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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2013.)

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (11:27): I thank honourable members for their contributions to the second reading of this bill. The health and prosperity of all South Australians depends on the health of our environment. The health of our environment is contingent upon our landscapes and our biodiversity also being in good condition. The Native Vegetation Act 1991 has a key role in protecting our environment through controlling the clearance of significant native vegetation in this state and ensuring that, where clearance occurs to support economic development, the loss of biodiversity is offset by a significant environmental benefit.

This bill proposes several amendments to help in achieving this central purpose of protecting our environment. It seeks to increase flexibility in the delivery of significant environmental benefit offsets for vegetation clearance. It proposes to provide more flexibility for the delivery of significant environmental benefit offsets, including providing for offsets to be delivered where they are most needed, including outside of the region of the original clearance and enabling a credit to be registered against future requirements for offsets. The bill seeks to add new expertise to the Native Vegetation Council and update evidentiary provisions to reflect modern technology. It also seeks to clarify that offences constituted under the Native Vegetation Act 1991 lie within the criminal jurisdiction of the Environment, Resources and Development Court.

I note that the Hon. Michelle Lensink MLC has asked a number of questions in her second reading contribution regarding the formula for determining the value of native vegetation. Under the Native Vegetation Act and the Native Vegetation Regulations, authorised clearance of native vegetation in South Australia is generally required to be offset by a significant environmental benefit—for example, under section 28 of the act—although it is not required for a number of regulations, such as clearance for safety purposes. A significant environmental benefit is not defined in the act, it is to the satisfaction of the Native Vegetation Council. The act does, however, specify that the significant environmental benefit may take the form of the establishment and management of vegetation, improved management of native vegetation, protection via a heritage agreement or payment into the Native Vegetation Fund. It is important to note that all moneys paid into the Native Vegetation Fund to meet significant environmental benefit requirements are used to deliver on-ground restoration projects as specified in the act. This is via the Significant Environmental Benefit Grants scheme.

The Native Vegetation Council has determined policies to provide a degree of consistency in determining clearance matters. The Native Vegetation Council has been reviewing the policies relating to significant environmental benefit offsets and the way in which the significant environmental benefit requirement is calculated. This initiative forms the significant environmental benefit metrics review. I can confirm for the Hon. Michelle Lensink that this is indeed not the subject of this legislation. This review is required to improve the consistency of how significant environmental benefit offsets are determined, to provide greater clarity for clearance applicants and delegates of the Native Vegetation Council regarding the process and to ensure that South Australia's native vegetation offsetting approach keeps pace with national and international standards.

A consultation process has been running through 2013 on the significant environmental benefit metrics review. This consultation has been with government stakeholders and peak representative bodies, including environmental non-government organisations, the South Australian Chamber of Mines and Energy, Primary Producers SA and the Local Government Association.

I am advised that it has been generally acknowledged that the current method for calculating payments to the Native Vegetation Fund in place of an on-ground offset is problematic. This policy relies on a formula to determine what the payment into the Native Vegetation Fund should be in lieu of an on-ground offset. The existing formula for a payment in lieu of on-ground work is: the area of the offset multiplied by the local council non-residential land value, added to the clearance area multiplied by $800.

As part of the consultation process a figure of $5,000 per year was proposed to cover the active management of a hectare of native vegetation over a 10-year period, giving a one-off cost of $50,000 per hectare. I am advised that this figure includes components such as the development of an initial management plan, fencing and control of pest plants and animals. I am further advised that the reaction to this figure, which has been put forward as an aid to discussion, has been somewhat mixed.

Taking into consideration the feedback to date, and consistent with the Better Together approach of this government, further consultation will include a series of regional workshops to achieve an understanding of all issues and seek input, suggestions and formal feedback from the relevant stakeholders with the goal of progressing towards an improved system. These workshops will run from November 2013 through to February 2014. They will include local government, the South Australian Chamber of Mines and Energy, DMITRE, Primary Producers SA and Natural Resources Management boards.

No policy decision has been made as yet and that is why the Native Vegetation Council is currently going through a consultation process to seek appropriate feedback and input to developing policy that is practical, acceptable to the community and achieves sustainability for the long term. I am also happy to reconfirm that the bill does not seek to alter the calculation of the significant environmental benefit figure.

In closing, I would like to reiterate that these amendments will strengthen landscape approaches to biodiversity conservation in the state and support economic development by providing improved flexibility for business. I would like to also thank my staff in my department. This has been a bill long in gestation. I have another long-suffering adviser who has been working very closely with this bill: Holly. Well done, and thank you for getting me through this process. I look forward to the bill passing, with some amendments.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.L. BROKENSHIRE: To advise you, Mr Chairman, and my colleagues, the Hon. Ann Bressington has filed some amendments and is unwell. She has sent a message asking if I would take her amendments through for her, so I will do that.

Clause passed.

Clauses 2 to 5 passed.

New clause 5A.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [Lensink–2]—

Page 3, after line 29—After clause 5 insert:

5A—Insertion of section 4A

After section 4 insert:

4A—Interaction with Fire and Emergency Services Act 2005

In the event of an inconsistency between this Act and the Fire and Emergency Services Act 2005, the Fire and Emergency Services Act 2005 will prevail to the extent of the inconsistency.

As honourable members would know from my speech, I indicated that we had a couple of new amendments so there is a second set which is a consolidated set which has been filed. This amendment will insert into the act a new section 4A. The purpose of this is to clarify that if there is inconsistency between the Native Vegetation Act and the Fire and Emergency Services Act, the latter will prevail. This is to ensure that in matters where there may be conflicts between the acts, the safety of human life must take precedence over the preservation of native vegetation.

The Hon. I.K. HUNTER: The government is happy to accept the amendment as it basically outlines the current course that pertains, so for those reasons we accept the amendment.

New clause inserted.

New clause 5A.

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

Amendment No 1 [Bressington–1]—New clause

Page 3, after line 29—Insert:

5A—Insertion of Part 1A

After section 5 insert:

Part 1A—Duty not to increase fire risk

5A—Duty not to increase fire risk

(1) A person who is engaged in the administration, operation or enforcement of this Act must not—

(a) perform a function, or exercise a power, in a manner; or

(b) take action, or require another person to take action,

that would substantially increase the risk or severity of fire on particular land.

(2) Despite section 30 of the Acts Interpretation Act 1915, the mandatory penalty for an offence against subsection (1) is a fine of $5,000.

(3) In proceedings for an offence against subsection (1), it is a defence for the defendant to prove that he or she did not know, and could not reasonably have been expected to have known, that the performance of the function or exercise of the power, or action taken or required, that is the subject of the charge would substantially increase the risk or severity of fire on the relevant land.

(4) The mandatory penalty prescribed by subsection (2) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence.

This amendment puts an overarching duty into the act that native vegetation authorities must not increase the risk or severity of fire on particular land. There is no clarity on what 'particular land' means so I assume it means all land, and it makes it a $5,000 fine offence for heightening the fire risk. There are also defence provisions in the wording.

The Hon. I.K. HUNTER: To assist the committee, I might indicate that the government will be opposing all Bressington amendments and, dependent on what the opposition determines for its position as well, that might save us some time and deliberation. However, in terms of this amendment, the government opposes it, of course.

The government has taken significant steps to mitigate the risk and danger of bushfires at the interface between native vegetation and human activity. There are already requirements in place under the Fire and Emergency Services Act 2005 for landowners and managers to mitigate the risk or occurrence of bushfire on their properties and the amendments made to the Native Vegetation Regulations in 2009, i.e. the introduction of regulation 5A, facilitate a landowner or manager to do so.

The responsibility in managing a property for bushfire risk is not confined to simply removing native vegetation from a property: it is about managing all flammable material, including weeds or non-native species, and this is an issue for determination by those with the relevant expertise, who we suggest is the South Australian Country Fire Service.

The Hon. J.M.A. LENSINK: The Liberal opposition will not be supporting this amendment because we think that the grounds exist that there is a general duty of care not to act in a malicious or negligent manner and therefore this amendment would be redundant, for want of a better word. We also will not be supporting any of the other amendments of the Hon. Ann Bressington, but I think it would be useful to put our comments on the record to provide the honourable member with an explanation at each of those junctures.

The Hon. R.L. BROKENSHIRE: I could not quite hear the minister. Did the minister say that not only would he not be supporting the Bressington amendments but he would not be supporting the Liberals amendments?

The Hon. I.K. HUNTER: No, that is not the case. I have already supported amendments in the name of the Hon. Michelle Lensink, and I will be supporting more. I am just giving an indication to the chamber that none of the Hon. Ann Bressington's amendments will be supported by the government.

The Hon. R.L. BROKENSHIRE: Based on the minister's overview, that everything is in hand when it comes to legislation regarding property owners, including the Crown, cleaning up and protecting their land from the point of view of bushfires, I will just put on the public record that the minister may want to have an urgent talk to his cabinet, because you only have to drive to Port Wakefield or up to Willunga Hill to see two examples of where the government has done diddly squat in bushfire prevention thus far. It all starts in a big way on 1 December.

New clause negatived.

Clause 6.

The Hon. J.M.A. LENSINK: I move:

Amendment No 2 [Lensink–2]—

Page 3, lines 30 to 36—This clause will be opposed

I will just explain this amendment. The Native Vegetation Act obviously falls under the list of acts committed to the Minister for Sustainability, Environment and Conservation. It has quite a degree of independence in that it has the Native Vegetation Council, which is responsible for making decisions and hearing appeals in the first instance.

The act, as I understand it, is currently silent as to whether the minister may intervene in relation to certain matters. The Liberal Party thinks that it is useful for the act to continue to not explicitly outline that the government may not direct the Native Vegetation Council in respect of certain matters. So, for those reasons, I endorse this amendment to the council.

The Hon. I.K. HUNTER: The intent of the new section, which the Hon. Ms Lensink wishes to delete, was to provide the minister with the capacity to set the general direction for the Native Vegetation Council, but would not allow directions to be given in relation to specific decisions, advice or recommendations that the council may make. The government believes that that is a sensible provision; however, I have listened to the concerns of the Hon. Michelle Lensink in our conversations and have decided, on balance, to accept her amendment.

Clause negatived.

Clause 7.

The CHAIR: There are multiple amendments to clause 7, so I am just trying to work through them.

The Hon. I.K. HUNTER: We could make things a little bit easier for the Chair.

The CHAIR: Why didn't you say that in the first place?

The Hon. I.K. HUNTER: I will make a few comments, if I could.

The CHAIR: Minister, make things easier for me.

The Hon. I.K. HUNTER: There are a number of amendments in place to section 8—Membership of the Council. What I will be doing is proposing my amendment, which effectively takes into consideration amendments that the Hon. Michelle Lensink was to move: amendments [Lensink-2] 3 and [Lensink-2] 4. My amendment will incorporate elements of hers, and I hope that they will be acceptable to the Liberals and, therefore, she will not need to move her own. We will be accepting amendment No. 1 from Mr Darley and opposing the amendments in the name of Mr Brokenshire.

The Hon. J.M.A. LENSINK: The minister is correct, and if I could just explain: we had some amendments that were filed previously, and they were to increase the membership of the Native Vegetation Council to include a representative from SACOME. We think it is important that the mining sector has a voice on the Native Vegetation Council, because it is increasingly one of the key stakeholders in this issue. The model I put up was to increase the membership of the Native Vegetation Council from seven to eight.

The minister had an amendment which would substitute a former commonwealth appointment with a person from the development community, and I understand his amendment will incorporate both of those, so it will be one from either/or sector. I still think both deserve some representation, but in the interests of reaching some compromise so that we can progress this bill, we are happy to accept the minister's amendments.

The Hon. R.L. BROKENSHIRE: I hear what the minister is saying. I put on the public record that, whilst each minister has the right to make their own decisions, the former minister did, when the bill was hanging around before (it is quite an old bill), indicate that the government would support my amendment regarding the CFS chief coming on. I ask the minister why he is deciding to approve, rather than the CFS chief, someone from SACOME?

The Hon. J.M.A. Lensink: No, it's not. It's not what I said. You should read his amendment.

The Hon. I.K. Hunter: I'll answer it.

The Hon. R.L. BROKENSHIRE: Alright, if you can answer it, and the second thing, before you get on your feet (as I would hate to think I was getting you up and down all morning): can you explain why the government will not, just from a housekeeping viewpoint, support removing SAFF and putting on PPSA, because SAFF is no longer an organisation—it is now PPSA?

The Hon. I.K. HUNTER: I think I can make the Hon. Mr Brokenshire happy on both counts. I move:

Amendment No 1 [SusEnvCons–4]—

Page 4, lines 1 to 4—Delete clause 7 and substitute:

7—Amendment of section 8—Membership of Council

(1) Section 8(1)(b)—delete 'the South Australian Farmers Federation Incorporated' and substitute:

Primary Producers SA Incorporated

(2) Section 8(1)(f)—delete paragraph (f) and substitute:

(f) 1 must be a person with extensive knowledge of, and experience in, planning, development or mining nominated by the Minister; and

(3) Section 8(3)—delete 'the South Australian Farmers Federation Incorporated' and substitute:

Primary Producers SA Incorporated

This amendment deletes clause 7 of the bill. It does two things: first, it recognises a change from what is now Primary Producers SA Incorporated and updates the act to recognise that change. Secondly, it alters the criteria for replacement of the member of the Native Vegetation Council nominated by the commonwealth government. In 2006 the commonwealth minister for the environment advised the then South Australian minister for environment and conservation that the commonwealth no longer wished to provide a nomination for the Native Vegetation Council. This clause replaces that member with a person with extensive knowledge of and experience in planning, development or mining, as nominated by the minister, with the responsibility for the Native Vegetation Act. This amendment includes mining in the criteria proposed by the bill.

In making this amendment the government has had regard to the amendments proposed by the Hon. Ms Lensink in respect to Native Vegetation Council membership. Planning, development or mining expertise is considered relevant to this policy role of the council, and a significant amount of authorised clearance is a result of development and mining. This clause allows for the nomination of persons from any sector, provided that nominees have the appropriate expertise. The appointment is made by the minister responsible for the act.

In relation to the CFS, we will come to that in again in relation to further amendments from the Hon. Mr Brokenshire. My advice is that the CFS is very comfortable with its observer's position and does not want to be a member of the committee.

The Hon. M. PARNELL: The provisions in section 8 for the membership of the council are a mixture of quasi representation and qualification base. You have a number of bodies that are entitled to nominate panels of people from which the government chooses one that it is happy to go on. That is the situation with what was the farmers federation and will now be primary producers, the Conservation Council, the NRM Council and also the Local Government Association. Those four bodies get to put three names forward, and the minister chooses a person from the list of three.

You then have the clause now being proposed to be replaced, which is a person nominated by the commonwealth minister for the environment. It would come as no surprise to anyone that, even before the change of government, the commonwealth has zero interest in being on this Native Vegetation Council for the state. Given what the federal government is currently doing, in trying to divest itself of all environmental responsibility, I think it is even more the case now than it was when these provisions were first drafted.

Then we get down to the final two positions on the board. The existing paragraph (g) talks about 'a person with extensive knowledge of and experience in the preservation and management of native vegetation nominated by the minister'. Now, that person could be a miner. It could be someone who works for Santos or BHP in their environmental section whose job it is to store topsoil, to make sure that revegetation and rehabilitation programs are undertaken properly or to manage the environmental impact of their exploration activities. The existing (g)—if the minister really wants a miner to be on the Native Vegetation Council—enables it to do it. The Hon. Michelle Lensink's amendment basically particularly identifies mining and seeks to put—

The Hon. J.M.A. Lensink: I won't be moving it.

The Hon. M. PARNELL: No, I know. Sorry, the Hon. Michelle Lensink is not moving hers but I am just trying to work out where we are going with this and what the outcome might be for the composition of the council. The Hon. Michelle Lensink had flagged that a miner would be appropriate. The government's compromise is this new paragraph (f):

1 must be a person with extensive knowledge of, and experience in, planning, development or mining...

They are three potentially unrelated fields and the words are vague enough so that effectively anyone that the government wants to appoint could be appointed. I am not sure we get a whole lot of value out of that.

From the Greens' perspective, we would not have thought that having an identified mining person—they would say it is 'expert'—is of great value to the Native Vegetation Council. We can see that a person with experience in planning, if those skills did not already exist on the council, might add value. Development—again, what does it mean?

It seems to me that in the quest for a compromise we have planners, developers and miners lumped in to a new paragraph (f) with the people under (g) who are people who just have to know a bit about native vegetation anyway. At the end of the day, let's not kid ourselves, the government is going to appoint to this Native Vegetation Council who it wants to appoint, and they will be made to fit into one of these categories without too much grief.

We are not going to oppose the amendment—I can see how it has been developed—but I do want to put on the record that we do not see any particular value in having a nominated mining expert put into the Native Vegetation Council. We do not think that that criteria adds value. That is not to say that there are not people involved in mining who might not be appropriate to put on, but pulling that one out, identifying it as a particular category of expertise I do not think adds value to the council.

The Hon. J.M.A. LENSINK: The honourable member is probably aware of this anyway because I know he understands how to interpret legislation, bills and so forth fairly well. The government has compromised to include mining because the original clause referred to planning and development. I cannot see—and this is probably just a comment probably in response more than anything—how mining is any less legitimate than having primary industries or development on there. There is extensive exploration in areas of the West Coast and Far North and so forth.

I don't want to be political here, Mark, I am sorry, but we know that the Greens will take every opportunity to put roadblocks and difficulties in the way of the mining sector in this state. However, quite frankly, you have to work with industry and it needs to have a place at the table. You cannot just exclude them from things and hope that the state is going to progress. With those comments, I thank the minister for incorporating the compromise.

My interpretation of clause (g) of the membership of the council would be that that person would be more likely, if they are an expert, to be in favour of the retention of native vegetation and understand the complexity of it rather than someone who wants to bulldoze it all.

The Hon. I.K. HUNTER: Chairman, in a further attempt to assist you, I have sought advice on how to proceed with this raft of amendments. I seek leave of the committee to move the amendment in amended form, as follows:

New proposed clause 7(2)—Insert after 'Minister' the words 'after consultation with the Minister for Planning'.

That will bring into effect the amendment in the name of Mr Darley without him needing to move it. And also:

Insert new subclause (4), which reads:

(4) Section 8, after subsection (7)—insert:

(8) In this section 'Minister for Planning' means the minister who has the portfolio responsibility for urban and regional planning within the state.

Thus, in one move, I have incorporated amendments in the name of Ms Lensink and Mr Darley and the government.

The CHAIR: The Hon. Mr Darley, do you accept that?

The Hon. J.A. DARLEY: In view of the minister's comments, I will not be moving my amendment.

The CHAIR: The Hon. Mr Brokenshire, you still have an amendment.

The Hon. R.L. BROKENSHIRE: In view of obviously an arrangement between the two big machines in this chamber on this occasion, similar to NRM where we saw the same thing, I will be withdrawing my amendment and the consequential amendments to save some time.

Amendment as amended carried; clause as amended passed.

Clause 8.

The Hon. R.L. BROKENSHIRE: Amendment No. 2 [Brokenshire-1] is consequential and I have foreshadowed withdrawing anything consequential to my original amendment on the membership of the council. I withdraw anything that is consequential.

Clause passed.

The CHAIR: Hon. Mr Brokenshire, you have a new clause to insert. Can you indicate whether you view that as consequential?

The Hon. R.L. BROKENSHIRE: It is a consequential amendment, I withdraw it.

Clause 9 passed.

Clause 10.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons–1]—

Page 4, after line 28—Insert:

(1a) Section 21(3a)—delete 'section 28(3)(b)(iii)' and substitute 'section 28(3)(b)(ii)(C)'

(1b) Section 21(3a)—delete 'section 28(3)(b)(iia)' and substitute 'section 28(3)(b)(ii)(A)'

These amendments are consequential to the amendments to existing section 28 relating to the third-party significant environment benefit offset amendments and maintain the situation of the retention of the prescribed fee by a body acting under delegation. I note that the Hon. Ms Lensink has proposed an amendment which is exactly the same, [Lensink-2] 5, and so I will be withdrawing this amendment and advise the government will support Ms Lensink's amendment.

Amendment withdrawn.

The Hon. J.M.A. LENSINK: I move:

Amendment No 5 [Lensink–2]—

Page 4, after line 28—After subclause (1) insert:

(1a) Section 21(3a)—delete 'section 28(3)(b)(iii)' and substitute 'section 28(3)(b)(ii)(C)'

(1b) Section 21(3a)—delete 'section 28(3)(b)(iia)' and substitute 'section 28(3)(b)(ii)(A)'

I indicate that they relate to significant environmental benefits in third-party offsets.

Amendment carried; clause as amended passed.

Clause 11.

The Hon. J.M.A. LENSINK: I move:

Amendment No 6 [Lensink–2]—

Page 6, line 3 [clause 11, inserted paragraph (d)]—Delete inserted paragraph (d) and substitute:

(d) clearing vegetation by the process commonly known as a cold burn; and

(e) any other matter required by the regulations.

I indicate that this amendment enables the clearance of vegetation via a process known as cold burns. There has been a lot of discussion in the general community, I think, about the benefit of cold burns, and the Liberal Party believes that they can be a very useful tool not just in the matter of reducing fuel loads but indeed for the benefit of the regeneration of native vegetation.

The Hon. I.K. HUNTER: Clause 11 of the bill relates to the amendment of section 25 of the act, which sets the process for the Native Vegetation Council preparing and adopting guidelines. Clause 11(2) proposes to insert into the act an additional matter on which the council must prepare guidelines and any other matter required by the regulations.

The Hon. Ms Lensink's amendment retains the amendment proposed by the bill but proposes an additional matter: guidelines relating to cold burns. The government is prepared to accept this amendment as a consequential amendment allowing for guidelines for cold burns as it is prepared to accept part of Ms Lensink's later amendment [Lensink-2] 7, where that amendment also relates to cold burns.

The Hon. R.L. BROKENSHIRE: In relation to these two amendments, I indicate that, relative to all the discussion I have had in this house over a period of time, Family First supports anything to initiate more cold burn opportunities to reduce fuel load. I also place on the public record that this bill has been around for a long time, but at 8.42 this morning the government, having being alerted to the fact after we tabled our amendment that, from a drafting point of view, SAFA has been changed to PPSA, put forward an amendment. I put it on the record that it has been a bit of slack work on the government's behalf when it comes to this.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Amendment No 2 [SusEnvCons-4]—

Page 6, after line 6—After subclause (3) insert:

(4) Section 25(2)(f)—delete 'the South Australian Farmers Federation Incorporated' and substitute:

Primary Producers SA Incorporated

This further amendment is necessitated by the change from the South Australian Farmers Federation to Primary Producers SA Incorporated. Section 25 of the act sets the process for the Native Vegetation Council preparing and adopting guidelines under the act. One of those criteria is providing the draft guidelines to the South Australian Farmers Federation. This amendment changes that reference to refer to Primary Producers SA Incorporated.

Amendment carried; clause as amended passed.

New clause 11A.

The Hon. I.K. HUNTER: I move:

Amendment No 2 [SusEnvCons–1]—

Page 6, after line 6—Insert:

11A—Insertion of Part 4A

After section 25 insert:

Part 4A—Credit, assignment and third party establishment of environmental benefits

25A—Credit for environmental benefits

(1) If—

(a) a person—

(i) has achieved an environmental benefit (not being a benefit required in relation to a consent to clear native vegetation or under any other requirement under this Act); or

(ii) has, in accordance with a consent to clear native vegetation, achieved an environmental benefit that exceeds the value of the minimum benefit needed to offset the loss of the cleared vegetation; and

(b) the Council is satisfied that the benefit or excess benefit (as the case requires) is of a significant value,

the Council may, for the purposes of this Act—

(c) credit the person with having achieved an environmental benefit of a value determined by the Council (whether monetary or otherwise); and

(d) take into account and apply the value of the credit (adjusted to reflect the value, in the Council's opinion, of the native vegetation the subject of the credit at the time it is so applied) to—

(i) an amount of environmental benefit the person must achieve; or

(ii) an amount of compensation proposed to be paid into the Fund under section 28(4); or

(iii) an amount to be paid into the Fund under any other provision of this Act as an alternative to achieving an environmental benefit.

(2) In determining the value of an excess benefit contemplated by subsection (1)(a)(ii), the Council must have regard to the approximate difference between the value of the environmental benefit achieved by the person and the value of the environmental benefit that would, in the Council's opinion, have been the minimum the person would have been required to achieve in the circumstances.

25B—Assignment of credit

(1) Subject to this section, a person credited under section 25A with having achieved an environmental benefit (the assignor) may, with the written approval of the Council, assign the whole or part of the credit to another person or body (the assignee).

(2) An application for approval under subsection (1)—

(a) must be made in a manner and form determined by the Council; and

(b) must be accompanied by such information as the Council may reasonably require; and

(c) must be accompanied by the prescribed fee.

(3) The Council must not give its approval under subsection (1) unless the assignor has complied with any requirement of the Council to do 1 or more of the following:

(a) enter into a heritage agreement in respect of the native vegetation that is the subject of the credit to be assigned;

(b) enter into a management agreement under section 25D in respect of the native vegetation that is the subject of the credit to be assigned.

(4) Before giving its approval under subsection (1), the Council must have regard to any Regional Biodiversity Plan or Plans approved by the Minister that apply within any region relevant to the application.

(5) An approval may be conditional or unconditional.

(6) A condition of an approval is binding on, and enforceable against—

(a) the assignor; and

(b) all owners and occupiers, and subsequent owners and occupiers, of the land on which the native vegetation that is the subject of the assigned credit is growing or situated.

(7) The Council may, by notice in writing, vary or revoke a condition of an approval.

(8) An approval remains in force for the period specified by the Council in the approval, or for such longer period as the Council may fix on application by the assignor or assignee.

(9) The Council must inform the Registrar-General in writing of all conditions imposed under this section that relate to land and must provide the Registrar-General with such further information as the Registrar-General requires to comply with subsection (10).

(10) The Registrar-General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land.

(11) The Registrar-General must, on the application of the Council after the variation or revocation of a condition under this section, vary or cancel a note under subsection (10) (but must otherwise ensure that the note is not removed once made).

(12) For the purposes of this Act—

(a) credit assigned under this section will be taken to be credit of the assignee;

(b) an assignment of credit that contravenes this section is, unless the Council determines otherwise, void and of no effect.

25C—Achievement of environmental benefit by accredited third party provider

(1) Subject to this section, a requirement under this Act that an environmental benefit be achieved by a person (the proponent) may, with the written approval of the Council, be satisfied by means of the achievement of the environmental benefit by an accredited third party provider.

(2) An application for approval under subsection (1)—

(a) must be made in a manner and form determined by the Council; and

(b) must be accompanied by such information as the Council may reasonably require; and

(c) must be accompanied by the prescribed fee.

(3) The Council must not give its approval under subsection (1) unless the accredited third party provider—

(a) has entered into a management agreement under section 25D in respect of the native vegetation comprising the environmental benefit; and

(b) has complied with any other requirements prescribed by the regulations for the purposes of this section.

(4) Before giving its approval under subsection (1), the Council must have regard to any Regional Biodiversity Plan or Plans approved by the Minister that apply within any region relevant to the application.

(5) An approval may be conditional or unconditional.

(6) A condition of an approval is binding on, and enforceable against—

(a) the accredited third party provider; and

(b) all owners and occupiers, and subsequent owners and occupiers, of the land on which the native vegetation comprising the environmental benefit is growing or situated.

(7) The Council may, by notice in writing, vary or revoke a condition of an approval.

(8) An approval remains in force for the period specified by the Council in the approval, or for such longer period as the Council may fix on application by the proponent or provider.

(9) The Council must inform the Registrar-General in writing of all conditions imposed under this section that relate to land and must provide the Registrar-General with such further information as the Registrar-General requires to comply with subsection (10).

(10) The Registrar-General must note the conditions against the relevant instrument of title for the land or, in the case of land not under the Real Property Act 1886, against the land.

(11) The Registrar-General must, on the application of the Council after the variation or revocation of a condition under this section, vary or cancel a note under subsection (10) (but must otherwise ensure that the note is not removed once made).

(12) In this section—

accredited third party provider means a person or body accredited for the purposes of this section in accordance with the regulations.

25D—Management agreements

(1) The Minister may enter into a management agreement with—

(a) an assignor of credit under section 25B; or

(b) an accredited third party provider of an environmental benefit under section 25C.

(2) A management agreement may contain such provisions for the management of the relevant native vegetation as the Minister thinks fit, including (without limiting the generality of this subsection)—

(a) requiring specified work or work of a specified kind to be carried out in accordance with specified standards on the land on which the relevant native vegetation is growing or situated (the subject land); and

(b) restricting the nature of work or other activities that may be carried out on the subject land.

(3) A management agreement attaches to the subject land and is binding on the current owner of the subject land whether or not that owner was the person with whom the agreement was made.

(4) The Minister may, by agreement with the owner of the subject land to which a management agreement applies, vary or terminate the agreement.

(5) A management agreement is, to the extent specified in the agreement, binding on the occupier of the subject land.

(6) The Minister must not enter into, vary or terminate a management agreement under this section without first consulting and obtaining the approval of the Council.

(7) If the Minister enters into a management agreement, or an agreement varying or terminating a management agreement, the Registrar-General must, on application by the Minister, note the agreement against the relevant instrument of title or, in the case of subject land not under the Real Property Act 1886, against the land (and, subject to an appropriate application under this subsection, must ensure that the note is not removed once made).

(8) In this section—

relevant native vegetation means the native vegetation that is the subject of credit assigned under section 25B or that comprises the environmental benefit achieved, or to be achieved, by the accredited third party provider under section 25C (as the case requires).

25E—Register

(1) The Council must keep a register for the purposes of this Part.

(2) The register must contain the information required by the regulations in relation to—

(a) each credit under section 25A; and

(b) each application of credit toward the matters contemplated by section 25A(1)(d); and

(c) each assignment of credit under section 25B; and

(d) each achievement of an environmental benefit by accredited third party provider under section 25C; and

(e) each management agreement under section 25D,

and may contain any other information the Council thinks fit.

(3) The register must be kept available for public inspection, without fee, at the office of the Council during ordinary office hours.

I might at this stage put on the record part of a discussion I have had with the opposition on a set of amendments that flow through on this topic. They are largely similar. The two versions in the name of Hunter and Lensink are the same in terms of both contemplating the assignment of credit and the establishment and use of third parties. The subject matter is essentially the same; however, they are drafted slightly differently and there are additional inserts in the government's set of amendments which are not picked up by the Hon. Ms Lensink's amendments.

Essentially, the government's amendments put into legislation a number of things which the Hon. Ms Lensink is proposing to leave to regulation. I think that we have arrived at a position in discussion. The Hon. Ms Lensink can confirm that for her party herself, but the government will be progressing with its amendments instead of her amendments.

The Hon. J.M.A. LENSINK: I am pleased that the government has adopted a third-party offset scheme, which was absent from previous iterations of the bill. I agree with the minister that in some ways this is six of one, half a dozen of the other. As I said in my second reading contribution, I think it really is early days in terms of these third-party offset schemes and there may well be tweaks that need to be made to the legislation. It remains my preference that it be a process adopted through regulation and I have concerns that some of the conditions that are in the government's proposal may well form extra green tape. In the interest of progressing the debate I am happy to concede, but I indicate that there may be problems with this approach.

The Hon. I.K. HUNTER: I need to read something onto the record. This amendment is the substance of the government's third-party significant environmental benefit offset scheme. As members would be aware, the act provides that, for most clearance, a significant environmental benefit offset is required.

The intent of the government's third-party significant environmental benefit offset scheme is to provide increased flexibility and improved environmental outcomes. In doing so, the government has considered the commonwealth government's position, the schemes operating in Victoria and New South Wales, and stakeholder input. Based on that, the government's scheme is intended not only to provide increased flexibility and improved environmental outcomes but also to provide for transparency. This is, essentially, why the government proposal provides for management plans and a credit register in addition to the establishment of credit, its transfer and the use of third parties in the legislation.

There are five proposed new sections to the act under this amendment, which we will get to eventually. I will address each of them in turn. This amendment relates to new section 25A, credit for environmental benefits. This amendment provides for the establishment and use of credit. Under the existing Native Vegetation Act, there is commonly a requirement to provide an offset for the clearance undertaken. This is referred to as significant environmental benefit.

The significant environmental benefit can be on ground or it can be payment into a Native Vegetation Fund. This section provides for the establishment of a native vegetation credit, as recognised by the Native Vegetation Council, either through the provision of a significant environmental benefit where there is no obligation to do so or through the provision of environmental benefit which is more than is required in the given instance.

This proposed section also allows a person with native vegetation credit to apply to an environmental benefit offset that they are required to provide under the act, subject to Native Vegetation Council approval. Under proposed new section 25A(1)(d)(i) to (iii), the credit could be used to meet or reduce a person's new significant environmental benefit obligation or reduce the amount of payment into the Native Vegetation Fund through utilising the credit to partially meet the obligation.

New clause inserted.

Clause 12 passed.

New clause 12A.

The CHAIR: We have a number of amendments to insert new clauses. Minister, if you can assist the committee.

The Hon. I.K. HUNTER: I will do my best. I move:

Amendment No 3 [SusEnvCons–1]—

Page 6, after line 15—Insert:

12A—Amendment of section 27—Clearance of native vegetation

(1) Section 27(5)—delete ''or a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act' and substitute:

, a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act or a management agreement under section 25D

(2) Section 27(5)(b)—delete 'a heritage agreement' and substitute 'such an agreement'

Section 27 of the act sets out the basis on which native vegetation may be cleared under the act. The particular section referred to restricts the clearance of land the subject of a heritage agreement unless the minister agrees or the clearance is subject to an exemption contained in the regulations which specifically apply to heritage agreements. This amendment is a consequential amendment related to the government's third party significant environmental benefit offsets scheme. It extends the restrictions to include management agreements so that land the subject of a heritage agreement or a management agreement cannot be cleared without the minister's approval or an exemption in the regulations that specifically applies to heritage agreements or management agreements.

The Hon. J.M.A. LENSINK: I move:

Amendment No 7 [Lensink–2]—

Page 6, after line 15—After clause 12 insert:

12A—Amendment of section 27—Clearance of native vegetation

(1) Section 27(1)—after paragraph (b) insert:

(c) native vegetation may, subject to subsection (5)(c), be cleared without any other restriction under this Act if the clearance falls within the ambit of subsection (4a).

(2) Section 27—after subsection (4) insert:

(4a) The clearance of native vegetation falls within the ambit of this subsection if—

(a) the clearance occurs on pastoral land and is for the purposes of grazing stock, constructing a dam or providing watering points for stock; or

(b) the clearance occurs on pastoral land and is for the purpose of reestablishing land for cropping purposes after a break not exceeding 15 years; or

(c) the clearance—

(i) occurs on land situated within the area of a rural council; and

(ii) is undertaken—

(A) by the rural council in whose area the clearance occurs; or

(B) in accordance with a written approval granted by that rural council; and

(iii) is reasonably required for fire-control purposes and involves—

(A) the construction of fire breaks not exceeding 20 metres in width; or

(B) the construction of vehicular tracks not exceeding 15 metres in width to enable or aid access to particular areas; or

(C) the reduction of the fuel-load on land between 1 March and 31 October in any year; or

(d) the clearance occurs in the course of clearing vegetation by the process commonly known as a cold burn (being a cold burn conducted in accordance with any relevant guidelines adopted by the Council under section 25); or

(e) the clearance is authorised by the relevant Chief Officer under subsection (4b).

(4b) The relevant Chief Officer may authorise the clearance of native vegetation under this subsection if the Chief Officer considers—

(a) that the clearance is reasonably necessary and appropriate for the purpose of protecting the life, health or safety of any person from a serious risk of bushfire after taking into account any guidelines developed by the Council after consultation with the Chief Officer of SACFS and the Chief Officer of SAMFS; and

(b) that it is appropriate to proceed under this subsection rather than the other provisions of this Act due to the circumstances of the particular case.

(4c) A Chief Officer may—

(a) give an authorisation under subsection (4b) subject to such conditions (if any) as the Chief Officer thinks fit to impose; and

(b) vary or revoke an authorisation under subsection (4b) due to a change in circumstances.

(4d) A Chief Officer may only delegate a power under subsection (4b) or (4c) to a Deputy Chief Officer or Assistant Chief Officer of the relevant service.

(3) Section 27(5)—after paragraph (b) insert:

(c) under subsection (1)(c) unless the Minister has given his or her consent to the clearance.

(4) Section 27—after subsection (6) insert:

(7) In this section—

Chief Officer means a Chief Officer of SACFS or a Chief Officer of SAMFS (as the case requires) and includes a person for the time being acting in the relevant office;

fire-control purposes—these are purposes associated with preventing or controlling the spread of fires or potential fires;

relevant Chief Officer, in relation to an authorisation under subsection (4b), means—

(a) if the relevant land is in a fire district established for the purposes of SAMFS—the Chief Officer of SAMFS;

(b) in any other case—the Chief Officer of SACFS;

rural council has the same meaning as in the Fire and Emergency Services Act 2005;

SACFS means the South Australian Country Fire Service;

SAMFS means the South Australian Metropolitan Fire Service.

This is a combination of amendments which have been a longstanding policy, sometimes referred to as the Gunn clauses (as in the former member for Stuart, Mr Graham Gunn). What this amendment does is section 27 of the act provides some instances where native vegetation may be cleared, and these circumstances are outlined in new subsection (4a): if it occurs on pastoral land and is for the purposes of grazing stock, constructing a dam or providing watering points for stock; if the clearance occurs on pastoral land and is for the purpose of re-establishing land for cropping after 15 years; and if the clearance occurs on land within a rural council which is undertaken by the rural council for fire control purposes with the approval of the CFS through the process of a cold burn, then it may take place.

If I can just explain the pastoral amendments. I think the rural council ones are self-explanatory. These, in our view, provide positive environmental benefits because they respect the fact that land in pastoral countries is often not as productive. The vegetation can grow quite slowly, you get longer periods of extended droughts, therefore, it enables the land to be rested for longer periods. Whereas, under the current circumstances there may be considerable pressure on pastoralists so that they comply with the rules, which would force them to reintroduce grazing or undertaking cropping, which I might add is quite rare in those parts of the state, but they may feel some pressure to undertake that sooner and therefore would put more pressure on the native vegetation. With those comments, I endorse the amendment to the council.

The Hon. I.K. HUNTER: Our advisers are working on a form of words for me to move my amendment which I have just moved in a slightly different way, with the leave of the council, which will accept some of the amendments that the Hon. Michelle Lensink has proposed, but not accept others. The government agrees to part of this amendment and opposes those provisions which are to be set out in my amendment. The amendment proposed by the Hon. Michelle Lensink is to deal with clearance on pastoral land for the grazing of stock, the watering of stock, to allow cropping on pastoral properties and clearance for fire control purposes. There are a number of issues here, and I will break them down individually.

Clearance on pastoral land for watering points is already catered to under the act and regulations. Clearance for a dam in the pastoral regions is covered by regulatory exemption 5(1)(ja). Clearance for the grazing of stock, which is a consequence of additional watering points in the pastoral region, is covered by regulatory exemption 5(1)(zh). I note that this exemption, if applied in pastoral lands, also requires the approval of the Pastoral Board. The council at this time is seeking comment on a potential guideline in relation to pastoral watering points. The council, working cooperatively with the Pastoral Board, has the responsibility of the administration of pastoral leases, including the number and type of stock to be run.

This provides a productive and sustainable pastoral management program. Allowing unfettered installation of water points could result in clearance by grazing on existing remnant native vegetation on pastoral leases which would mean not only the loss of that vegetation but also the reduction and sustainability of pastoral leases. What is sought is appropriate management of pastoral leases and the existing system provides for that, we contend.

Clearance for the purpose of cropping on pastoral land would require the consent of the Pastoral Board and its consideration of the Pastoral Land Management and Conservation Act 1989. Under that act the 'pastoral land' means land comprised in a pastoral lease. A 'pastoral lease' means a lease granted under that act over crown land for pastoral purposes. 'Pastoral purposes' means the pasturing of stock and other ancillary purposes.

Unless cropping is considered to be ancillary to the pasturing of stock, the Pastoral Land Management and Conservation Act would need to be amended to allow for cropping if this proposed amendment were passed. I note that the pastoral lands are not ordinarily suitable for cropping. If a pastoralist wanted to rest a paddock, then that can be done now under the existing legislative scheme either for 10 years without any native vegetation approvals or for longer with an approved management plan. There is no need to amend the legislation which caters well to the existing requirements and provides for appropriate environmental management as part of ensuring the industry remains sustainable.

For these reasons the government is opposed to the amendment as it is proposed by the Hon. Michelle Lensink in relation to pastoral lands. It is so repugnant to the government that, should this amendment be successful, I will be withdrawing the bill completely and I would encourage the council to consider very carefully my subsequent amendment to this which would accept a large amount of her amendments but remove those that relate to the pastoral lands.

In relation to fire, clearance for fire control purposes is addressed by the existing legislation. In 2009 this government amended the Native Vegetation Regulations to provide simple and local approval where necessary by the recognised authority in bushfire control, the South Australian Country Fire Service. The intent and effect of these changes was to make the protection of human life and property paramount. Under the existing scheme landholders can clear native vegetation up to 20 metres around a house without any consent and up to five metres around a shed or similar structure without consent. Clearance beyond the 20 metres and five metres is possible with the approval of the South Australian Country Fire Service who decide based on risk to life and property.

Native vegetation can be cleared to reduce combustible material with the approval of the South Australian Country Fire Service or under a bushfire prevention plan. Native vegetation can be cleared at the direction of the South Australian Country Fire Service in an emergency. Native vegetation can be cleared if it is for purposes of a fire access track up to 15 metres in width and as approved by the South Australian Country Fire Service. Native vegetation can be cleared for fuel breaks as approved by the South Australian Country Fire Service or as authorised by a bushfire prevention plan.

These provisions also apply to heritage agreements. The legislation applies to both publicly and privately held land, whether for conservation or not. The regulations provide for necessary clearance associated with bushfire prevention plans which include asset protection such as roads. Bushfire plans operate at a regional level, not just at local council level, and address regional risks and options in a considered and coherent fashion. The approach is a whole-of-government approach to planning, including local government. The government is prepared to accept the honourable member's amendment where it enhances the ability to manage native vegetation by the South Australian Country Fire Service.

In relation to cold burns, this amendment also refers to the process known as cold burns. Cold burns can be used for either fuel reduction or for ecological purposes. In either case they need to be planned and managed to minimise the life and property risk and to take into consideration environmental outcomes. If such burns were commonly occurring, they would result in clearance of both native vegetation and habitat through the repeated process and through removing such areas from the definition of 'intact stratum' in the act.

In this respect, I advise that the Native Vegetation Council has recently released a guideline of burning for ecological purposes on an interim basis and is finalising the guideline with respect to the comments received as part of the consultation process. I note that under the existing legislative scheme a cold burn could be performed with either the consent of the South Australian Country Fire Service or as approved or required under a bushfire plan. The government also accept this portion of the honourable member's amendment, noting that adequate support and controls are in place via the guidelines and the South Australian Country Fire Service approval. I will have a few more words momentarily.

In the first instance, I seek leave to withdraw my amendment. The Hon. Ms Lensink has moved her new clause and I will now move a series of amendments. I move my amendment No. 3 in an amended form:

Amendment No 1 [SusEnvCons–3]—Amendment to Amendment No 7 [Lensink—2]—

New clause 12A, page 6, after line 15—

Delete paragraphs (a), (b) and (c) of inserted subsection (4a) in clause 12A(2)

Amendment No 1A [SusEnvCons–3]—

(2a) Section 27(5)—delete 'or a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act' and substitute:

, a heritage agreement that was entered into in compliance with a condition of consent to clear native vegetation under the repealed Act or a management agreement under section 25D

(2b) Section 27(5)(b)—delete 'a heritage agreement' and substitute:

such an agreement

Amendment No 2 [SusEnvCons–3]—Amendment to Amendment No 7 [Lensink—2]—

New clause 12A, page 6, after line 15—Delete clause 12A(3)

Amendment No 3 [SusEnvCons–3]—Amendment to Amendment No 7 [Lensink—2]—

New clause 12A, page 6, after line 15—

Delete the definition of rural council from inserted subsection (7) in clause 12A(4)

In effect, I am advised that what I am doing is accepting a number of provisions in the Hon. Michelle Lensink's amendment, which I outlined in my contribution, and adding in some further clauses that need to be added in.

The Hon. J.M.A. LENSINK: I note the comments of the minister that sections of this were repugnant to him and would cause him to withdraw the bill, something that in the vernacular is known as a deal-breaker, and, on that basis I will accept his amendments. However, I have some comments—and I did refer to this in my second reading contribution. There certainly are problems with the legal framework for native vegetation: some parts are in the act and some parts are in the regulations, which are really hard to read, and some of it is done through guidelines. I take on board the previous comments from the Hon. Rob Brokenshire that further reform is needed of this legislation. These are particular issues that a Liberal government, if elected next year, will revisit, but in the interests of not stopping all of the useful things which are provided in the bill, we will accept the minister's amendment.

The CHAIR: The Hon. Mr Brokenshire, do you have an amendment?

The Hon. R.L. BROKENSHIRE: Sir, I have a number of amendments to this clause. I believe they are multifaceted and perhaps it would be best to move 1 to 4 in subparagraphs.

The CHAIR: We are dealing with [Brokenshire-1] 4, which seeks to insert a new clause, which is what we are doing anyway.

The Hon. R.L. BROKENSHIRE: Based on what has been said, with your guidance, I may withdraw that. I think from what the minister and the shadow minister have said, until we get to the amendment which I have as (c)—which is to do with the clearance undertaken on behalf of a local council for road safety purposes—and I am able to do that with your indulgence, I will withdraw the earlier amendment based on what has been debated in the chamber.

The CHAIR: The Hon. Mr Brokenshire, my understanding is that you will not be moving [Brokenshire-1] 4.

The Hon. R.L. BROKENSHIRE: There is a bit of on-the-run stuff occurring here with what the government has been doing, and I accept that that is not unprecedented. What I am trying to do to help the debate is accept that the government and the opposition have an arrangement with what the minister and shadow minister have just said, but, with [Brokenshire-1] 4 standing in my name, I still want to move the particular part of the amendment under 12A(2c), which is to do with the clearance being undertaken by or on behalf of a local council and which is reasonably required for road safety purposes.

The Hon. I.K. HUNTER: The Hon. Mr Brokenshire's amendment is in many situations similar to the Hon. Michelle Lensink's. Again, we will oppose it for the same reasons and, to use the vernacular, this will be a deal-breaker for us as well.

The Hon. R.L. BROKENSHIRE: Just as a point of qualification, so that the minister gets a chance to qualify this for at least myself, I think you say this would be a deal-breaker. Are you saying that, if this were to get up in the house, you would pull the bill?

The Hon. I.K. HUNTER: Absolutely. The government has been quite clear: the government opposes the amendment. The amendment proposes to deal with clearance on pastoral lands for the grazing of stock, watering of stock on pastoral properties, clearance for fire control purposes and for road safety purposes. I have already commented in regard to those issues on the last amendment, in relation to pastoral properties and fire, so I will not repeat it at length here. There are other aspects to be taken into consideration in the Hon. Mr Brokenshire's amendment dealing with road safety and other issues but, for all the reasons I have outlined previously, this is not an amendment we can see succeed.

The Hon. R.L. BROKENSHIRE: I would ask that the shadow minister advise whether the opposition is prepared to accept this particular part of the amendment regarding road safety.

The Hon. J.M.A. LENSINK: As I stated in my previous contribution, I understand Family First's frustration with a number of aspects of native vegetation. I can assure the honourable member that they are the same issues that we hear very regularly, but we are not prepared to put at risk the entire bill for the sake of one amendment.

The Hon. R.L. BROKENSHIRE: I advise the house that, for expediency, I will have no choice but to assist the house with the passage of work today by not insisting on my amendments, but I place on the public record my extreme disappointment with the government on this in particular. The reason is that too many people are killed in country South Australia because of trees in inappropriate places with respect to where roads have been constructed.

Councils have said to me time and again that the absurd cost, the outrageous cost, the government now puts on councils to either pay in financial contribution or find other land and plant trees on them to offset is actually stopping councils now from taking down trees they have identified as being a potential fatality risk in their district. All I was simply trying to do was get some sort of common sense back into this and some realistic opportunity to save lives.

I am bitterly disappointed that the government actually threatens to pull the bill on this house simply because I wanted to put up one important amendment. I can do no more. The numbers I can read, but at least I have it on the public record, and I hope, trust and pray that it does not happen, but I have been doing enough myself over the years, and I will be raising this every time I get an opportunity if there is a serious injury or fatality in the future in this state because the government should have supported these amendments.

The CHAIR: The question is that the amendments moved by the Minister for Sustainability, Environment and Conservation to new clause 12A as proposed to be inserted by the Hon. J.M.A. Lensink be agreed to.

Amendments carried; new clause as amended inserted.

Clause 13.

The Hon. I.K. HUNTER: I move:

Amendment No 4 [SusEnvCons–1]—

Page 6, lines 16 to 34—Delete clause 13 and substitute:

13—Amendment of section 28—Application for consent

(1) Section 28(3)(b)—delete paragraph (b) and substitute:

(b) must be accompanied by—

(i) —

(A) if an environmental benefit required under this Act is to be satisfied by the application of a credit under section 25A—

if the credit has been assigned in accordance with section 25B—a management agreement prepared under section 25D; and

in any case—

information that establishes that the applicant has been credited, in accordance with section 25A or 25B, with having achieved an environmental benefit of a particular value; and

information that establishes that the environmental benefit the subject of the credit amounts, after allowing for the loss of the vegetation to be cleared, to a significant environmental benefit; or

(B) if an environmental benefit required under this Act has been, or is to be, achieved by an accredited third party provider in accordance with section 25C—

a management agreement prepared under section 25D; and

information that establishes that the environmental benefit achieved, or to be achieved, by the accredited third party provider will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(C) if an environmental benefit required under this Act is to be achieved in any other way—

a native vegetation management plan prepared by the applicant in accordance with guidelines adopted by the Council under Part 4; and

information that establishes that subsequent establishment, regeneration or maintenance of native vegetation (whether on the land after the proposed clearance or on other land) in accordance with the native vegetation management plan will, after allowing for the loss of the vegetation to be cleared, result in a significant environmental benefit; or

(D) information that establishes that it is not possible for the applicant to achieve a significant environmental benefit in the manner contemplated by subsubparagraph (C); and

(ii) in any case—

(A) the prescribed number of copies of a report relating to the proposed clearance prepared in a form approved by the Council; and

(B) such other information as the Council reasonably requires; and

(C) the prescribed fee (including the fee prescribed for the report referred to in subsubparagraph (A)).

(2) Section 28(4)—delete 'subsection (3)(b)(ii)(B)' and substitute 'subsection (3)(b)(i)(D)'

(3) Section 28(5)—delete 'subsection (3)(b)(iia)' and substitute 'subsection (3)(b)(ii)(A)'

(4) Section 28(6)—delete 'subsection (3)(b)(iia)' and substitute 'subsection (3)(b)(ii)(A)'

(5) Section 28(7)—delete 'subsection (3)(b)(iia)' and substitute 'subsection (3)(b)(ii)(A)'

This is part of a suite of amendments I am moving. The Hon. Ms Lensink had a similar proposal but, as we are going with the government's amendments, I move amendment No. 4. Existing section 28 relates to application for consent to clear and provides in part the information provided for that application must establish that either the significant environmental benefit offset will be achieved on ground or that it is not possible, in which case the applicant can propose a payment to the Native Vegetation Fund in lieu.

This amendment provides for a modification to recognise the establishment in use of credit and the information to be provided in the application for consent, including the requirement to provide a management agreement, as required by proposed new section 25D. The new amendments not only establish credit but integrate the establishment of credit with a scheme to enable the utilisation of credit, notably in the third-party context.

It ensures there is a management agreement where there is assignment of credit or if the significant environmental benefit is being provided by a third-party provider, or if the requirement is to be met in any other fashion. It ensures an applicant has assessed, as part of their application, whether there is sufficient credit to meet the significant environmental benefit requirements. I foreshadow that the other amendments Nos 2 to 5 will be consequential.

The Hon. J.M.A. LENSINK: These amendments are consequential, and I have already agreed that we will support the government's regime when it comes to third-party offsets and credit schemes.

The Hon. R.L. BROKENSHIRE: I can, in principle, still speak to this amendment. I move:

Amendment No 5 [Broke–1]—

Page 6, after line 34—Insert:

(4) Section 28—after subsection (4) insert:

(4a) Without otherwise limiting this section, the following provisions apply in relation to an application for consent to clear native vegetation for road safety purposes:

(a) subsection (3)(b)(iia) does not apply in relation to the application;

(b) the amount of environmental benefit the applicant must achieve, or the amount of compensation to be paid under subsection (4), or the value of the credit under section 28A required, must not be more than one-third of the environmental benefit, compensation or credit (as the case requires) that would have been required had the clearance been for any other purpose;

(c) the prescribed fee required to accompany the application will be taken to be one-third of the prescribed fee applicable in respect of applications for consent to clear native vegetation for any other purpose (excluding the fee prescribed for a report referred to in subsection (3)(b)(iia)).

To be brief and summarise, section 28 after subsection (4), I insert (4a) and then paragraphs (a), (b) and (c). This is to help councils clear native vegetation without ridiculous offsetting costs or requirements by capping the money, offset where it is required to be one-third of the total environmental benefit required. I have already said my piece on why I believe this should be supported. I seek confirmation from the minister and the shadow minister that they will not be supporting it.

The Hon. I.K. HUNTER: The honourable member is quite right: the government will not be supporting this amendment. The situation, we believe, is already catered for in a manner which provides for a balance between conservation and safety. First, roadside vegetation can be managed by a local government agency in accordance with either guidelines issued by the Native Vegetation Council or under a roadside vegetation management plan approved by the Native Vegetation Council. This is done under the existing regulations.

Secondly, in 2012 the Native Vegetation Council finalised a policy in relation to clearance for road safety purposes, a framework for the clearance of native vegetation under regulation 5(1)(lb), public safety for rail crossings, road intersections and roadsides. The policy was established under existing regulation, which is clearance for public safety purposes. Under that regulation, clearance may occur for public safety purposes without a requirement for a significant environmental benefit.

The policy was developed in conjunction with the Department of Planning, Transport and Infrastructure, together with the Local Government Association of South Australia, with some input from a non-governmental environmental group. I note (or I am advised, as I do not have the correspondence with me) that in correspondence, dated 30 January 2013, from the then president of the Local Government Association of South Australia to Dr Duncan McFetridge in the other place, in relation to the proposed legislation for Native Vegetation (Road Verges) Amendment Bill 2012, that correspondence supported the government's position.

The existing situation encourages planning by local government in its management of roadside vegetation, which includes safety. It also allows unplanned situations to be addressed, encourages an appropriate assessment of the situation and the exploration of alternatives. The existing situation balances safety needs with conservation, noting that in some cases roadside vegetation can represent and contain the last pre-European native vegetation remnants in an otherwise extensively cleared landscape.

I thank the honourable member for his impassioned contribution, but I repeat that we believe that the situation is well catered for under existing legislation and policy.

The Hon. J.M.A. LENSINK: I understand a shorthand version of what the minister might have just said, that the local government sector has indeed managed to find some sort of compromise to enable it to manage this issue into the future and that therefore this amendment is not required.

The CHAIR: For the assistance of the committee, I will be putting the Hon. Mr Brokenshire's amendment first and then dealing with the minister's amendment.

The Hon. R.L. Brokenshire's amendment negatived; the Hon. I.K. Hunter's amendment carried; clause as amended passed.

Clause 14.

The Hon. I.K. HUNTER: I move:

Amendment No 5 [SusEnvCons–1]—

Page 7, lines 1 to 35—Delete clause 14

This amendment deletes clause 14. Clause 14 established a credit for significant environmental benefit offsets. The clause has been superseded by the government's third-party significant environmental benefits offset scheme and the establishment and assignment of credits and the provision of third-party environmental benefits.

Amendment carried; clause deleted.

New clauses 14A and 14B.

The Hon. J.M.A. LENSINK: I should check this before I speak, but I think that this one might be one of the ones that we will not be moving. I will not be moving [Lensink-2] 10.

The Hon. I.K. HUNTER: I move:

Amendment No 6 [SusEnvCons–1]—

Page 7, after line 35—Insert:

14A—Amendment of section 29—Provisions relating to consent

(1) Section 29—after subsection (4a) insert:

(4b) The Council may give its consent to the clearance of native vegetation that is in contravention of subsection (1)(b) if the Council is satisfied that—

(a) —

(i) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been achieved and credited to the applicant under section 25A, or assigned to the applicant under section 25B; or

(ii) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been, or is to be, achieved by an accredited third party provider in accordance with section 25C; or

(iii) a significant environmental benefit, which outweighs the value of retaining the vegetation, has been, or is to be, achieved by or on behalf of the applicant, having regard to the combined value of—

(A) the value of any environmental benefit credited to the applicant under section 25A, or assigned to the applicant under section 25B; and

(B) the value of any environmental benefit that has been, or is to be, achieved by an accredited third party provider in accordance with section 25C; and

(C) the value to any environmental benefit to be achieved through the imposition of conditions and the taking of other action by the applicant; and

(b) that the particular circumstances justify the giving of consent.

(2) Section 29—after subsection (12) insert:

(12a) Subsections (11) and (12) do not apply in relation to a consent to which subsection (4b)(a)(i), (ii) or (iii) applies.

(12b) The Council must account for the application of any credited environmental benefit to a consent under this Division in accordance with the scheme prescribed by the regulations.

14B—Amendment of section 29A—Avoidance of duplication of procedures etc

Section 29A(2)(b)—delete 'section 28(3)(b)(i)' and substitute 'section 28(3)(b)(i)(C)'

If the Native Vegetation Council approves a clearance application then it can only do so with regard to provisions of consent detailed in section 29 of the act. The existing section 29 provides a restriction on clearing contrary to the principles of clearance contained in schedule 1 of the act. These principles incorporate factors such as high plant diversity, species of significance, soil erosion and wetlands.

The Hon. R.L. BROKENSHIRE: On behalf of the Hon. Ann Bressington, I move:

Amendment No 2 [Bressington–1]—New clause

Page 7, after line 35—Insert:

14A—Amendment of section 29—Provisions relating to consent

Section 29—after subsection (2) insert:

(2a) Despite any other provision of this Act, the Council must not refuse to consent to an application to clear native vegetation on land that forms part of a property used for the business of agriculture solely on the ground that the native vegetation is a habitat for wildlife.

What the mover intends here is that, despite any other provision of this act, the council must not refuse to consent an application to clear native vegetation on land that forms part of a property used for the business of agriculture solely on the ground that native vegetation is a habitat for wildlife. Really what the Hon. Ann Bressington is saying is that the Native Vegetation Council needs to show more than just native vegetation being a habitat for wildlife before they can refuse an application to clear for agriculture.

The Hon. I.K. HUNTER: The government will oppose the amendment. If the decision were based solely on the provision of habitat for wildlife it would mean that the habitat could be removed under state law, even if the wildlife concerned were a rated species. It would be at odds with the commonwealth legislation and the Environment Protection and Biodiversity Conservation Act 1999. The amendment is essentially redundant in that the management of land for primary production is already explicitly catered to and these decisions are not based on one factor or criteria alone.

The Hon. J.M.A. LENSINK: The opposition will not be able to support this amendment. I think it is actually inconsistent with the entire purpose of the act and might actually be in breach of the federal EPBC Act as well, so we are unable to support it for those reasons.

The Hon. A. Bressington's new clause 14A negatived; the Hon. I.K. Hunter's new clauses 14A and 14B inserted.

Clause 15 passed.

Clause 16.

The Hon. R.L. BROKENSHIRE: On behalf of the Hon. Ann Bressington, I move:

Amendment No 3 [Bressington–1]—

Page 7, after line 38—Insert:

(a1) Section 31E—after subsection (1) insert:

(1a) An authorised officer must not issue a direction of the following kinds under subsection (1):

(a) a direction that a person plant native vegetation on a property such that access to a watercourse (within the meaning of the Natural Resources Management Act 2004) on the property by—

(i) livestock or native animals; or

(ii) a person engaged in activities associated with preventing or controlling the spread of fires or potential fires (whether on the property or otherwise),

is impeded, or may be impeded in future;

(b) a direction that a person plant native vegetation of a kind, or in a location, on a property that substantially increases the risk or severity of fire on the property;

(c) in the case of a direction relating to land that forms part of a property used for the business of agriculture—a direction that is inconsistent with, or unreasonably affects, carrying on the business of agriculture on the property (including, to avoid doubt, a direction that a particular crop be planted or not be planted, or that particular livestock not be grazed on the land),

(and, if such a direction is issued, the direction is void and of no effect).

In general, this amendment introduces that authorised officers cannot direct landholders to plant native vegetation that obstructs livestock access to watercourses, firefighting or increases fire risk or is inconsistent with the farming needs on the property.

The Hon. I.K. HUNTER: The government opposes the amendment. Section 31E allows an authorised officer to issue an enforcement notice, which can either be a stop work order or be a minor make good order, based on an unauthorised clearance. This amendment effectively makes any direction given on agricultural land null and void; that is, on agricultural land, the landholders are not constrained by the provisions of the Native Vegetation Act. The property used or partly used for agricultural purposes could be cleared of native vegetation on the basis that it is inconsistent or unreasonably interferes with agricultural production. As the Hon. Ms Lensink said about a previous amendment, it is potentially contrary to the whole intent of the bill.

The Hon. J.M.A. LENSINK: Apart from any of the environmental issues that may arise, this clause should be opposed because it may well lead to landholders who overstocked and degraded their properties to utilise this for their own benefit. It reminds me a little bit of some of the amendments we had to the NRM Act, where downstream water users would have been potentially disadvantaged if they had been included in the bill. On balance, we are unable to support this amendment.

Amendment negatived; clause passed.

Clauses 17 and 18 passed.

New clause 18A.

The Hon. R.L. BROKENSHIRE: On behalf of the Hon. Ann Bressington, I move:

Amendment No 4 [Bressington–1]—New clause

Page 9, after line 12—Insert:

18A—Insertion of section 33AA

Before section 33A insert:

33AA—Minister to establish policies with respect to the exercise of powers by authorised officers

(1) The Minister must establish a policy or policies with respect to the exercise by authorised officers of their powers under this Act.

(2) Without limiting subsection (1), the Minister must ensure that a policy under this section sets out—

(a) the manner in which the powers of authorised officers under sections 31E and 33B will be exercised; and

(b) that an authorised officer must, in exercising his or her powers under the Act, respect the right of a person to expect fair and balanced treatment.

(3) The Minister may vary or substitute a policy under this section from time to time.

(4) The Minister must ensure that a copy of any policy in operation under this section is published on a website maintained by the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act.

This amendment relates to general orders being issued to authorised officers on how to use their super police powers. What I think the Hon. Ms Bressington wants to do here is to ensure that there is a process to establish policies by the minister so that authorised officers do not overstep the mark with respect to farmers and property owners.

The Hon. I.K. HUNTER: The government opposes the amendment. The government believes that the requirements which currently exist in the act are sufficient. There is an existing provision in the act detailing offences by authorised officers, at section 33EA. All authorised officers under the Native Vegetation Act are public servants and must abide by both the Public Sector Act 2009 and the public sector code of conduct. The powers of the act are exercised in accordance with the act and the Crown Solicitor's Office advice and, if necessary, are ultimately tested in the court. The government believes that this is sufficient and will oppose the amendment.

New clause negatived.

Clause 19 passed.

Clause 20.

The Hon. R.L. BROKENSHIRE: On behalf of the Hon. Ann Bressington, I move:

Amendment No 5 [Bressington–1]—

Page 9, before line 17—Insert:

(1) Section 33B—after subsection (3) insert:

(3a) An authorised officer must not give a direction of the following kinds under subsection (1)(l):

(a) a direction that a person plant native vegetation on a property such that access to a watercourse (within the meaning of the Natural Resources Management Act 2004) on the property by—

(i) livestock or native animals; or

(ii) a person engaged in activities associated with preventing or controlling the spread of fires or potential fires (whether on the property or otherwise),

is impeded, or may be impeded in future;

(b) a direction that a person plant native vegetation of a kind, or in a location, on a property that substantially increases the risk or severity of fire on the property;

(c) in the case of a direction relating to land that forms part of a property used for the business of agriculture—a direction that is inconsistent with, or unreasonably affects, carrying on the business of agriculture on the property (including, to avoid doubt, a direction that a particular crop be planted or not be planted, or that particular livestock not be grazed on the land),

(and, if such a direction is given, the direction is void and of no effect).

The Hon. I.K. HUNTER: The government opposes the amendment on the same principle that it opposed [Bressington-1] 3, in that the proposal could compromise reasonable compliance activities. To assist the chamber, I understand that the Hon. Michelle Lensink will be amending section 33B with her amendment No. 11, which is to oppose a clause. The government will accept the Hon. Ms Lensink's position.

Amendment negatived; clause negatived.

Clause 21 passed.

New clause 21A.

The Hon. R.L. BROKENSHIRE: On behalf of the Hon. Ann Bressington, I move:

Amendment No 6 [Bressington–1]—

Page 9, after line 20—Insert:

21A—Insertion of Part 5A

After section 33EA insert:

Part 5A—Review and appeal

33F—Ministerial review of certain decisions

(1) A person aggrieved by—

(a) a decision of the Council to refuse an application for consent to clear native vegetation; or

(b) a decision of an authorised officer to give a direction under this Act (including, to avoid doubt, a direction under section 31E); or

(c) any other decision of a kind prescribed by the regulations,

may, within 28 days after the day on which the decision is made, apply to the Minister for a review of the decision.

(2) The Council or authorised officer (as the case requires) must, if required by the applicant for the review, state in writing the reasons for the decision that is the subject of the application for review.

(3) If the reasons of the Council or authorised officer (as the case requires) are not given to the applicant for the review in writing at the time of making the decision and that person, within 28 days of the making of the decision, requires the Council or authorised officer (as the case requires) to state the reasons in writing, the time for instituting a review runs from the time at which that person receives the written statement of those reasons.

(4) An application for a review must be made in a manner and form determined by the Minister.

(5) The Minister must review the decision that is the subject of an application for review under this section.

(6) An applicant for review must, if so required by the Minister—

(a) appear personally before the Minister in support of the application; and

(b) provide any information sought by the Minister; and

(c) verify information provided to the Minister by statutory declaration.

(7) An applicant for review may be assisted before the Minister by an agent or representative (not being a legal practitioner).

(8) On a review under this section, the Minister—

(a) may confirm, vary or revoke the decision under review or set aside the decision and substitute a new decision; and

(b) must provide the applicant for review with a written statement of the reasons for making the decision.

33G—Appeal to ERD Court against decision of Minister

(1) An applicant for a review under Division 1 who is not satisfied with the decision of the Minister on the review may appeal to the ERD Court against the decision.

(2) An appeal must be instituted within 28 days from the time the appellant receives the written statement of the reasons for making the decision appealed against.

The Hon. I.K. HUNTER: The government opposes the amendment. There are already existing rights and obligations in relation to the consideration of matters by the Native Vegetation Council. The act allows for any person to make representation to the council in relation to clearance applications. An applicant has the right to appear before the council and natural justice is required to apply to that process. If a decision is refused in whole or part then written reasons must be provided to the applicant by the council.

Administratively, the council is set up and operates a specialist panel to consider clearance consents, the Native Vegetation Assessment Panel, which is made up of three members of the council. The government believes this is sufficient and will be opposing the amendment.

New clause negatived.

Clause 22 passed.

Clause 23.

The Hon. I.K. HUNTER: I move:

Amendment No 7 [SusEnvCons–1]—

Page 10, after line 41—Insert:

(6a) In any legal proceedings, an apparently genuine document appearing to be a copy of a management agreement under section 25D certified by the Minister is, in the absence of proof to the contrary, proof of the agreement and its terms.

This amendment is consequential.

Amendment carried; clause as amended passed.

Clause 24 passed.

Clause 25.

The Hon. I.K. HUNTER: I move:

Amendment No 8 [SusEnvCons–1]—

Page 11, lines 16 to 26—Delete clause 25 and substitute:

25—Substitution of section 41

Section 41—delete the section and substitute:

41—Regulations

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.

(2) Without limiting the generality of subsection (1), the regulations may make provision for or relating to—

(a) exemptions (conditional or unconditional) from specified provisions of this Act; and

(b) fees in respect of any matter under this Act and their payment, recovery or waiver; and

(c) fines, not exceeding $10,000, for offences against the regulations; and

(d) expiation fees, not exceeding $750, for offences against this Act or the regulations; and

(e) facilitation of proof of the commission of offences against the regulations.

(3) The regulations may vary Schedule 1.

(4) The regulations may—

(a) be of general application or vary in their application according to prescribed factors;

(b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister, the Council or other specified person or body;

(c) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time.

(5) If a code, standard or other document is referred to or incorporated in the regulations—

(a) a copy of the code, standard or other document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and

(b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.

There is an existing provision in the bill for the amendment of section 41. The government amendment to the bill incorporates those amendments and allows for amendments associated with third party significant environmental benefit offsets and accepts the proposal by the Hon. Mr Brokenshire to consequential provisions of a savings or transitional nature. So, well done, Robert, you got a clause up.

The Hon. R.L. BROKENSHIRE: Thank you. All good things come to those who wait, minister.

The CHAIR: Minister, you are accepting the Hon. Mr Brokenshire's amendment, is that what you are saying?

The Hon. I.K. HUNTER: No. What we are doing is incorporating the intent of his amendment in my amendment No. 8. So, we will be opposing his amendment to clause 25 and substituting it with mine.

The Hon. R.L. BROKENSHIRE: Sir, I advise the council that, as I am very kind to this minister, I will concur with him and I will withdraw my amendment, so we can go to lunch.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (13:02): I move:

That this bill be now read a third time.

Very briefly, I would like to thank the many people who have been involved in this very long and drawn out process. I would like to thank those members who contributed to the debate, particularly the Hon. Michelle Lensink for the very cooperative way that she has worked with me and my office. She has not got everything she was after, neither have I, but I think we have a better product at the end of the day. So, I thank everybody, particularly also the Native Vegetation Council for its forbearance.

Bill read a third time and passed.


[Sitting suspended from 13:03 to 14:15]


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