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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-26 Daily Xml
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Housing Improvement Bill

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. J.S. LEE: As I have highlighted in my second reading contribution, the Liberal opposition has serious concerns about duplications and red tape imposed by the government on owner-occupiers and believes that individuals should be given the freedom to live how they choose. There has already been much debate in the other place about this matter, centred around premises occupied by owners. In subsequent discussions, together with crossbenchers such as the Hon. John Darley and the Hon. Dennis Hood (Family First), the Liberal opposition has indicated its support for a set of amendments that was filed in the council on 13 April 2016.

Unfortunately, minister Zoe Bettison was clearly not happy with these amendments and threatened to pull the bill altogether. From the early days, we have said that we are keen to help the government modernise the bill and repeal the Housing Improvement Act 1940 because we recognise that it is out of date. It is more than 70 years old. However, I just want to put on the record that we do not like being bullied into accepting the bill in its current form without attempting to preserve the rights of individuals and protect the liberty of owner-occupiers.

The legitimate process for us here is to advocate for our constituents who may be disadvantaged by the bill, yet the government is so arrogant and adamant about their legislation that it will push to shut us down by pulling the bill altogether if it is not passed in its current form. After much discussion and subsequent meetings with the minister and her advisers and with crossbenchers as well—and I would particularly like to thank the Hon. John Darley and his office for working very closely with us—we have come to an agreement with Rachel Sanderson (member for Adelaide) in the other place.

Because many of the amendments she has tried to push through the House of Assembly have not been accepted by the minister and because it looks like there is not the appetite for them to be accepted here in this council, today I will withdraw all 26 amendments filed on 13 April 2016. I want to place on the record that we have attempted to protect owner-occupiers, but there is no appetite in this house today to push them through, so I withdraw those amendments.

The Hon. I.K. HUNTER: I rise to thank the Hon. Jing Lee on behalf of the Liberal opposition for their position and the agreement that has been reached. I would like to thank her for the constructive approach to working with the government on improving the bill; however, just as she put on the record her views on this matter I think I should also put on the record the government's position. We certainly have never wanted to appear to be bullying the opposition into this position but let me say this: the current legislation has a series of protections in it now which the government is not prepared to do away with. If that means that this current amendment bill will remove—if it had the support of the Legislative Council—those current existing protections, we would prefer to see this amendment bill go down rather than lose those protections that are already in the bill.

Let me just take you quickly through the thinking. The opposition has pointed out that individuals should have the freedom to live as they choose. However, we all recognise that freedoms must be weighed against the impacts on other people. It is not a reasonable argument, we submit, and in fact it is contrary to logic, to say that an individual has the right to choose to live in an unhealthy or unsafe way when this has the potential to impact on the health and safety of other people.

The government says that property owners should not have the right to compromise the health and safety of others. Should parents or even grandparents have the right to compromise the health and safety of young children who come to visit, for example? Should owners have the right to place service providers who come onto their property or visitors to their home at risk of death or injury? Our position is no. The government firmly believes that they should not and the government expects that all serious property defects should be appropriately resolved so that the risks to residents and other people are removed. That is the basis of our thinking.

Again, I thank the Hon. Ms Jing Lee for her constructive approach but from our perspective there are existing protections in the current legislation that we are just not prepared to give up in this amendment bill process and that is why the minister in the other place said to the opposition that if they persist with these amendments and if they are successful we will forgo this amendment bill and keep the existing protections.

The Hon. M.C. PARNELL: I might just take this opportunity to quickly put the Greens' position on the record. I acknowledge the Hon. Jing Lee and her colleagues who have actually raised a very important issue of civil liberties. I guess the question, as it has been posed, is: should you have the right to live in a manner and in circumstances of your own choosing? A civil libertarian approach would be to say yes, you should be able to, and I accept that. However, I think very much for similar reasons as the minister has just offered, it was misguided to reconstruct this legislation so that it does not apply to owner-occupied premises because it is not just the right of compos, free-choosing adults, there is also potential collateral damage. It is their children, it is their elderly parents, it is visitors to their properties, it is their neighbours, all of whom could be impacted by substandard housing.

If there is not a legislative mechanism for dealing with that housing then there may well be victims other than the owners of the property who, for their own reasons, are choosing to live in squalor, if that is what they choose to do; however, potentially imposing that standard on to third parties made these amendments unacceptable to the Greens. I certainly acknowledge and appreciate that the Liberals have put on the agenda an important issue for us to address, so no criticism of the Hon. Jing Lee or her colleague in another place Rachel Sanderson. I think it was a debate worth having but I think the Liberals have done the right thing here by pulling these amendments because the alternative may well have been a 1940 act continuing in existence, and I think we can do better than that.

The CHAIR: The Hon. Ms Lee, you are withdrawing your first set of 26. You have a second set of 11 amendments. You are keeping them, are you?

The Hon. J.S. LEE: There are some I will. The second set of four amendments I would like to move, and that has been accepted by the minister. Then the other five or so I need to withdraw.

The CHAIR: You can indicate that as we get there.

Clause passed.

Clause 4 passed.

Clause 5.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 8, after line 8 [clause 5(2)]—After paragraph (c) insert:

(ca) environmental performance (including water and energy efficiency) of premises and any fixtures, fittings or facilities provided with premises;

I will not speak to this at great length because I did outline it in my second reading contribution but just in summary I am not proposing the addition of any more binding standards. What I do want to do is to keep the door open by inserting a head of power, effectively, into the regulations that relate to the environmental performance of buildings. As members would perhaps know, over the decades standards have changed. Originally, this legislation did not require flushing toilets. It was good enough to have a dunny can out the back—that is the technical term, I think—on a laneway, but over time the expectations of the community, through legislation, have changed and now we do require a higher level of sanitation.

I guess I am inviting the parliament to take us to the next level, in terms of environmental performance, by simply adding the head of power into the act so that regulations, if the government sees fit, could be made to create standards around environmental performance, including water and energy efficiency. I am not expecting that this amendment is controversial but I will, unless I have something to respond to, leave it there for now.

The Hon. I.K. HUNTER: We warmly accept the Hon. Mark Parnell's invitation to join him at the next level and we will be supporting his amendment.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 2 [Parnell–1]—

Page 8, after line 13 [clause 5(2)]—After paragraph (h) insert:

(ha) construction materials used in premises, and any fixtures, fittings or facilities provided with premises, that pose or may pose a risk to human health;

I may or may not be pushing my luck, but I am also expecting that this is a non-contentious amendment. In my second reading contribution I did refer to the disastrous case of Mr Fluffy in Queanbeyan and Canberra, whereby we are seeing houses being demolished because of the materials that they were constructed with. Again, like the earlier amendment, I am proposing to put a head of power into the act that enables regulations to be made, setting minimum standards for the construction materials used in premises, especially if those materials may pose a risk to human health. Asbestos is the example, but I am sure we could think of others as well. Again, it does not of itself create any new obligations on anyone: it simply gives the government the ability to regulate for additional building standards as the basic standard dwellings used for human habitation at some time in the future.

The Hon. I.K. HUNTER: Mr Parnell's luck is holding. The government will be accepting the amendment.

Amendment carried; clause as amended passed.

Clauses 6 to 10 passed.

Clause 11.

The Hon. J.S. LEE: I move:

Amendment No 1 [Lee–2]—

Page 10, line 25 [clause 11(1)]—Delete 'An' and substitute 'Subject to this section, an'

This is very a minor amendment there, just sort of like a typo.

The CHAIR: You have both put the same amendment in, so I imagine the minister will—

The Hon. I.K. HUNTER: I might just seek some clarification from table staff. I think it might be easier—and I stand to be corrected—if the government moves the identical amendment because there are a number of other amendments that we need to speak to. If that is the case, then I can move that and speak to the other issues as well. Yes? So, I thus move:

Amendment No 1 [SusEnvCons–1]—

Page 10, line 25 [clause 11(1)]—Delete 'An' and substitute 'Subject to this section, an'

As outlined, this amendment is identical to the amendment of the Hon. Ms Jing Lee. It seems to be a technical amendment. This and subsequent amendments proposed to clause 11 by the government provide further clarity on authorised officer powers. I thank the Hon. John Darley for his contribution to this section.

As the chamber is aware, under the Housing Improvement Act 1940 the government regulates the standard of housing to ensure it is safe and suitable. Currently, under the act, Housing SA officers have very wide powers, such that any member of the housing authority may enter any premises for the purposes of examining the premises and generally enforcing the act. This bill does not propose any new powers, I am advised.

Amendment carried.

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

Amendment No 2 [SusEnvCons–1]—

Page 10, line 27 [clause 11(1)(a)]—Delete paragraph (a) and substitute:

(a) after giving reasonable notice to the owner or occupier of residential premises—enter the premises for the purposes of carrying out an inspection of the premises; and

This amendment makes the bill and then the act consistent with modern legislation to set out the powers of government officers and the bill is consistent, I am advised, with other legislation concerning health and safety such as the Work Health and Safety Act 2012 and the Public Health Act 2010.

The bill sets out explicitly what the officers' powers are. This is a positive change from the current act which includes a catchall phrase giving officers powers to enforce the provisions of the act. In administration of the current act, inspections are facilitated at a time that is convenient to the occupier or the tenant or owner-occupier. This amendment explicitly states that authorised officers are required to give reasonable notice before entering premises under the bill.

The Hon. M.C. PARNELL: Just by way of clarification, the only difference that I can see between the minister's amendment and the Hon. Jing Lee's amendment is that the minister requires 'reasonable notice' to be given. The Hon. Jing Lee's amendment requires a 'prescribed notice'. That appears to be the only difference. Could the minister elaborate why he believes that reasonable notice is the preferred model?

The Hon. I.K. HUNTER: My advice is that the circumstances have to dictate what is reasonable. The requirements for having to form a 'reasonable belief' and providing 'reasonable notice' give adequate protections to all occupants, ensuring the administration of the legislation is focused on health and safety risks. This and subsequent amendments by the opposition seek to establish a different threshold for owner-occupiers, which, as I have advised earlier, the government will not support. So my understanding is that the Hon. Jing Lee was not moving this amendment.

The Hon. J.S. LEE: I had a discussion around 2 o'clock today with the minister's adviser, and our discussion was that I will move the amendments, in agreement with the minister, and that you will pull all your amendments. We have spoken about the 'prescribed notice' of entry rather than 'reasonable', because in the first place we feel that for any authorised officer to be given so much power without a prescribed notice would mean that there is no notice given to anybody entering the house. We were giving too much authorised power, and talking to the Hon. John Darley, the minister's office, etc., we have agreed that my amendments would be acceptable. That was the case this afternoon around 2 o'clock.

The Hon. I.K. HUNTER: My advice, and this forms the basis of our difference, is that if the circumstances require it departmental officers will be required to act if there is an immediate threat that needs to be addressed. We cannot sit around and wait for 24 hours for a prescribed period to elapse before acting. Our position is that if there is a reasonable belief formed, then we can act on that, but if you insist on having a prescribed notice of entry, then our officers will be put in the untenable position of being required to act but not being legally able to because of the prescribed period.

The CHAIR: There is an issue here, though, that if there is a belief or a perception that there is agreement reached on amendments and the like, that needs to be sorted out, because I imagine if there is no agreement reached the opposition may have a different position on this. I just find it hard to go further than this until you find out whether you have agreement or not. If there are any other views on that, please tell me.

The Hon. I.K. HUNTER: My advice is that this is only clause where there is not an agreed position. The opposition is maintaining its position on this. This is one on which we have not reached agreement, but in subsequent clauses, as the Hon. Jing Lee has laid out to the house, she will not be moving those amendments—she put the Liberal Party's position on the record at clause 3 I think it was—I think that is right.

The Hon. J.S. LEE: To provide further clarification, in our discussion the Hon. John Darley, the Hon. Dennis Hood and I agreed on a prescribed notice of entry, together with a discussion with the minister's office, that the prescribed notice of entry shall be—if we turn to the following page, clause 11, page 11, line 28, subclause(7), we have a prescribed notice of entry which is defined as:

(a) if the housing standards in the premises pose or may pose an imminent risk of death or serious injury or illness to occupiers of the premises, immediate access should be granted;

That is what we agreed on, not the 24 hours, but that immediate access should be granted by the owner or occupier, and:

(b) in any case—at least 5 working days notice before the entry or such shorter period as may be requested or consented to by the owner or occupier.

That was my discussion with my minister's adviser this afternoon around two o'clock. If it is not agreed to, we might report progress and come back.

The Hon. I.K. HUNTER: Those are not my instructions, and I am afraid the government does not support, at this point in time at least is my advice, the amendment moved by the Hon. Jing Lee. If it is her view that agreement has been reached, it certainly has not been conveyed to me, and therefore it is appropriate that we report progress and come back at a later stage.

Progress reported; committee to sit again.

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