believes that there could be a case for enabling this to occur if a certifier was appropriately qualified. The government also takes the view that the potential for parliamentary disallowance is an appropriate safeguard against extension of private certification to matters which parliament does not consider would be warranted.

The Hon. D.W. RIDGWAY: I rise to indicate, as I have already informed the Hon. Mark Parnell, that the opposition will not be supporting this amendment. We had some genuine concerns about the limitation to the residential code and what powers may be extended to private certifiers. We asked a range of questions in the House of Assembly, we have had further discussions with industry, and we have also had questions answered here today.

While I think the Hon. Mark Parnell may be technically correct, in that it can be broadened out, I know it is not the intent of the current government. Both the minister in the House of Assembly and the Leader of the Government in this place have made it very clear in their contributions that it will be limited to just the residential code. If I have the good fortune to be minister following the next election, it would be my intention that we do not broaden it beyond what we are discussing here.

If at any point it is broadened, of course the regulations are disallowable, and I am sure that this chamber would only be too happy to disallow them if they felt that they were an unreasonable abuse of the head powers that have been given in the act. So, we will not be supporting the amendment.

The Hon. M. PARNELL: I can see that this amendment will not have the support of the chamber at this time. I just wanted to add that this was a request of both the Planning Institute of Australia (South Australian Division) and also the Local Government Association. But, given the busy workload today, I will not be dividing on this amendment.

Amendment negatived; clause passed.

Clause 7 passed.

New clause 8.

The Hon. M. PARNELL: I move:

Page 6, after line 14—Insert:

8—Amendment of section 97—Duties of private certifiers

(1) Section 97(1)—after paragraph (b) insert:

and

(c) keep at his or her principal place of business a register of—

(i) applications made to the private certifier under this Act; and

(ii) any decisions on such applications that have been made by the private certifier for the purposes of this Act; and

(iii) any other matter prescribed by the regulations; and

(d) make—

(i) the register required under paragraph (c); and

(ii) any technical details, particulars, plans, drawings, specifications or other documents or information considered on an application for a development plan consent or a building rules consent; and

(iii) any notification of a decision given by the private certifier under section 93(b)(i); and

(iv) any other document prescribed by the regulations,

available for inspection by members of the public at the private certifier's principal place of business during his or her normal office hours.

(2) Section 97—after subsection (1) insert:

(1a) In connection with the operation of subsection (1)(d)—

(a) a private certifier is entitled to charge a reasonable fee fixed by the private certifier before allowing a member of the public to conduct an inspection under that subsection; and

(b) a private certifier is not required to make available to a member of the public—

(i) any plans, drawings, specifications or other documents or information if to do so would, in the opinion of the private certifier, unreasonably jeopardise the present or future security of a building; or

(ii) any documents or information that are otherwise excluded from the ambit of subsection (1)(d) by the regulations; and

(c) a private certifier must, after making any decision on an application under this Act, in accordance with any provision made by the regulations, deliver to a relevant authority prescribed by the regulations any plans, drawings, specifications or other documents of a prescribed kind (and then the private certifier is no longer required to make those documents (or any copies of those documents) available to the public under subsection (1)(d)).

This is an amendment of section 97—Duty of private certifiers. The intent of this amendment was to make sure that private certifiers are subject to the same rules in relation to making documentation available to the community as a local council would be if the matter were lodged with the local council.

As we have been considering this, I have had another opportunity to have a look at the draft regulations that have been put forward, and I note that, under the proposed amendment to regulation 15, it says that if an application is lodged with a certifier then that private certifier must forward to the local council a copy of the application and also the base amount of the lodgement fee, and they have to do that within two business days.

Presumably—and the minister can clarify this—that might mean that a member of the public has the same right to access that information at the council as they would have, had the application been lodged originally at the council. It seems to me that this obligation on the private certifier to hand over a copy of the application and the money does not actually go far enough, because we know with these applications that after the original application has been lodged there is lots of correspondence toing and froing, there are modifications of plans and there is a whole range of things that are going to boost the thickness of the file beyond that initial application.

There is nothing that I can see in here which obliges the private certifier to hand over the whole of the file. It is certainly obliged within two days to hand over the initial application and some money but, as for the rest of the file—the correspondence toing and froing, the modified plans—people might think that it goes without saying that of course they would do that, but it strikes me that it is not an obligation on them.

The amendment that I have put forward effectively has two components. The first one is to make sure that the file is handed over to the council ultimately, at which time I do not think the private certifier should be under any further obligation to make documents available to the public. The other amendment I have here is to say that the public can go to the private certifier and access documents in exactly the same way that they could if the application was lodged with the council.

I anticipate the government will say that that is duplication. The council will have it after two days, but my two points are: first of all, they will not necessarily have the whole file and, secondly, it is not clear to me that they would be obliged to make the application available to members of the public for inspection, given that the application was not lodged with them. They simply have a copy that was actually lodged with the private certifier.

Basically, this amendment is to level the playing field. It is to say, if you have a right to go to the council and get copies of documents or look at an application, you should also have the right to go to a private certifier and see those documents or get copies. When the private certifier is finished with it and hands the file over to the council, that is the end of the private certifier's obligation.

It makes sense, of course, because councils have perpetuity. They have perpetual succession, whereas a private certifier might drop dead the next day or might resign from the business. It makes no sense for them to have an ongoing responsibility to maintain these records. The council should be the custodian. That is the intent of this amendment, and I look forward to the council supporting it.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the Hon. Mark Parnell's amendment. I did advise Mr Golding from minister Rau's office yesterday that of the two amendments we would be supporting this one, so the government could be aware in some advance and be prepared for it here today. We think it makes some sense, for the reasons outlined by the Hon. Mark Parnell, especially with the record keeping and the ongoing duty of councils being that the body that will continue to keep records even if they merge, cease to exist or whatever over time. As we have seen, those records will be passed on to whoever the next civil authority is.

I think there is some real merit in making sure that those records are handed on, because everybody in this place will probably have one, two, three, four—or in the case of you, Mr Chair, several—houses in his lifetime. Sometimes you may want to check exactly what happened to them, some of the planning approvals, additions, renovations, or changes, and it is important to have those records where you can easily access them. The opposition thinks having them kept at the local council makes a very sensible amendment.

The Hon. G.E. GAGO: The government opposes this amendment. This amendment duplicates already established provisions in the regulations that relate to maintaining records of development approvals by councils and private certifiers and their inspection by members of the public. The government's draft amendments to the regulations vary these provisions to take account of private certification for the residential code.

Regulation 92 provides for private certifiers to provide certain information to councils as part of the process of certification pursuant to section 93 of the act. Section 93 is being consequentially amended as part of the bill. This includes two copies of plans, drawings, specifications and other documents and information lodged by the applicant, stamped or otherwise endorsed by the private certifier's consent (regulation 92(2)(a)).

Under regulation 98, both councils and private certifiers have obligations to maintain registers relating to their development assessment functions. Councils are required to make this information available to the public for inspection subject to reasonable fee (regulation 98(3)). This is because the council is the authority that issues the formal approval and therefore must maintain the public record of the decisions that have been made. Under current regulation 98(5) private certifiers are required to maintain such records for no less than three years. This enables them to be available for inspection by an auditor for insurance purposes and suchlike.

It would be problematic to enable members of the public to inspect records held by a private certifier as these may contain matters that are commercial-in-confidence, and in any event the actual issuance of the development approval is not done by the certifier but by the council upon receipt of a certificate and supporting documents from a certifier. Moreover, this proposed amendment does not impose any time limit on the period for which certifiers are to keep records.

As drafted, the amendment seems to require a private certifier to maintain the records indefinitely. This would impose a changed cost burden on existing certifiers, which would require further consultation. Further, it would duplicate existing obligations on councils to maintain records. In other words, the amendment would mean that both a council and a private certifier have to maintain essentially the same records. So, for those reasons (and I think they are pretty compelling reasons) the government opposes this amendment and would urge others to oppose it as well and to reconsider their current position.

The Hon. M. PARNELL: I do not accept all the matters the minister spoke of just then. One of the things she said towards the end was that my amendment seemed to be open ended. It is fairly clear to me that I have built in, effectively, a sunset clause in relation to members of the public being able to approach a private certifier for access to documents. My proposed new section 97(1a)(c) states:

a private certifier must, after making any decision on an application...in accordance with any provision made by the regulations, deliver to a relevant authority...any plans, drawings, specifications or other documents of a prescribed kind...

In other words, that is the model: the private certifier hands it over to the council; then it becomes the council's responsibility. If I understood correctly what the minister said earlier in her contribution, I think she suggested that private certifiers were already beholden to the public to make documents available to members of the public on request.

The minister may want to clarify that because my understanding is, from talking to a large number of people who have tried to get documents out of private certifiers—or even private certifiers' documents out of local councils—that they have always been denied. It seems to me that, if what the minister is saying is correct, then the system is falling down because these documents are not available.

The only other thing I would suggest, other than urging members to continue to support this amendment, is that, if the minister felt there was any value in reporting progress and double-checking these points, I am open to that; otherwise, I will just proceed with my amendment.

The Hon. G.E. GAGO: On a point of clarification, could you please point out where the sunset clause is?

The Hon. M. PARNELL: The very final paragraph on the second page of the amendment basically says 'a private certifier must, after making any decision on an application under this Act', so that means when they have finished, when they have done their job, when they have certified—when that has happened If a private certifier never certifies, if they keep their file open forever, yes, there is no sunset there, but I have to say that a private certifier who never issues any certificates is not long for this field of work.

It goes on to say that, having made a decision, which effectively means having issued their certificate, they hand it all over to the local council. I think that reflects what I call a sunset clause and it removes any further obligation they have to the community. If they have additional obligations to maintain records for three years, as I think the minister pointed out, then that is a separate matter, but certainly the public cannot go knocking on the door of a private certifier saying, 'Can we please look at the paperwork?' Once it has been handed over to the council—I think it is regulation 99 or 100, or somewhere around there—there is an obligation on the council to make documents available.

However, I think there is ambiguity because the application will never have been formally lodged with the council. The council holds an application that was lodged by someone else. It might seem semantic, but I just want to make it clear for the purpose of access to information and making sure there is no wriggle room, making sure there is no ability for either councils or private certifiers to deny members of the public access to these important documents. I think this amendment is the way to achieve that.

The Hon. G.E. GAGO: Thank you for your clarification on the sunset clause. We now understand how that works. That was not our understanding, so thank you for clarifying that. In relation to public inspection, public inspection can only occur by councils, and that is because councils issue development approvals and they are the public register of decisions. Auditors can look at private certifier records. So that just clarifies those issues. For the above reasons, the government continues to oppose this amendment.

The Hon. D.W. RIDGWAY: I just want clarification from the minister. The aspect of the amendment that the opposition is most attracted to is the fact that a private certifier is required to hand their records over to the local council in perpetuity, if you like. So, if the private certifier goes out of business, leaves the state, dies, or whatever, that information is held by the municipal body that administers that area. That is the part in the Hon. Mark Parnell's amendment that the opposition is most attracted to. Will that happen under the current government arrangements?

The Hon. G.E. GAGO: I have been advised that, yes, the regulations will provide for that. That will be dealt with quite explicitly in the regulations.

Progress reported; committee to sit again.

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