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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-02-23 Daily Xml
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Bills

Planning, Development and Infrastructure Bill

Committee Stage

In committee.

(Continued from 11 February 2016.)

Clause 74.

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

Amendment No 49 [Parnell–1]—

Page 64, after line 39—Insert:

(1a) For the purposes of subsection (1)(b), undesirable development, in relation to a proposed amendment to the Planning and Design Code or a design standard, is development that would detract from, or negate, an object of the amendment.

(1b) The Minister must consult with the Commission before the Minister acts under subsection (1).

We have spoken about this at some length. I am trying to recall how far into this clause we got before we adjourned.

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: As the minister interjects, it does tend to merge into one joyful and blissful experience. In terms of—

The Hon. D.W. RIDGWAY: It is consequential, isn't it, amendment No. 49?

The Hon. M.C. PARNELL: Yes. Are we at amendment No. 48 or 49?

The Hon. D.W. RIDGWAY: I think we passed No. 48 and then we sought leave to report progress because it was knock-off time, but I reckon No. 49 is consequential.

The Hon. K.J. MAHER: We accept it is consequential.

The Hon. M.C. PARNELL: Yes, 49 is consequential.

Amendment carried.

The Hon. D.W. RIDGWAY: Given that we are dealing with planning and design codes, these are a couple of questions I would have asked at the end of the second reading contribution. It is some correspondence from the National Trust, so I thought I should put these questions formally on the record, not for the minister to answer now but so that he can bring back an answer later on. I had a letter from the National Trust seeking some assurance through clarification and amendments to the Planning, Development and Infrastructure Bill, particularly in the unseen planning and design code. Their questions are:

1. That all currently designated heritage places (state and local), historic conservation zones and 'contributory items' retain their existing protections under the still-to-be implemented Planning and Design Code.

2. That local councils retain the right to designate new heritage places, contributory items and historic conservation zones and have them implemented through the Planning and Design Code.

3. That the proposed Community Engagement Charter specifically empower the National Trust and like organisations to make submissions advocating the designation of heritage places and to oppose delisting or demolition of recognised heritage places.

4. That provision to be made to designate local council areas with numerous places identified as 'contributory items' to be redesignated as historic conservation zones.

It is just those four questions that I gave an undertaking to the National Trust that I would put on the record so that the minister, probably at the end of the committee stage or third reading, can bring back an answer.

The Hon. K.J. MAHER: I know that that correspondence has been received and an answer is being prepared and, when that is done, we can bring back an answer to the questions that have now been put on the record.

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

Amendment No 50 [Parnell–1]—

Page 65, after line 18—Insert:

(7) Despite any other provision of this Act, while an amendment to the Planning and Design Code or a design standard is in interim operation under this section—

(a) any application for planning consent in respect of which the amendment is relevant must be assessed against the provisions of the Planning and Design Code or design standard immediately before the amendment was made and the provisions of the Planning and Design Code or design standard after the amendment was made and if the decision on the application would be different depending on which version of the Planning and Design Code or design standard applies (including with respect to any condition that would apply in relation to the development)—

(i) planning consent must not be granted until the amendment is no longer in interim operation; and

(ii) the application must then be assessed at the end of the period of interim operation against the provisions of the Planning and Design Code or design standard as in force immediately after the end of that period (and section 126(2) will not apply); and

(iii) any period that applies under section 119 will be suspended while the application is subject to the operation of this paragraph; and

(b) if the amendment reduces the level of notification or consultation required under this Act, any application for planning consent in respect of which this aspect of the amendment is relevant must be considered as if the amendment to the Planning and Design Code or design standard had not been made (unless or until the amendment is no longer in interim operation).

That is again the same issue. If people are happy to regard it as consequential, we can approve that as well.

Amendment carried; clause as amended passed.

Clause 75 passed.

Clause 76.

The Hon. K.J. MAHER: I move:

Amendment No 32 [Emp–4]—

Page 65, line 34—After 'may,' insert 'after consultation with the Commission,'

This and government amendment No. 33 are inserted in response to a request to clarify the government's intentions regarding the role of the state planning commission. If this amendment is passed, it will require the minister to consult with the commission prior to publishing a ministerial building standard.

Ministerial building standards already exist, as minister's specifications are found in the existing development regulations, and may relate to building work, design, construction, quality, safety, health, amenity, sustainability or maintenance of buildings, or modify the building code as it applies under the act, and may also provide for 'deemed to satisfy' building practices or techniques that will be taken to comply with the building code. Clause 76 sets out more clearly the existing arrangements under the Development Act and regulations.

The Hon. D.W. RIDGWAY: The opposition is happy to support the government's amendment. Consistent with its giving the commission more prominence and status than some of the other earlier amendments, the opposition is happy to support it.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Amendment No 7 [Ridgway–1]—

Page 65, line 40—After 'sustainability' insert ', adaptive re-use'

This is almost identical to the government's amendment on file and relates to the adaptive reuse provisions that we amended in the bill last year, I think it was. I certainly urge members to support it. I think everybody supported it last time, so I do not expect any opposition.

The Hon. K.J. MAHER: The government supports this amendment for reasons stated some time ago.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 33 [Emp–4]—

Page 66, line 5—After 'may,' insert 'after consultation with the Commission,'

As foreshadowed with the last government amendment No. 32, this amendment is inserted in response to a request to clarify the government's intention regarding the role of the State Planning Commission. If passed, this will require the minister to consult with the commission prior to varying or revoking a ministerial building standard.

Amendment carried; clause as amended passed.

New clause 76A.

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

Amendment No 51 [Parnell–1]—

Page 66, after line 6—Insert:

76A—Publication

The Minister must ensure—

(a) that an up-to-date copy of the Building Code as it applies under this Act; and

(b) that any Ministerial building standard,

is published, or is capable of being accessed, on or via the SA planning portal and is available for inspection and downloading without charge.

I congratulate you, Mr Chairman, on the rapid pace with which you are progressing through these clauses. This amendment proposes the insertion of a new clause 76A. I have put this in out of an abundance of caution. The Building Code of Australia is an integral part of our planning system, but for many years it was not easily accessible to members of the public. You could not download it, and it cost you hundreds of dollars to buy. It was really quite outrageous that part of the law of Australia was inaccessible to ordinary folk.

I have now discovered that you can actually download the Building Code online—it is accessible—so this amendment seeks to make sure that that does not change. It a simple amendment and just says that the minister has to ensure that an up-to-date copy of the Building Code and any ministerial building standards are published or capable of being accessed on the portal. That might be as simple as putting a link on that portal so that people know where to find the Building Code.

It may be that, if in the future they decide to charge again for people to access the Building Code, the government has to download it and put it on the portal. At its heart is the simple principle that all parts of the law of South Australia must be freely available to all citizens. The portal seems like a logical place to keep this information.

The Hon. K.J. MAHER: I indicate the government is willing to support this amendment (the Hon. Mark Parnell's abundance of caution amendment) and, as he points out, these are already things that are looking to be done or can be done, so we are happy to support this amendment to reflect that.

The Hon. D.W. RIDGWAY: The opposition is happy to support it, and it is refreshing that the Hon. Mark Parnell is proposing something that is available for free and does not need to cost us money, so it is very good.

New clause inserted.

Clause 77.

The Hon. M.C. PARNELL: These two amendments, Nos 52 and 53, I think go hand in hand. I am seeking to amend clause 77—Entities constituting relevant authorities. Within this clause is this idea that the minister should be able to substitute an assessment panel appointed by the council with an assessment panel appointed by the minister. My position and the position of the Local Government Association is that the minister should not have the power to appoint a local assessment panel. This role is a role for the council.

If the local assessment panel is dismissed on the basis of their performance, then the council should have the authority to appoint a new panel. Deleting the two subparagraphs in my amendments Nos 52 and 53 would achieve that end. It would make it clear that the local assessment panels are not constituted by the minister, they are constituted by the council.

The Hon. K.J. MAHER: I indicate that the government opposes amendments Nos 52 and 53, as they will remove references to a local assessment panel as an entity constituting relevant authority read with later amendments that the Hon. Mark Parnell will move in amendments Nos 57 and 59. These amendments would negate the ability of the minister to intervene in relation to a dysfunctional council assessment panel.

The government opposes removal of the ability of the minister to constitute a local assessment panel in the extremely limited circumstances described by the bill, if a council-appointed panel consistently failed to comply with the requirement under the act. In reality, it is very unlikely such a power would be used often, if at all. Councils are entrusted to administer the planning system in accordance with the law.

In the unlikely event this does not occur, it is fitting that the minister of the day should have the power to implement a recommendation to the commission which, under government amendments, would be made in consultation with the relevant council or councils to remedy any such situation and thereby minimise potential adverse effects on the efficient operation of the planning system. If it were ever used, the minister would need a very good reason to exercise such a power, as he or she would be subject to potential criticism for such a decision, not only by parliament but by the government more generally.

I suggest that the government proposes the vote on these amendments, opposed by the government, be treated as a test for the following Parnell amendments Nos 52, 53 and 57. The government also asks members to consider the intent and effect of government amendments that directly relate to this (government amendments Nos 34, 35 and 36), which will impinge on the consideration given to the Hon. Mark Parnell's amendments.

Government amendments Nos 34, 35 and 36 respond to the Local Government Association's concern about local assessment panels being forced on councils by a minister. Government amendments Nos 34, 35 and 36 would amend clauses 78 and 79, and insert a proposed new clause 80A to give the commission control and councils a far greater say in any such intervention. Government amendments Nos 34 and 35 will insert a new requirement that the minister may only act on the recommendation of the commission to constitute a local assessment panel, replacing the members of a panel appointed by a council.

As stated before, this can only occur if that panel has consistently failed to comply with the requirements of the act. This will ensure that the commission has input into a decision to set aside a panel, rather than just leaving it solely to the minister of the day. In addition, government amendment No. 36 inserts a proposed new clause 80A, which will clarify that the minister must request the commission's advice regarding any council panel that has consistently failed to comply with the act. In preparing its advice, the commission must conduct an inquiry, during which the commission is required to consult with the relevant council. The commission may then recommend that either the minister or indeed the council itself reconstitute the panel.

In light of these comprehensive government amendments, which will provide far greater commission and council involvement in the process, while allowing for the removal of a council panel which is adversely affecting the efficient operation of the planning system, the government opposes the Hon. Mark Parnell's proposed amendments Nos 52 and 53, and also Nos 57 and 59.

The Hon. M.C. PARNELL: I thank the minister for his comprehensive answer. I will just point out that my amendments certainly predate the government's later filed amendments. In the spirit of cooperation, if the minister can assure the council that the Local Government Association is now happy with the arrangement that the government is now proposing with its amendments Nos 34, 35 and 36, I will not proceed with my amendments.

The Hon. D.W. RIDGWAY: While the government is giving some clarification, I might help the debate. Given the timing of the filing of these amendments, we had some sympathy for the issue the Hon. Mark Parnell was covering, but, of course, we have the subsequent amendments now filed by the government. I indicate the opposition is not going to support the Hon. Mark Parnell's amendments, but we will be supporting the government's amendments because we do think it provides more protection for those local assessment panels.

If the commission is involved, that is what we wanted to do all along. We have had a range of amendments where we tried to remove the minister's powers and refer it back to the commission and use the commission as the advisory body, and I think the government has too. From my reading of the amendments and from what the minister has told the committee, that seems to be the case. As I said, we will not be supporting the Hon. Mark Parnell but we will support the government's amendments.

The Hon. K.J. MAHER: I cannot definitively tell the Hon. Mark Parnell whether the Local Government Association prefers the government amendments over his, but I am advised they have been prepared in relation to concerns from the Local Government Association about the clause and the government amendments have been prepared in response to that.

The Hon. M.C. PARNELL: I thank the minister for his response. Out of an abundance of caution, I will move the amendments but I will not be dividing on them. I move:

Amendment No 52 [Parnell–1]—

Page 66, lines 20 and 21—Delete subparagraph (ii)

Amendment No 53 [Parnell–1]—

Page 66, Line 25—Delete subparagraph (iii)

Amendments negatived; clause passed.

Clause 78.

The Hon. M.C. PARNELL: I just want to make some observations on clause 78, because this is probably one of the top five issues in the planning bill, and I think it important for members to understand the range of options available. I do not think I am Robinson Crusoe in using multicoloured pens. There are many amendments to clause 78, but for the benefit of the committee I think we can synthesise it down into four options that we have before us.

There is an option presented by the government, the Liberals, the Greens and the Hon. John Darley. The simplest way for me to explain it to members is that option 1 is the status quo, and that is the Greens' option. That is saying that elected members are entitled to be on development assessment panels, but they must be in a minority. There must be no more than two out of the five members of the panel, which currently is the status quo. It is currently three out of seven, so two out of five is the status quo. The only qualifications in my set of amendments are that the local councillors need to have some knowledge of or experience in planning and development, as determined by their appointing local council. So that is the first option.

The second option is the Liberal Party amendment, which similarly says that elected members are entitled to be on a development assessment panel, but there must be no more than one out of the five. The qualification for that person is someone who has knowledge of local government, as assessed by the appointing council. So that is the second option. The third option is the government option: no local elected members on panels at all.

The fourth option is the Hon. John Darley's, which is the same: no elected members, but with the addition of no council staff or no council officers, and no-one who has been in one of those positions for the last two years. That is the spectrum that we are looking at: with panels of five people, do you want up to two local councillors, only one local councillor, no local councillors or no-one who has even been a local councillor recently? They are the four options.

My understanding—and I will certainly take advice from the Clerk, as we always do—is that the very first amendment to come up is going to be the Hon. David Ridgway's amendment, and that is not because it was first filed but because it appears first in the bill as we look at it. Whilst he has not moved it yet, he will very shortly. If that amendment were to pass then I think that means that it is just the one councillor on the panels. I think that is fairly certain. If the amendment fails, then all the other options are still on the table. That would be the way I would look at it.

Other members might have a different interpretation, but I think, if the Hon. David Ridgway's amendment is passed, we are going to have panels with up to one elected member; if it fails, then there is still the option of two or none, or the Darley version. I offer that as a community service announcement. I will speak to the merits of my model once the Hon. David Ridgway has moved and spoken to his amendment.

The Hon. D.W. RIDGWAY: I move:

Amendment No 1 [Ridgway–7]—

Page 67, line 3—After 'members' insert: ', only 1 of which may be a member of a council,'

The Hon. Mark Parnell has talked about this clause 78. It is a panel established by joint planning boards or councils, so it is a development assessment panel. The opposition has had quite a lengthy discussion in our internal workings around development assessment panels and there are a wide range of views, from having some level of support for no council members on panels. We have former local government members in our party room who have had the experience that they believe we would be better served not to have elected members on these development assessment panels.

On the other hand, we have a range of regional members especially and some city members who believe that those people who are elected to local government often are very experienced people or people who are very focused on developing their community and see some real benefit in having elected members involved in development assessment panels. The shadow minister, Steven Griffiths, has made it clear, as you will see in the wording of it, '1 of which may be a member of a council'. It is not saying that they have to be a member of council; there is an option there.

The Liberal opposition believes that this a very good compromise between what the government is proposing of 'no elected members', the Hon. John Darley's amendments to come of 'no elected members' plus council staff, and what the Hon. Mark Parnell is proposing with two. The reason it is a very good compromise is that if somebody on local government has some particular expertise and particular understanding of development in that community, it gives the council the opportunity to appoint somebody to the development assessment panel from that council—but they are not required to. They may actually find that it is more suitable to have a panel of people who are, shall we say, experts to do that assessment work for them.

I know the minister has often said, 'Councils should be involved in the policy and the setting of policy,' and then you have an independent panel to assess against that policy. We think this amendment provides the opportunity for those communities that wish to have a member elected official and a member of council on a development assessment panel, or a council that believes that one of their people should be on the development assessment panel the flexibility to do so.

It also gives the flexibility that if a local council says, 'We actually want a team of five experts to do the assessment work for us,' to do that too. They are not perhaps bound by the Hon. Mark Parnell's amendments, and we are not excluding those local elected officials. In our view, it certainly gives a very good compromise.

I know some professionals in the development industry have been critical of the opposition for having any elected officials, and I put it to them that if their proposal is of sufficient merit and a quality development, if they are worried that that one person from an elected official perspective can derail that project, I would be very surprised if one person out of five had enough influence to see that development not proceed. On the flipside, if that one person is able to convince at least two of the other members of the panel to reject it, clearly there is an opportunity to refine that development proposal and bring it back to the process again.

To reiterate, we think this is a very good compromise between all the options on the table and it gives a chance for local communities and local councils to have a representative if they so choose—they have one, and they pick the very best person who is available because, of course, you may find that in an elected body, if they look to put two people on it, there may be one who is particularly well skilled and somebody else who perhaps has a different agenda. This will give the councils an opportunity to pick the very best person if they choose to have an elected official on the panel, or they may choose not to at all. With those words, I urge members to support our amendments.

The Hon. K.J. MAHER: The Hon. Mark Parnell has quite usefully summed up the options that are before us, basically the four options: the Greens' options with two members; the opposition's option, one member; the government's preferred option of no members; and the Hon. John Darley's no members, and then a bit more on from that.

The reason the government supports no members is that it is in line with the recommendation of the Expert Panel on Planning Reform, and the government considers the depoliticisation of assessment panels a key platform of this proposed bill. The government aims to achieve this, again in line with the expert panel's review, by making elected representatives of council, and indeed of state government, ineligible for appointment to such boards.

Well before the debate commenced on this bill, I think it is safe to say that we had already heard a story of a council development assessment panel making decisions that reflect that panel appointees have not always in the past been based on expertise and that an elected representative's decision on panels are not always impartial. Since its introduction in the other place, Hansard entries on the bill have themselves been replete with such examples.

The Property Council of Australia's director, Mr Daniel Gannon, has highlighted that four out of five Property Council respondents consider this of the highest priority of planning reform and the key to promoting economic growth and job creation. The Property Council of Australia has pointed to multiple case studies that, in its view, represent councils politicising important decisions that affect the livelihood of small business and impede jobs. Mr David Homburg of the Australian Institute of Architects has also stated publicly:

Our members and their clients are consistently frustrated by a process where the 'rule book' (development plans) permit a particular type of development, but the assessment panels make their own determinations, sometimes only with cursory regard to the 'rules'.

Mr Homburg notes that such clients range from large developers through to people simply trying to build an extension to their house. Mr Homburg states that by far the most complaints are at the 'mum and dad' end of the spectrum, not the so-called 'big end of town'.

The government's position is that if panel members were appointed who possessed the skills and expertise needed, it is likely that better outcomes would result for all. This would enable elected members to advocate for the community at all stages and, in particular, early on in the policy development process, at which point these views are able to have the most influence. It is important to see this change in the context of the new system the bill envisages, in which the need for compliance with a community-designed community engagement charter is firmly enshrined in legislation.

Amendments filed both by the opposition and by the Greens would see this aspect of the expert panel's recommendations ignored. While recent amendments lodged by the Hon. David Ridgway, as he has outlined, would limit the membership to only one councillor per panel, the Hon. Mark Parnell's amendments would retain the ability of both current and former elected members to sit on DAPs established by joint planning boards or councils and indeed could potentially enable the majority of panel members to be comprised of such members.

The amendments filed by the Hon. John Darley go further than the drafted clause, precluding from eligibility any person who has during the preceding two years been a member of parliament or a member or staff member of council. With an array of amendments to be considered, the government essentially proposes that the Hon. David Ridgway's set of amendments [Ridgway-1] be treated as a test clause for the proposition that elected members should be or should not be retained on councils.

This would make a vote for the Hon. David Ridgway's amendments a vote for members on panels, albeit only limited to one. A vote opposing the Hon. David Ridgway's amendments should be considered a vote for not having members on panels—the government's position, namely, that elected members should not be eligible for appointment to assessment panels.

There are many reasons why we need this change. Members may recall the case described by the Hon. Mr Hood last year of the council that determined that an umbrella was a development and took the home owner all the way to court. We have heard from others of council development assessment decisions which show the need for more dispassionate, impartial decision-making, including: a mum and dad forced to apply for retrospective approval for a cubby house; students living in residential flats banned from eating meals outside after 10 o'clock at night; a small business entrepreneur forced to apply to convert a retail shop into a dog salon; and a tourist developer held up for two years in getting subdivision approval for a spa resort in a popular tourist area.

These council decisions exemplify why the Expert Panel on Planning Reform report recommended assessment panels consist of accredited professionals. It is important to look at what the expert panel actually found. After more than two years of deliberation, the expert panel found:

The primary function of elected representatives is to set policy direction. Placing assessment decisions in independent hands would allow elected members to set policy direction and advocate more freely for their communities at all stages of the planning process, and this would rid panels of conflicts between members' advocacy and decision-making roles.

The expert panel recorded community perceptions of current planning systems from the consultations, e.g. council assessment panel appointments were not always based on expertise; elected representatives act as community advocates, so that assessment decisions are not impartial or well considered; absence of mechanisms to consider complex proposals that may have regional implications.

There has been quite a level of support, as I have outlined, for the position that elected members should not be on these bodies.

As I stated, Mr David Homburg, from the Australian Institute of Architects, in an article in InDaily on 8 February 2016 entitled, 'SA's chronic planning problems need to be fixed', says, amongst other things, 'What our clients,' that is, development proponents from the mum and dad end of the spectrum, not just the big end of town:

…are experiencing is akin to a professional team preparing for a game of football only to find out on game day that the rules are actually soccer when they were led to believe they were Aussie Rules. And that some of the officials have no formal accreditation in either code.

He went on to say:

One of the main objections—

The Hon. D.W. Ridgway interjecting:

The Hon. K.J. MAHER: I do not know what sort of sport the Hon. David Ridgway is watching, but he is getting so confused. He went on to say:

One of the main objections from lobby groups during the parliamentary debate—

of the bill to date—

was the removal of elected members from the development assessment process. It has typically been characterised as a blow to democracy. This needn't be the case provided that community participation is robust, genuine and meaningful at the time when it can be most effective, that is during the preparation of planning policy.

Mr Homburg's statements reflect the elements of the new planning system already provided for in the bill, that community engagement is to be up-front, where community views can make the most difference; engagement must comply with the Community Engagement Charter, but the community itself will have the design (and this is subject to parliamentary scrutiny). The charter, notably, is required by statute to provide reasonable, meaningful and ongoing opportunities to participate via methods suited to significance and likely impact of relevant policies.

Policies and rules developed in consultation with the community, as required under the charter, must be expressed clearly in statutory instruments, subject to parliamentary oversight. Accountable accredited professionals will be subject to statutory qualification and conduct requirements and trained to objectively apply these policies and rules. Panels making decisions and applying those rules will be comprised of professionals with the skills and knowledge to make objective, non-politicised decisions based on settled planning and development policies.

This approach is neither outrageous nor new. For two decades, private certifiers with requisite knowledge, training and expertise have assessed building consent applications relevant to their qualifications and profession. Building rules are critically important and building certifiers apply often lifesaving technical rules around construction standards and requirements. An analogous approach can apply equally importantly to the planning and development system. Even on a quick tally of approximate figures provided by councils, it appears, across the 68 council areas, a relatively small number of technically qualified members (planners) sit on DAPs in order to provide expert advice on development assessment decisions.

Under this bill, panels will still be able to co-opt specialist professional members and local expertise for particular matters and call on local council members to participate in panel discussions. The only difference is the councillors will not be able to vote on individual development applications. Reasons for removing elected members from panels, we think, are very clear. I have outlined some of the views from various sectors, in particular the Property Council of Australia, who wrote to us, as members of the Legislative Council, on 5 February in support of depoliticising panels.

As I have previously said, Mr Daniel Gannon (SA executive director) expressed concerns, such as: four out of five Property Council respondents said the highest priority in planning reform was to remove the politics from councils; the removal of elected officials was key to professional decision-making, streamlining approvals and promoting economic growth and job creation; and multiple case studies represent councils politicising important decisions that affect the livelihood of small business and impede jobs.

In addition to that which I have previously outlined, Mr Gannon further informed members (if I can summarise) that, although the Property Council includes developers as members, the Property Council of Australia case studies show councils politicising important decisions. While large developments can be referred to the Development Assessment Commission, small businesses that do not meet the Development Assessment Commission threshold are locked into the politicised council-run system.

The property sector underpins the state's economy, providing—under figures provided by the Property Council itself—direct and indirect employment of 168,000 people and accounting, on the figures provided by the Property Council of Australia, for 26 per cent of wages and salaries.

I know that there are other views. Some claim the current panel system in South Australia works well and that the proposed system will erode local democracy and lack legitimacy, that this might create a democratic deficit at the local level and that this measure is undemocratic as local members are in touch with their communities. I do not think there has been any evidence to conclusively support this view. In fact, local government election figures show that at a statewide turnout of 32 per cent it is hard to say that councillors represent a holistic and complete view of their local areas. Many local councils are elected on first preference votes, some opposed and many are between 10 and 20 per cent of the vote, and some local councils are elected on as low as 4 per cent of the vote.

The statements around it being some sort of democratic deficit ignore that the proposed model in this bill enshrines community level representation along with community level consultation on policies and procedures. Proposed joint regional planning boards also provide leverage for communities to have greater accountability over matters that they might not otherwise have. The bill will enhance rather than diminish the democratic process.

Based on the examples discussed, the community concerns quoted by the expert panels and the concerns of others appear well founded. If the development assessment decisions were made by accredited professionals, members of panels with the skills and experience needed, it is likely such matters would result in better outcomes for all. The expert panel advised that communities and investors need to be confident that the projects are assessed impartially and dispassionately. Members, I think, would do well to support the move to depoliticise completely the assessment decision as per the panel's reform recommendations and take the next steps towards independent professional assessment.

I urge members to focus on the principles of this bill, including that those who govern the establishment and operation of the Community Engagement Charter and e-portal will enshrine through those the public principles of engagement and participation, that these are not ideas invented by the government, that they grow out of the expert panel's recommendations, that these principles will be used to work with the community to redesign an efficient streamlined planning system that will help and facilitate appropriate development and that depoliticisation of the development assessment panels is a critically important step in delivering this reform.

The Hon. M.C. PARNELL: I need to correct something that the minister said before I proceed. He said that he thought this would be a test clause for the question: should there be elected members on panels or not? That is not the case. If this amendment is defeated, all of the other options, including the Greens' option, for having up to two elected members are still on the table.

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: As the minister says, if this one goes down then it is hard to believe—

The Hon. K.J. Maher interjecting:

The Hon. M.C. PARNELL: Well, I hold great faith that the opposition will see reason. They have called this a compromise, but I think that they have cold feet and I think they have sold out. Let me just say a couple of things about the minister's contribution. He referred to what I call the tales of woe. He describes it, the Hon. Dennis Hood does as well, as various planning decisions that appear to defy belief, but what you have to realise is that any of these decisions that were made in the last five years could not have been made by elected members alone on panels because elected members are already in a minority on panels.

Therefore, if there are these crazy decisions that have come out, there is no evidence that it was actually the elected members on the panel who made them. It might have been the elected members were the ones who saw reason and it was the appointed experts who made the crazy decisions. In any event, even if it was the elected members, they must have had some support from the independent chair or one of the other experts. It just defies logic to say that in terms of causation, there are elected members who are on these panels, the panel made a bad decision, therefore it must be the elected members' fault. There is absolutely no evidence that that is the result.

The elected members on panels to whom I have spoken often talk about how no-one votes as a block; they look at the merits of the development application that is before them, they judge that application against the planning rules, in particular the Development Plan, and they make a decision. It is not a question of a solid block of councillors controlling the outcome—they are a minority. I am proposing that they remain a minority. That is the status quo, that is what the Local Government Association has been campaigning for for the last six months or so.

When the Hon. David Ridgway's amendment was filed, I took the opportunity of doing a quick poll of elected members of councils. I wrote to them all and asked them what they thought. The response that came back was around 85 per cent to 15 per cent in favour of sticking with the LGA's model, that is, having elected members as a minority on panels. My amendment does not guarantee that there will be two, just as the Hon. David Ridgway's amendment does not guarantee that there will be one. It is 'up to one' and does not guarantee there will be. Mine is 'up to two' of the five, but does not guarantee that there will be two. If a local council thinks it will get the best outcomes by not appointing any elected members, then that is what they will do. But at least we keep the door open.

The minister used the word 'depoliticise' on a number of occasions. There is an inherent illogic in the minister's assessment here. He seems to assume that, because a person fulfils a role because they were democratically elected, they must therefore be incapable of making any decision other than on purely crass political grounds. This idea of depoliticising means that these elected members cannot be trusted to make a decision according to proper planning principals because for their sins they happen to have been elected to a local council.

I have heard the government say this time and again. I do not accept it, but as a concession to the government when I worded my amendment I said to keep the status quo: up to two elected members can be on a local assessment panel, but they need to know something about planning. So the words 'having a knowledge of or experience in planning and development' were designed to give some comfort to the government that these people whom the councils put forward to be on these panels will not just be pure politicians. They will not, as in the Liberal amendment, just have knowledge of local government; they will have knowledge of or experience in planning and development. They do not have to have worked in the development industry.

What I had in mind was that they did the LGA course. The LGA is committed to the training of elected members for the different roles that they perform. The LGA has a short course you can attend, which is planning 101, and it explains to these councillors serving on panels that, when they are wearing their panel hat, they are not their local ward representative. It is not their job to decide these development applications as a popularity contest. Their job, when they serve on a development assessment panel, is to assess the application against the planning rules.

I have to say that, overwhelmingly, the elected members get it. They know their role, and all of us have heard elected local councillors having to explain to their constituents, 'Look, I'm sorry I supported this development that you didn't like, but when I did my job, when I assessed this project against the planning scheme, it stacked up, so we had to approve it.' Elected members are having that conversation with their constituents all the time.

Let us really cut to the chase of this politicisation. The government is really pretending to depoliticise local government, but by the same token the decision-maker for some of the most important developments in this state is the minister. Will the minister be some sort of independent, fair-minded person or will the minister do what ministers always do, and that is to toe the government line? If the government supports a project, the minister will be approving that project.

What they are really saying is, 'We want to depoliticise to remove any possibility of a local councillor maybe acting politically, but no way are we going to depoliticise the role of the minister.' The government will say, 'But, hang on, we've just incorporated a whole lot of amendments which require consultation with the commission.' I am afraid that does not cut it. For the most important developments in this state the minister is the decision-maker and will make political decisions, decisions on major projects, minister's decisions, they will be political.

The reason why I think having a maximum of up to two is better than having just up to one is that that system has worked in the past. It is not responsible for the tales of woe that have been described because mathematically it cannot be. It cannot be the fact that you have councillors on panels that says why you sometimes get odd decisions. I think we should stick with the status quo.

I do not think we should sell our elected members of local government short. I think we can understand that they will appreciate the different role. If they do not already have experience, then the council will send them off to training to make sure they know what their job is when they are sitting on this assessment panel. The Greens are not going to support the Hon. David Ridgway's compromise because we think that it just sells local councils short. We will not be supporting it, and I make the point I did earlier: the option is still open for the council to support the status quo, and they can do that when we get to the next amendment.

The Hon. J.A. DARLEY: First of all, I thank the minister for his comprehensive explanation and reasons given for elected members not being on panels. For those very same reasons, I will not be supporting the opposition's amendment.

The Hon. D.G.E. HOOD: I think Family First's position has been known for some time, and we will not be supporting the inclusion of elected members on the development assessment panels either. There is a multitude of reasons for that. I think the minister explained it well in his contribution a few moments ago. I take the Hon. Mr Parnell's point that you cannot point your finger at those individuals at the moment because they are currently minorities of the panels and therefore only partially responsible or responsible up to a minority extent of the decision, if you like, so he is quite right about that.

I still think that the reality is that there are pressures on elected members. As elected members, we know that ourselves. When we are approached by constituents, particularly in larger numbers, there is pressure on all of us as elected members to be aware of the input of those constituents, and I think even more so at a local government level. We know that it takes approximately 83,000 first preference votes for one of us to get elected to this chamber, so it is very unlikely that a substantial number of people would approach us on any one issue—that is, several thousand, and that would be a significant number of the quota required to be elected here.

However, in the case of local governments, we know that councillors in some councils are elected literally on 100 votes, or even fewer in some cases. So, what you can get is two families or two groups of people, or something like that, constituting 20 or 30 people (or thereabouts) who would have a very significant impact on the thinking of that individual. I am not trying to impugn any of those individuals. You would hope, I think as the Hon. Mr Parnell says, and probably rightly, that they are able to see beyond that, that they are able to separate the politics from the decision-making, but there is no certainty of that. Not having elected members on these panels creates certainty.

I think the other thing that is important here is that a number of the elected members themselves do not want to be on the panels. I have a couple of emails here from elected members—I have others, but these are two that the chamber might find of interest—arguing against elected councillors being on development assessment panels. The first one is from a gentleman by the name of Trevor Quast. I do not know Mr Quast, but he is an elected member of the Loxton Waikerie Council. He says:

Good afternoon,

As an elected member of the Loxton Waikerie Council I most strongly support the Govt's stance and do not support elected members serving on Development Assessment Panels.

I can only speak for the LW Council but the sooner powers re planning are reduced or removed will not be soon enough.

That is his contribution, and then there is another one from a person I do know, Councillor Robert Randall from the Charles Sturt Council. He is actually deputy mayor at the moment. I have known Bob, as we call him, for some time. He has written to me, and he said:

From my experience the political role exhibited [in local politics] by elected members on the current Development Assessment Panels-DAP, negates them from having any role in decision making re planning applications. As I understand the new legislation all elected members have a role to play in the formulation of planning policy specific to their Council areas—

That is at the early stage, he is suggesting—

and then the members of the DAP implement that policy.

Councillors playing local politics on DAP where Planning policy has already been determined is a return to the current confusion and delays.

There is NO ROLE for Councillors on the new DAP [system].

I think when councillors themselves are writing to us—obviously, there are many others with a very different view, and I accept that—we need to pay heed to the fact that there are some councillors out there who have seen problems with elected members being on these panels, and they do not support it. For that reason and for those I have outlined, and for the reasons outlined by the minister, neither does Family First.

Amendment negatived.

The Hon. J.A. DARLEY: I will move both of my amendments at the same time and speak to them together.

The ACTING CHAIR (Hon. J.S.L. Dawkins): No, just the one.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 67, lines 19 and 20—Delete paragraph (d) and substitute:

(d) a person is not eligible to be appointed as a member of an assessment panel if the person—

(i) is a member of the Parliament of the State, or has been such a member within the preceding 2 years; or

(ii) is a member of a council, or has been such a member within the preceding 2 years; or

(iii) is an officer or employee of a council, or has been an officer or employee of a council within the preceding 2 years;

This amendment is very simple. It prohibits council employees from being a member of a development assessment panel. This is not limited to the DAP for their council, but includes DAPs for any council. The amendment also includes a preclusion period of two years from the individual cessation of employment by a council.

I support the Attorney-General in precluding elected members from sitting on DAPs; however, I do not believe it goes far enough and have therefore moved this amendment to exclude council staff too. I think this is a sensible amendment, especially when it comes to council staff sitting on the DAP of their own council. It would be entirely inappropriate for council staff to sit on the DAP of their employer, as they may have worked on matters which are presented before the DAP for consideration.

Whilst this may not be problematic, transparency and independence of the DAP will be increased if staff are precluded from membership. I hold concerns over relationships between councils and therefore have extended the exclusion across the board so that no person employed by any council can sit on any DAP. Just as exclusion periods apply for former members, ministers and public servants from becoming a registered lobbyist, a two-year exclusion period has been applied to my amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Just to clarify for the Hon. Mr Darley, the other amendment you referred to is in clause 79, so we will have to leave that until we get to clause 79.

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

Amendment No 54 [Parnell–1]—

Page 67, lines 19 and 20—Delete paragraph (d) and substitute:

(d) no more than the prescribed number of members of an assessment panel may be persons who are members of the Parliament of the State or members of a council;

We are agitating this issue, and my amendment, as I have said, is to keep the status quo. My amendment No. 54 is a test for my amendment No. 55. My amendment No. 54 basically says that no more than the 'prescribed number of members of an assessment panel' can be a councillor, and my next amendment goes on to say that 'prescribed number' means less than half. So, that is effectively the status quo.

At present, three elected members is the maximum out of a panel of seven. I am proposing a maximum of two out of five. I will make the point again, though, that the job of appointing people to these panels is that of the council. If the council has five people who are not councillors—or even, in terms of the Hon. John Darley's amendment, are not former councillors, staff, or anyone else—the council can appoint those people.

I do not want to close the door, on ideological grounds, by saying that someone is deemed incapable and incompetent of serving simply because they have been or are an elected member. In terms of the Hon. John Darley's amendment, from talking to the Local Government Association my understanding is that the number of council staff planning officers who serve on panels, whether it is in their own council area or others, means that—and the minister may well have some comments on this—if you were to preclude those people, you would actually decimate the ranks of these panels. A large number of people are professional planners who either work for councils or have worked for councils. You would find that the pool of people available to serve is very much reduced, which is why I do not think the Hon. John Darley's amendment is the way to go.

My amendment is for the status quo. It is a maximum of two, but it does not mean there will be two. There could be less than two, there could be one or there could be none. This is a key threshold issue. Certainly, we will see how the numbers go as we call it, but I will be voting against the Hon. John Darley's amendment, urging people to vote for my amendment and, if my amendment is not successful on the voices, I will be dividing.

The Hon. K.J. MAHER: As I previously outlined, I can indicate that the government will not be supporting the Hon. Mark Parnell's amendment. It is at odds with the expert panel's recommendations that are based on a lot of consultation about reform of the planning system. For reasons that were given in the quite extensive remarks I made earlier about the absolute importance of depoliticising the assessment panels in the planning system, I can indicate that the government will be supporting the amendment proposed by the Hon. John Darley.

The Hon. M.C. PARNELL: A question to the minister: how many current members of development assessment panels will be made ineligible as a result of the Hon. John Darley's amendment?

The Hon. K.J. MAHER: I do not have those figures. I can certainly see if they can be ascertained and brought back, but I do not have those figures right here and right now.

The Hon. D.G.E. HOOD: I indicate that Family First will also be supporting the Hon. Mr Darley's amendment.

The Hon. D.W. RIDGWAY: I was having a conversation with our shadow minister, but we have two sets of amendments: the Hon. Mark Parnell's amendments that have been moved and the Hon. John Darley's amendments that have been moved. As I indicated earlier, we would not be supporting the Hon. Mark Parnell's amendment. As I said, we thought we had a compromise of up to one member. It is not the opposition's view that we should have up to two local government members elected to the development assessment panels. I also indicate that we will not be supporting the Hon. John Darley's amendment, that is to obviously preclude a whole range of extra people from the panel.

It is interesting that the Hon. Mark Parnell asked a very good question: how many members will be excluded who are currently on development assessment panels? I would hope that the minister is able to give us an answer because they are supporting something when they do not really know what the impact of that may be. We will not be supporting either of the two sets of amendments that are before us.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The first question I will be putting is that paragraph (d) stand as printed. Given that there are at least two people who are moving to change paragraph (d), I think it is fairly clear what they will be doing on that question. The question is that paragraph (d) stand as printed.

The Hon. D.G.E. HOOD: I think it would serve the chamber well if we had this discussion in the open so that we can understand what process we are referring to.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I am trying to facilitate the minister at the moment, but I understand that it would be useful for the committee if we did not have a group of members standing on the floor down here. We will get it sorted shortly. I call the minister to clarify the situation.

The Hon. K.J. MAHER: To clarify, we are now voting on the clause as it stands. If that vote fails we will then move, as I understand it, on to the amendments: the Hon. Mr Darley's amendment first and then the Hon. Mr Parnell's amendment.

The Hon. D.W. RIDGWAY: For clarification, what you have proposed, Mr Acting Chair, is that this stand as printed; if that fails, that clause is gone, disappears.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We will then deal with the amendment from the Hon. Mr Darley.

The Hon. D.W. RIDGWAY: So effectively we could delete this clause and then also not support either of the two amendments and have nothing to replace it.

The Hon. M.C. Parnell: And we would have to recommit.

The ACTING CHAIR (Hon. J.S.L. Dawkins): That is possible, but we do have a proposition that new words be inserted, that new paragraph (d) be inserted. That is something we are going to have to go through the process of. My advice is that if, in the course of democracy in this chamber, we ended up with nothing in (d), we could recommit that and put something back.

The Hon. M.C. PARNELL: In the interests of getting all this on the record, I think the assessment has been correct so far. If the vote that the clause stand as printed fails, the clause goes. If the Hon. John Darley's proposed replacement does not succeed and if my proposed replacement does not succeed, then paragraph (d) has disappeared.

The act survived just fine without paragraph (d), but people need to realise that the implication of paragraph (d) going is effectively the status quo, with the exception that there would be no limit, I guess, on the number of elected members. If paragraph (d) goes altogether, potentially the council could appoint all of the five as elected members, which no-one is really calling for, but that would be the outcome. As the Clerk has intimated, recommitting may well be the option, but I stand enthusiastically putting my amendment to the committee, and I hope it succeeds.

The Hon. D.G.E. HOOD: Just for the record, I will read out paragraph (d):

a person who is a member of the Parliament of the State or a member of a council is not eligible to be appointed as a member of an assessment panel;

I indicate for the record that Family First will be supporting it standing as printed.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The question is that paragraph (d) stand as printed.

Paragraph negatived.

The committee divided on the Hon. J.A. Darley's amendment:

Ayes 9

Noes 10

Majority 1

AYES
Brokenshire, R.L. Darley, J.A. (teller) Gago, G.E.
Hood, D.G.E. Hunter, I.K. Kandelaars, G.A.
Maher, K.J. Malinauskas, P. Ngo, T.T.
NOES
Dawkins, J.S.L. Franks, T.A. Lee, J.S.
Lucas, R.I. McLachlan, A.L. Parnell, M.C. (teller)
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G.
PAIRS
Gazzola, J.M. Lensink, J.M.A.

The Hon. M.C. Parnell's amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 34 [Emp–4]—

Page 67, after line 33—Insert:

(i) in the case of an assessment panel appointed by a council—the council must substitute the existing members of the panel with new members if directed to do so by the Minister acting on recommendation of the Commission under section 80A.

As noted during previous debate on local assessment panels, this amendment also has arisen out of discussions with the LGA. It reflects a proposed new requirement in clause 79(1)(d) and new clause 80A of the bill that the minister may constitute a local assessment panel to replace the members of a panel appointed by a council but only on the recommendation of the commission and retaining the existing requirement that this may only occur where the panel has consistently failed to comply with requirements of the act.

Notably, clause 80A will further require the commission to conduct an inquiry and consult with the council in determining whether to recommend to the minister, or indeed the council itself, to appoint a local assessment panel.

The Hon. M.C. PARNELL: The Greens will be supporting this amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the government's amendment.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Amendment No 10 [Ridgway–1]—

Page 67, after line 33—Insert:

(1a) Subsection (1)(c) does not apply if—

(a) the person is a member, or former member, of a council; and

(b) the designated authority is satisfied that the person is appropriately qualified to act as a member of the assessment panel on account of the person's experience in local government.

I have taken some advice from the Clerk and I thank her for that advice. This amendment seeks to insert a new subclause (1a). I think it has been somewhat confusing with the earlier amendments that have been moved and lost but the advice I have received is that this amendment is still live, if you like, and current.

It appears all five members now can be members of the development assessment panel, so this amendment says that the council has to be satisfied that the person or persons are appropriately qualified to act as a member of an assessment panel on account of the person's experience in local government. It is making sure that all five appointees to the panel, if they are members of local government, have adequate experience. I expect we will see some recommittal on previous clauses when we get to the end of the bill, but I urge members who have any interest—and I look towards the Hon. Mark Parnell—in having local government represented on development assessment panels to support this amendment.

The Hon. M.C. PARNELL: I will not reagitate why I thought that the test ought to be slightly different in terms of having knowledge of and experience in planning and development, but in the interests of progressing the debate today, given that we have now deleted the notorious paragraph (d) which means that there is now no prohibition at all on elected members being on panels, I think we are going to have to recommit that. We are going to have to recommit the question: if there are to be, what qualifications they should have? But in the interests of progressing this, we will support the Liberal amendment for now and I guess we will be back later revisiting it.

The Hon. K.J. MAHER: In relation to the opposition's amendment, the government will support the amendment but because of the non-success of the last clause. I think as both the Hon. David Ridgway and the Hon. Mark Parnell have indicated there is a very good chance this will be reagitated as we have just discussed. There is a very good likelihood of that being recommitted at which time this may have work to do although it does not now.

Amendment carried.

The CHAIR: We now move to amendment [Parnell-1] 55.

The Hon. M.C. PARNELL: For the record, the previous amendment I had, [Parnell-2] 2, was an alternative set of words to the one that the Hon. David Ridgway moved but, given that his set of words passed, I was not invited to move mine. I point out that we will reagitate the question about what the qualifications should be if there are to be elected members on panels.

My amendment No. 55 I think is now redundant because it is the clause that set the maximum number of members of council who could serve on these panels as up to one less than half, in other words, two out of five. We have already agitated that issue, so I will not be pursuing the amendment.

Clause as amended passed.

Clause 79.

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

Amendment No 56 [Parnell–1]—

Page 68, lines 21 to 25—Delete subsubparagraph (B)

Clause 79, panels created by the minister, as opposed to panels created by councils: my amendment No. 56 proposes to delete subsubparagraph (B), which says:

(ii) the Minister may constitute a regional assessment panel if—

(B) the Minister has, after seeking the views of the relevant councils, determined that it is appropriate in the interests of orderly and effective development assessment that a regional assessment panel be constituted in relation to the areas of 2 or more councils (or parts of such areas);

The reason I am seeking to delete that clause is that I do not believe that regional assessment panels should be imposed against the will of councils. The only obligation here is that the councils be consulted, but they then can effectively be precluded from having their own panels and having a regional panel forced upon them. I will check in a second, but I understand that was one of the Local Government Association's recommendations.

The Hon. K.J. MAHER: I rise to indicate that the government opposes the amendment put forward by the Hon. Mark Parnell. Councils will be invited, not forced, to establish the joint planning boards. They will be invited, not forced, to enter into a joint planning agreement instead of a joint planning board. That board will then be entrusted to administer the planning system fairly and impartially.

In the unlikely event this does not occur, the Minister for Planning is the appropriate person to have the final say and to be able to constitute a regional panel as needed. The minister may only do so after seeking the views of relevant councils and in the interest of orderly and effective development assessment. The minister of the day would need sound reasons for the exercise of such a power, which would be subject to both the criticism of the parliament and the public if it were not exercised properly.

The Hon. D.W. RIDGWAY: Reading the clause from which we are deleting subsubparagraph (B), which, as Mr Mark Parnell read out, says:

(ii) the Minister may constitute a regional assessment panel if—

(B) the Minister has, after seeking the views of the relevant councils, determined that it is appropriate in the interests of the orderly and effective development assessment that a regional assessment panel be constituted in relation to the areas of 2 or more councils…

Certainly in some of our regional areas, and we do represent a large part of regional South Australia, regional assessment panels have been something that the opposition have supported for some time, because if you get complex matters, it is important to have the best possible knowledge on that panel.

Certainly, the opposition will not be supporting the Hon. Mark Parnell's amendment. The minister has to seek views, and if he determines it is appropriate—and I am sure that if the minister is trying to force something on a region or two or more councils that is against their will, there will be some sort of public outcry from those councils. We think that it is not a sensible amendment from the Hon. Mark Parnell and are happy to support the status quo.

The Hon. M.C. PARNELL: Just to confirm the veracity of what I said before, I am just having a quick look at the Local Government Association submission, and they support the deletion of this paragraph. They say, 'The Minister should not have the power to establish a regional assessment panel unless this has been requested by the Councils involved.'

I take the Hon. David Ridgway's point that there may well be hell to pay in the local newspaper: a very fleeting degree of pain for the councils effectively losing their local panel and being compulsorily added to a regional panel. But, like the honourable member, I agree: regional panels I think make a lot of sense in a lot of areas. The question is: should they be imposed against the will of councils, or should councils be encouraged to work cooperatively with other councils and establish these panels? I maintain that this paragraph should be deleted, as requested by the Local Government Association.

Amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 35 [Emp–4]—

Page 68, lines 26 to 32—Delete paragraph (d) and substitute:

(d) in relation to a local assessment panel—the Minister may only constitute a local assessment panel if the Minister is acting on the recommendation of the Commission under section 80A;

This amendment is related to the previous amendment to clause 78, as previously discussed, on local assessment panels and clarifies the minister may only dismiss a council panel and reappoint when acting on the commissioner's recommendation.

The Hon. M.C. PARNELL: We support the amendment.

The Hon. D.W. RIDGWAY: Likewise, the opposition will be supporting the government amendment.

Amendment carried.

The Hon. D.W. RIDGWAY: I move:

Amendment No 2 [Ridgway–7]—

Page 68, line 36—After 'members' insert:

, provided that only 1 member of the assessment panel may be a member of a council

This amendment brings us back to what the opposition wants in the bill, if of course we have the support of any of the crossbenchers. Effectively, paragraph (d) was lost earlier, but this will give the government some indication, I suspect, if this is supported. It is really up to the Hon. Mark Parnell, the Hon. Kelly Vincent and the Hon. Tammy Franks to vote with the opposition and support this amendment to allow 'one member of the assessment panel may be a member of a council'.

The Hon. M.C. PARNELL: Clause 79 is very different from clause 78. Clause 78 is about assessment panels that are created and populated by the council. Whilst the current planning minister retains the portfolio, the Hon. David Ridgway's amendment has no work to do. I do not see the current Minister for Planning appointing any elected members to his panels. My preferred position is to maintain a level of consistency, and that is that if panels appointed by councils can have up to two elected members, why should not panels appointed by ministers? I am prepared to accept, in this limited instance—not to be taken as a precedent for any further discussion on clause 78, but certainly in relation to clause 79—that the minister will ultimately appoint whomever the minister wants to appoint.

It is an important principle that elected members not be precluded, so the Hon. David Ridgway's amendment does do that. It limits it to one member, which I think is selling councillors short. But, in the interest of proceeding with this, and bearing in mind that, as I said, the clause will have very little work to do, maybe a future planning minister might decide that the breadth of talent amongst the elected members of local councils is such that a future planning minister might regret that this council has limited the number of councillors to be on these panels to one.

Certainly, for present purposes, the Greens will support this amendment—that the number of elected councils who are eligible to serve on a panel appointed by the minister should be limited to one. As we say, it will not have much work to do, but in the interest of progressing debate on the bill, we will support that for now.

The Hon. K.J. MAHER: The government, not surprisingly, opposes this amendment. It is the government's view that we do not support the appointment of council members per se.

The Hon. D.G.E. HOOD: Neither does Family First.

The Hon. J.A. DARLEY: I will not be supporting the amendment.

The committee divided on the amendment:

Ayes 10

Noes 9

Majority 1

AYES
Dawkins, J.S.L. Franks, T.A. Lee, J.S.
Lucas, R.I. McLachlan, A.L. Parnell, M.C.
Ridgway, D.W. (teller) Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES
Brokenshire, R.L. Darley, J.A. Gago, G.E.
Gazzola, J.M. Hood, D.G.E. Kandelaars, G.A.
Maher, K.J. (teller) Malinauskas, P. Ngo, T.T.
PAIRS
Lensink, J.M.A. Hunter, I.K.

Amendment thus carried.

The CHAIR: We move now to Amendment No. 3 [Parnell-2], clause 79, page 65.

The Hon. M.C. PARNELL: This does cause us some difficulty. I will explain that when I first proposed this I noticed—

The Hon. D.W. Ridgway: Which clause is this?

The Hon. M.C. PARNELL: The same clause, panels established by the minister. When I went through the different bodies that were able to make development assessment decisions, I noticed that this concept of accredited professional was something that was inherent in the panels that the council has to establish—they all had to be accredited professionals—but, when it comes to the minister appointing people, they did not have to be accredited professionals. To make them consistent, I thought that we should put that extra obligation on the minister.

The problem we now have is that, now having the left the door open for elected members to be part of ministerial appointed panels—and I think there was a general acceptance, certainly from the Liberal and Green parties—the elected members do not need to be accredited professionals; they have a different skill set which they bring to the task. I am in a bit of a bind because, if I was to insist on my amendment, I think I would be effectively insisting on the one elected member, who may or may not be appointed to the panel, being an accredited professional, which was not the intention.

Having said that, I do not think the minister is going to appoint any local council members, and I do want the ones he does appoint to be accredited professionals. My gut feeling is that we may have to revisit this clause. The only alternative would be an amendment on the run, and it would be something like, 'A person appointed as a member of an assessment panel must be an accredited professional, unless that person is also an elected member of a council,' or something like that. I am a bit loath to do more than just add a comma or a word here and there. I think that is getting into the too-hard basket.

I do want to keep this issue alive, but I think that I will best achieve that by not moving the amendment now. However, when we do recommit this clause, as we inevitably will, I would like to reagitate that issue then. I think I am bowing out for now and I will not be moving my amendment No. 3 in [Parnell-2].

The CHAIR: The Hon. Mr Ridgway, you have the same amendment; it is amendment No 1 [Ridgway-6].

The Hon. D.W. RIDGWAY: Again, it looks like it is exactly the same amendment, doesn't it?

The CHAIR: It is.

The Hon. D.W. RIDGWAY: Yes, so clearly this clause will be recommitted. I think that if the Hon. Mark Parnell is not moving his it would be silly for us to move ours, and we will address that when the clause is recommitted.

The CHAIR: The next amendment is the Hon. Mr Darley's amendment No. 2. The Hon. Mr Darley, your amendment No. 2 [Darley-1], you are not proceeding with that?

The Hon. J.A. DARLEY: No.

The CHAIR: The Hon. Mr Parnell, your amendment No. 8 [Parnell-1].

The Hon. M.C. PARNELL: Amendment No. 58?

The CHAIR: Yes.

The Hon. M.C. PARNELL: I think we do need to pass that amendment because if we do not, in relation to the amendment the committee has already agreed to—that is, that at least one or possibly one member of this panel appointed by the minister might be a local councillor—it is inconsistent to keep a paragraph in this clause which says 'a person who is a member of a council is not eligible to be appointed'. What we have already agreed to is entirely inconsistent, so I put the amendment and I would urge members to consider it as consequential. I move:

Amendment No 58 [Parnell–1]—

Page 69, lines 5 and 6—Delete paragraph (f)

The Hon. D.W. RIDGWAY: As the Hon. Mark Parnell rightly points out, we have recently divided on having a member of council as a member of the panel. In that instance, as I said, I expect that this will be recommitted and that there will be some sort of finetuning of this clause, but we cannot be inconsistent with what we have just divided on so the opposition will be supporting the amendment.

The Hon. K.J. MAHER: We will not be inconsistent either and we will oppose the amendment.

The Hon. J.A. DARLEY: I will be opposing the amendment.

The Hon. D.G.E. HOOD: Us, too.

Amendment carried.

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

Amendment No 59 [Parnell–1]—

Page 69, lines 12 to 14—Delete paragraph (i)

This is a stand-alone provision. It is basically to remove paragraph (i), which reads:

(i) the costs associated with the activities of a local assessment panel will be the responsibility of the relevant council and may be recovered from the council by the Minister as a debt.

I think the reason why that is an unfair provision is that these are panels that are established by the minister: they are not councils established by the council. I think we are all agreed that the panels established by the councils, the councils are responsible for paying for them. If you have elected members on a panel, they come for free and you do not have to pay them at all, but the outside people you have to pay for.

The situation we have here is that you could have the minister imposing a panel on a council that is not of the council's choosing, and yet the minister makes the council pay for it. It is sort of a no taxation without representation principle, and that is why I think this paragraph (i) is best deleted.

The Hon. K.J. MAHER: I indicate that the government does not support this amendment. We have discussed the merits of this issue previously in terms of what the costs can be recovered for. The amendment would remove the ability of the minister to recover from the relevant council the costs associated with the local assessment panel convened to replace the council-appointed assessment panel that has consistently failed to comply with the act.

The government opposes the amendment. Given the government's amendments 35 and 36, requiring the commissioned recommendation and greater council involvement in the process, it is reasonable that the council meet the costs of the new panel. The council would have been responsible for the costs of the original council-appointed panel in making the assessment decisions in any case, and the council should remain accountable for the costs associated with any replacement panel appointed by the council or the minister in making the same decisions. So, the government will oppose the Hon. Mark Parnell's amendment.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be opposing the Hon. Mark Parnell's amendment. Certainly, given that the previous amendments that the minister has considered where the commission has a greater say and the minister must consult with the commission and the commission must consult with the council in the establishment of these panels, we think it is only fitting that it is a user pays system.

The Hon. Mark Parnell is saying that people should not be asked to pay for something when the elected members come for free, and the council should not be asked to pay for something that perhaps they do not want. At the end of the day, as I think I mentioned earlier, if this is an outrageous charge, something that is done against the will of the council, in this modern world we live in where the media is readily available to people and there are direct lines to members of parliament for council and councillors to air their grievances, I am sure that if there were any real problems with this the parliament would hear about it. For those reasons, we do not support the Hon. Mark Parnell's amendment.

Amendment negatived.

The Hon. M.C. PARNELL: I have taken some advice that [Parnell-2] 4 really is consequential on the issue we have agitated before. As a number of us have said, we will be recommitting this clause, so we will deal with the qualifications of members of these panels later, so I will not be proceeding with this amendment now.

The Hon. D.W. RIDGWAY: I also will not be proceeding with my amendment [Ridgway-6] 2.

Clause as amended passed.

Clause 80 passed.

New clause 80A.

The Hon. K.J. MAHER: I move:

Amendment No 36 [Emp–4]—

Page 69, after line 37—Insert:

80A—Substitution of local panels

(1) If the Minister has reason to believe that an assessment panel appointed by a council has consistently failed to comply with a requirement under this Act, the Minister may request the Commission to conduct an inquiry under this section.

(2) The Commission, in conducting an inquiry—

(a) must consult with the relevant council; and

(b) may undertake such other investigations as the Commission thinks fit.

(3) The Commission may, at the conclusion of the inquiry—

(a) recommend to the Minister—

(i) that the Minister issue a direction under section 78(1)(i); or

(ii) that the Minister appoint a local assessment panel under section 79(1)(d); or

(b) advise the Minister that no action is warranted in the circumstances of the case.

(4) In connection with subsection (3)—

(a) the Commission may only make a recommendation under subsection (3)(a) if satisfied that the assessment panel appointed by the council has consistently failed to comply with a requirement under this Act; and

(b) if the Minister acts on a recommendation under subsection (3)(a)(ii), the assessment panel appointed by the council will be removed by force of this provision (and a local assessment panel appointed by the Minister will be substituted).

This amendment is related to previous amendments to clauses 78 and 79, and has been discussed in detail. It expressly provides that the commission, in formulating recommendation to the minister to remove and reappoint an assessment panel appointed by council, is required to consult with the relevant council.

The Hon. D.W. RIDGWAY: We have talked about how this is an amendment that has been foreshadowed—new clause 80A—and we indicated we would be supporting that amendment.

New clause inserted.

Clause 81.

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

Amendment No 5 [Parnell–2]—

Page 70, line 9—Delete subparagraph (ii)

This amendment follows a theme of several amendments, which is trying to get some consistency in the qualifications of people who are largely doing the same type of work. We have already had a bit of a discussion about accredited professionals who should be on panels, but you also have this other category of decision-maker called 'assessment managers'. The qualification for an assessment manager under clause 81, paragraph (b), is that they have to be either an accredited professional or 'a person of a prescribed class'.

I have sought to delete that 'person of a prescribed class', on the basis that people who are doing the same sort of work should have the same sort of qualifications. I know both the Hon. David Ridgway and I have made an exception for elected members, because it is a different skill set they bring, provided, in my view, that they do understand about the planning system, but we have no idea who persons of a 'prescribed class' will be.

I have not had the case made to me as to why a person who is holding such a senior position as assessment manager should not at least have the same sort of qualifications as other council planning staff who are accredited professionals who will also be making decisions. I am seeking to remove that 'person of a prescribed class', which basically means that an assessment manager must also be an accredited professional.

The Hon. K.J. MAHER: The government opposes this amendment. It may create limitations and problems, particularly for smaller councils, and not give them the flexibility that they may need.

The Hon. D.W. RIDGWAY: I seek some clarification. 'A person of a prescribed class' would that allow a regional chief executive or a senior officer to be appointed to those panels?

The Hon. K.J. MAHER: Depending on what is prescribed in the regulation, it could do that.

The Hon. D.W. RIDGWAY: Following on from what the minister has said, I assume that means that in any small councils or regional areas that you are actually making the talent pool a bit smaller. Based on that information from the minister, I indicate that the opposition would have to vote against the Hon. Mark Parnell's amendment if his amendment would preclude those people from being appointed.

The Hon. M.C. PARNELL: We will go back to first principles. Part 6 of the act is 'Relevant authorities', and clause 77 is headed 'Entities constituting a relevant authority'. Who is on that list? In other words, the shorthand is, these are decision-makers. Who are the decision-makers? The minister, the commission, the assessment panels, whether it is a joint planning board or a council, assessment panels appointed by the minister.

You go down the list, and who else are these relevant authorities? An assessment manager is on the list. Look at clause 81: what do assessment managers do? They act as relevant authorities; they can make planning decisions. If they can make planning decisions, why should they not be an accredited professional? The government has gone to great lengths to create this system.

With this issue of whether a CEO or whatever might be ineligible, we have not seen the accredited professional regime; the government has not written it. When the government writes the accredited professional regime, they might say, 'Must be a certified planner of a CEO of a council.' They can write whatever they want. I guess the point I am making is that it seems inconsistent to have two sorts of pathways for someone to achieve the status of an assessment manager.

Given the importance of the role, and given that they are making exactly the same sorts of decisions as other relevant authorities, I think they should be an accredited professional, and if the government thinks that that is going to limit the pool, it can expand the definition of 'accredited professional' to make sure it covers all the people who they think are appropriate to be making these types of decisions. I am sweating the small stuff here a little, I guess, but I am making the point that the government needs to be consistent. If they want us to honour their accredited professional system, then they should at least consistently apply it to all of the people who are going to be making decisions under the act.

The Hon. D.W. RIDGWAY: I want some more clarification from the minister. I often said this to the Hon. Paul Holloway years ago, 'Give us a look at the regs so we can see what we're really talking about.' I know they probably do not have that, but can the minister give us some indication of what is a 'prescribed class' of an assessment manager?

The Hon. K.J. MAHER: Yes, an example is that a chief executive of a regional council could fall into our 'prescribed class' and I think that was the example that the Hon. David Ridgway was using before. In a small regional council, 'prescribed class' could be a chief executive. The government says that is a much better way to allow that to happen than the Hon. Mark Parnell's suggestion of enlarging 'accredited professional' to include things that most people would not think the ordinary meaning might necessarily cover.

The Hon. D.W. RIDGWAY: My understanding of the amendment proposed by the Hon. Mark Parnell would be to remove 'a person of a prescribed class', so could you confirm for me, minister, that that would mean a person appointed as an assessment manager must be an accredited professional.

The Hon. K.J. MAHER: Yes, that would be the effect.

The Hon. D.W. RIDGWAY: Another point of clarification: do we have a definition of 'accredited professional' in the definitions in the act?

The Hon. M.C. PARNELL: To be determined.

The Hon. D.W. RIDGWAY: To be determined, so we—

The Hon. K.J. MAHER: That comes under the next clause, clause 82, which establishes an accreditation scheme. Again, the government's position is that, for instance, a CE of a regional council would be much better done by 'a prescribed class of person' rather than trying to somehow shoehorn and squeeze it in to 'accredited professional'. In the government's view, that does not sit nearly as comfortably or easily as 'prescribed class'.

The Hon. D.W. RIDGWAY: I expect we are going to be recommitting a whole part of this bill and I can see the government's position, and I can also the Hon. Mark Parnell's position, but maybe at this point in time we will not support the Hon. Mark Parnell. So the status quo remains, and if it becomes a solid, good argument as to how it can be addressed—given that we are uncertain of exactly what 'an accredited professional' is, or 'a prescribed class of person', we indicate we will not be supporting the Hon. Mark Parnell at this stage.

Amendment negatived; clause passed.

Clause 82.

The Hon. M.C. PARNELL: Whilst there might be no amendments to clause 82, the Hon. David Ridgway raised a legitimate question, that we do not yet know what the government has in mind in terms of the accreditation scheme, and so this is an appropriate opportunity to ask the minister, 'What do you have in mind?' Are we looking, for example, at (I think it is section 101) accreditation under the current system? Are you looking for people who are qualified planners, or are there are other disciplines that might qualify people to be regarded as an accredited professional? What does the government have in mind?

The Hon. K.J. MAHER: There is nothing completely settled, this will be determined, but there are different classes of professionals. The provision builds on and varies the existing registration scheme for private certifiers under section 91 of the Development Act and transfers the responsibility for the accreditation of professionals to the Commissioner for Consumer Affairs. It is our view that this will ensure greater oversight and monitoring of accredited professionals and increase confidence in the accreditation scheme and greater consumer protection. The exact operation is not settled yet, but that is the intention of this section.

The Hon. M.C. PARNELL: The accredited scheme, and it might be in here and I have missed it, but is there the ability for presumably whoever the accrediting body is to—whatever the opposite is to accredit—dis-accredit, unaccredit? That might be in here and I might have missed it, but if the minister could clarify whether: are you on this list forever, or do you have to, for example, undertake professional development to maintain your right to be on the list?

The Hon. K.J. MAHER: I am advised it is the latter; that is, that you can be dis-accredited. That is the advice.

The Hon. D.W. RIDGWAY: I was responding to a query from somebody upstairs in relation to the bill, but did we cover a list or a range of professions that would be—

The Hon. K.J. MAHER: No, that has not been—

The Hon. D.W. RIDGWAY: Has not been determined. When is that likely to be determined, and will that be the standard qualifications that exist in the profession?

The Hon. K.J. MAHER: I am advised it will be finalised during implementation. I can further add that, in terms of accredited professions, the main professions initially will be planning professionals and building surveyors.

The Hon. D.W. RIDGWAY: It is interesting the minister introduces the term 'building surveyor' because I recall that there are two levels of qualification in building surveyors, or standards as accredited. I do recall, and members around me may remember, there was some discussion around one of the Hon. Paul Holloway's advisers, a Mr George Vanco, and whether he was an accredited building surveyor or just a building surveyor. I forget, but there was certainly a difference between building surveyors for one storey and multiple storey buildings. After the Hon. Paul Holloway had read out a letter or made some comment that Mr Vanco in his office, I think, was an accredited building surveyor, I was contacted by the profession saying that, no, he was not accredited, he was just a building surveyor.

So, I guess the question I put is: will there be maximum qualifications for these accredited professionals, or will there be a range? It is a bit like: you will only be able to sit on a development assessment panel if you are an accredited professional, and according to the Hon. Mark Parnell the assessment panel may be as simple as an accredited professional making a decision. We need to be certain that the person making the decision has the actual qualifications, not just accreditation, under this act; actually has the proper qualifications to make that assessment.

The Hon. K.J. MAHER: That is a point well made. These will be matters for implementation but it may well be that within a class there is a level of accreditation needed within that particular class. I think that is the point the honourable member is making. However, these are matters for implementation.

The Hon. D.W. RIDGWAY: We have heard that the regs and rules, design codes and planning modules, will be two or three years; are we likely to see these things—and this may not really be the appropriate time to ask, but everybody is sort of happy in the service, and it is 20 to 6—in, if you like, volumes? Will some regs be tabled, or will they all be kept secret until the 2½ to three-year point, when everything is done and they will just be dropped in, gazetted? What level of consultation will take place with local government and the industry with the drafting of these regs?

The Hon. K.J. MAHER: When we progress further in the bill—hopefully very quickly—right up to clause 231A, it will outline government advisory committees set up for the implementation of the bill. I think it will go some way to answering the question.

The Hon. D.W. Ridgway: I do not think we will get to 231A tonight, but anyway—

The Hon. K.J. MAHER: We still have three-quarters of an hour; you never know.

Clause passed.

Clauses 83 to 86 passed.

Clause 87.

The Hon. M.C. PARNELL: Regarding my amendment No. 60 [Parnell-1], I think this issue has been agitated already. In a nutshell, I was opposing the idea of the minister imposing a local assessment panel over the council. Following advice from parliamentary counsel, this amendment is, as I thought, consequential to an amendment I have lost around the local assessment panels as opposed to the council-appointed assessment panels. It is consequential and it was lost earlier, so I will not be proceeding with that amendment.

Clause passed.

Clause 88.

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

Amendment No 61 [Parnell–1]—

Page 74, lines 5 to 7—Delete paragraph (h) and substitute:

(h) where—

(i) the minister is acting on a ground set out in subsection (2); and

(ii) the minister has prepared a report setting out detailed reasons, as they relate to a ground under subsection (2), for acting under this paragraph; and

(iii) the minister, by notice served on the proponent, has called the proposed development in for assessment under this paragraph.

We are now onto clause 88, which is the actual role of the commission as opposed to the role of the assessment panels. Clause 88 includes a list of the situations where the planning commission will be the relevant authority; in other words where they will be the decision-maker in relation to applications. You go through the list of all the circumstances where the commission is the relevant authority and you get down to (h). At present this provides that the commission will be the relevant authority:

where the minister, by notice served on the proponent, calls the proposed development in for assessment under this paragraph on a ground set out in subsection (2).

Subsection (2) sets out all of the reasons why the minister can 'unilaterally', I think is the word, take something away from another decision-maker and give it to the commission. They include things like if, in the opinion of the minister, the development is significant to the state. It is a pretty broad power.

Basically, if ever the minister wants the commission to be the decision-maker and wants to take the authority away from someone else or another panel—a local council panel, for example—then the minister has to use one of these criteria set out in subclause (2). It is quite a lengthy list which goes for most of the page. The point I make is that it is a fairly unfettered discretion. The minister just has to form the view that something is important enough to give to the commission, and it is given to the commission.

I have proposed an alternative paragraph (h) which, effectively, makes it a bit more accountable by requiring the minister to prepare a report setting out detailed reasons as to why the minister has chosen to call in the development. In other words, at present one of the faults with the current system is the unfettered ministerial discretion. In shorthand, if the minister reckons, it happens, and there is no obligation to actually set out why they are doing something. This proposes a slight increase to the accountability requiring the minister to prepare a report setting out detailed reasons as to why they are going to call in the development. It does not deny the ability of the minister to do it, but it requires a bit more accountability.

There is a subsequent amendment No. 62, and when we get to that later I will speak to that as well because it is related. That amendment requires that if the minister does call in a development and does prepare one of these reports that I am requiring them to under this paragraph, then they have to put that report on the planning portal. They have to serve it on the proponent, and they have to put it on the planning portal.

That means that if the minister is going to change the normal order of things and take away from a local council, for example, their ability to look at a development and make a decision, if the minister reckons, 'No, this is too important for the local council,' then, in my view, the least that the minister can do is explain himself or herself and publish reasons. That is really the thrust of my amendments Nos 61 and 62, and I will get to 63 later. Certainly, amendments Nos 61 and 62 go together and it is about accountability for what would otherwise be an unfettered ministerial discretion to do whatever they want.

The Hon. K.J. MAHER: The government opposes this amendment, and I do not think it is quite right to say it is 'completely unfettered'. I think that might be a slight misrepresentation; there are grounds set out in there. Clause 88 identifies the circumstances in which the commission will be the relevant authority for the purposes of assessing developments under the bill. In relation to major projects, the clause substantially reflects the existing provisions of section 46 of the Development Act relating to major projects. Whether or not a development is impact assessed can be dealt with separately in debate over clause 101—Categorisation.

The Hon. Mark Parnell's amendment No. 61 would require the minister, in exercising his ability under clause 88(1)(h), to call in a proposed development of state significance for assessment by the commission to prepare a report setting out detailed reasons for doing so. These reasons must relate to grounds under section 88(2); that is, because it is of major social, economic and environmental importance significant to the state etc.

Amendment No. 62 from the Hon. Mark Parnell, which he has spoken about, would then require the minister's report to be provided to the proponent and also published on the SA planning portal. It has not been an unusual practice to publish reasons for the minister forming the opinion that a declaration under section 46 of the Development Act is appropriate or necessary for the proper assessment of the development or project of major environmental, social or environmental importance.

This would create further red tape and avenues for dispute over a decision that is already made. A decision to make such a declaration should not be interpreted as support for a proposal nor is it some sort of quasi-approval. It is simply a decision to allow the arms-length commission to make an assessment. The government does not support including in the bill yet another new level of red tape and bureaucratic prescription, especially given that the minister's decision to call in a project may already be subject to judicial review if seen to have been exercised without lawful basis, that is if it has not fulfilled the criteria set out in clause 88(2).

In such circumstances, the court could quash the minister's decision to call in the project to the commission and remit it to the relevant authority for determination. The minister's exercise of such power is subject to the ultimate review, as we have discussed in many of these clauses, by the electorate and the government of the day is answerable at the polls if decisions are made that are not in accordance with the community standard.

It also should be noted that the current planning minister has only exercised this power in relation to a small handful of projects since becoming planning minister. A list of such developments can be found on the sa.gov.au website under historical listing of proposals previously assessed. The government opposes the amendments Nos 61 and 62—and I think amendment No. 63 probably also fairly relates to what we are trying to do here.

I can foreshadow that the government will also oppose amendment No. 63 which would prevent the minister from calling in any other development for assessment by the commission because he or she considers it is necessary or appropriate for a proper development by removing this criteria from clause 88(2). It is our view that this flexibility should be maintained for the government of the day to call in matters which will, after all, be assessed by an independent, accountable, arms-length commission.

The Hon. M.C. PARNELL: I need to correct some of the things that the minister said. Let's pull this apart a little bit. The clauses we have been dealing with basically say who the decision-maker is, and one of the clauses we have just passed says that, if it is a routine sort of development and it is in the area of a local council, then the council will be the decision-maker through their panel. Whether the panel has councillors on it, we will decide later, but it will be the council.

I would refer to it as unfettered ministerial discretion. The minister has said, 'No, it is not unfettered: it is fettered.' Let's have a look at the strength of these fetters. They are made of papier mâché these fetters, they are not made of Valyrian steel. Here is a fetter: that the minister considers it is otherwise necessary or appropriate for the proper assessment of the proposed development that the proposed development be assessed by the commission. You cannot get any more open words than that. Effectively what it says is that, if the minister wants the planning commission to be the relevant authority, the minister will make that decision. The minister has to have no grounds whatsoever other than the minister considers it necessary.

My amendment basically says that, if the minister is going to use that power, the power to take away from local councils their ability to handle development—and wants to take it away, I would say arbitrarily, and give it to the commission—then why on earth should we just accept the minister's say-so and not require the minister to justify his action? The minister said that they never use this power. They do. Have a look on the website and you will find that the most significant development for South Australia happens to be petrol stations and fast-food outlets, so all of these On the Run retail outlet petrol stations have all been called in.

The government has used a special regulation. They said that anything worth more than $3 million they were going to call that in. They will not need that regulation under this because the minister will just decide on a case-by-case basis that anything he does not trust the council to handle he will call in. He is not obliged to explain to anyone why he has done it, and it is completely immune from judicial review. The minister said that you can go to the court and the court will say the minister did not exercise the power properly.

When you write in legislation that all the minister has to do is to consider something necessary, and that is the only requirement, then I can tell you that judicial review is not going to cut it because you have to go to court and you have to say that the minister considered it was necessary but we think the minister got it wrong. You do not have the ability to challenge the minister's decision. All the court would consider is: did the minister think about it? Yes, he or she did. Did they think it was necessary? Yes, they did, otherwise they would not have made the decision: therefore, the decision stands. It is unimpeachable.

My amendment No. 63 is to remove that catch-all provision and at least limit the exercise of this power to certain criteria, and the certain criteria are set out in paragraphs (a) through to (f) but paragraph (g) is a point too far. Paragraph (g) is just over the top.

The question honourable members need to consider is: when it comes to dividing up the work of making planning decisions—deciding on individual development applications—we know the minister is at the top and will be making key decisions personally, with the advice of the commission, and the commission itself is at a very senior level; but, by not accepting these three amendments, 61, 62 and 63, the council would effectively be saying the minister has a very broad power (which I have described as unfettered) to take any development in the state that the minister thinks should be handled by someone else and send it off to the commission. I think that is a very slack process. It has been abused in the past and, if we let this go through unamended, it will be abused in the future.

Yes, this is a package of measures—I agree with the honourable minister on that—but, certainly, making them provide reasons and getting rid of that catch-all provision in paragraph (g) I think is the least that we can do.

The Hon. D.W. RIDGWAY: I have listened to the Hon. Mark Parnell's explanation of the amendments that he has moved and, as members would be aware and I have said on a number of occasions, the opposition is very keen on the independent planning commission and I talked at length in my second reading contribution around the Western Australian model. Of course, in that model, when the minister had a different point of view from the commission, he could overrule the commission but then they had to provide a reason to parliament. The minister, in the end, had the final say but, if they were going to be at variance with the commission, they had to table a report in parliament.

I know the Hon. Mark Parnell talks about petrol stations and what would be seen as maybe smaller developments being taken away from councils, and I can see his reason for being concerned, but I would like to think that you need to have some flexibility in government for projects that are of major social, economic and environmental importance. I think he makes some good points about the magnitude of where the threshold is for the minister to call it in, but I do have a lot of faith in the planning commission model. I think Brian Hayes QC said on radio with Ian Henschke, 'We are going to do this,' and Ian Henschke said, 'That's the same as the Liberals are proposing and that's based on the Western Australian model.'

I have some faith in the commission that, if it is going to do the assessment, it will be a team of highly qualified professionals and, at the end of the day, I think the government of the day and the minister need the flexibility and have those provisions—as I said, maybe not with the petrol station scenario that the Hon. Mark Parnell talks about. Subclause (2)(a) says:

(i) the development is of major social, economic or environmental importance; or

(ii) the development involves benefits, impacts or risks that are of significance to the State; or

(iii) the cumulative effect of the development, when considered in conjunction with any other development, project or activity already being undertaken or carried on, or proposed to be undertaken or carried on, at or within the vicinity of the relevant site, gives rise to issues that are of significance to the State;

I know people could read a whole range of things into that but, at the end of the day, the opposition believes that the government and minister of the day need the flexibility and capacity, if there is something that is of major social, economic or environmental importance, to call it in.

I have some sympathy with the basis of the Hon. Mark Parnell's discussion and the reason he has moved his amendments, but I indicate the opposition will not be supporting Nos. 61, 62 and 63 of the Hon. Mark Parnell's set No. 1.

The Hon. A.L. McLACHLAN: I have a question to the minister to satiate my curiosity in relation to 88(2)(g): is this an objective test or a subjective test? If it is objective, what matters will the minister likely have regard to to satisfy the test constituted by the words 'otherwise necessary or appropriate'?

The Hon. K.J. MAHER: I thank the honourable member for his foray into this. I think it is pretty clear from the wording, 'the Minister considers', so it is in the minister's opinion. I think that is clearly stated from the wording of paragraph (g). I point out, though, as others have pointed out, that this is not the power to approve something but the power to have the commission look at something. This is not quasi approval at all, but merely the power to have the commission look at something, on the plain reading of it. I have advice that way, too. It is that the minister considers it. Like any legislation, if a minister exercises a decision completely unreasonably, it would be open to judicial review.

The Hon. A.L. McLACHLAN: I appreciate that it may well be considered a difficult question, but I am just grappling with this terminology in the course of this debate. The minister forms the decision, and if it was to be reviewed how are we to determine it is unreasonable? Is it a completely subjective test, so he or she forms the view and it does not need to have regard to a number of objective factors, or is it like any other test and has to have some form of objectivity and reference to particular matters?

Or, is it basically the minister under this wording forming a view subjectively without reference to external factors and coming to the assessment in a quiet moment, and it satisfies the test as drafted in the section? I may not have expressed myself that well, but I am channelling through you to your adviser and to parliamentary counsel.

The Hon. K.J. MAHER: I thank the honourable member for his question. I will not get into a lawyerly argument over tests of reasonableness, but the questions you are going to are something a court would look at and a court would determine.

The Hon. M.C. PARNELL: I appreciate the line of questioning from the Hon. Andrew McLachlan. I think the answer is quite clear: that there is not a snowflake's chance in hell that anyone will be able to get a court to declare the decision unreasonable. What I tell you will happen is that developers will beat a line to the minister's door.

They will say, 'We've got this proposal for a certain part of the state, we know it's incredibly unpopular and, even though you've managed to get rid of all those pesky local councillors off the panels [if that's how it turns out], we don't think we're going to get a good enough hearing down locally, so we want you to call this development in. We want you to make sure the planning commission is the decision maker. We don't want those locals to have anything to do with it.' That is what will happen.

They are already beating a line to the minister's door under the current system, asking for things to be declared major projects, and asking for things to be valued at $3 million so they do not have to go through the local council. These things happen all the time. This whole clause is an invitation to anyone, who does not want to have to deal locally, to go to the minister, the minister will then send it off to the commission. I accept that call-in powers are an appropriate executive tool, but I want them to be limited to reasonable grounds.

The Hon. David Ridgway read out some quite reasonable grounds, things that are of importance to the state. Yes, we can do that, but, honestly, when you start getting down to petrol stations being significant for the state and calling in things like that, I think you have lost the plot a bit.

Given that the subtext of a lot of this debate is the extent to which local knowledge and local councils should be involved, compared to top heavy centralised, this is a recipe for bucket loads of applications to be sent to the planning commission simply because the developers prefer it that way. They do not want to deal with locals; they would rather deal with a central state-level body. The minister has an unfettered power, I would say, to send it to them.

Amendment negatived.

The CHAIR: The next amendment is amendment No. 4 [Ridgway-4], clause 88, page 74, line 9.

The Hon. D.W. RIDGWAY: I indicate that I will be withdrawing that amendment.

The CHAIR: The next amendment is amendment No. 62 [Parnell-1], clause 88, page 74, after line 43.

The Hon. M.C. PARNELL: Amendments 62 and 63, as much as I would love talking about them all night, I think are consequential and I think that that has been resolved.

Clause passed.

Clauses 89 and 90.

The Hon. M.C. PARNELL: People might not have believed me before when I said, in response to the minister's suggestion, that we were depoliticising the system here, but just have a look at clause 89. For impact assessed development, the minister is the relevant authority, so this suggestion of depoliticising is only in one direction. The only people who are so untrustworthy that they cannot make legitimate planning decisions are elected local councillors. The minister has put himself, or herself, as the chief decision-maker for the most significant planning decisions made in the state. I just make that observation.

Clauses passed.

Clause 91.

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

Amendment No 64 [Parnell–1]—

Page 75, after line 25—Insert:

(2) However, the ability of an accredited professional to act as a relevant authority under subsection (1) is limited to cases involving assessment against the provisions of the Building Rules (and, if appropriate, granting a building consent).

Clause 91 provides that accredited professionals can act as the relevant authority in cases that are contemplated by the act or in cases prescribed or authorised by the regulations. My amendment proposes to insert a new subclause:

(2) However, the ability of an accredited professional to act as a relevant authority under subsection (1) is limited to cases involving assessment against the provisions of the Building Rules (and, if appropriate, granting a building consent).

What I am getting at there is that we have had this concept of private certifiers for a little while now. They were contentious when they came in and the government effectively said, 'Well, we're just going to use it for building rules.' In other words, 'Rather than the council building inspector going out and measuring the depth of the footings, and things like that, we will trust private certifiers to do that.' That was how the private certifiers got in on the act.

It is now proposed in this bill that private certifiers can do more than just assess whether the building rules for safety, fire and whatever are being complied with. They are going to actually be giving the final tick-off. They are going to be giving planning consent as well. I am trying to limit that role. The Local Government Association, in their submission, says, 'The LGA does not support the expansion of private certification of planning applications', so they agree with the position that I have taken. Then they say:

If private certification of planning matters is to continue, it must be limited to minor non-contentious matters and be subject to rigorous scrutiny. A better process for reporting and resolving errors must be introduced as councils are currently required to spend time and resources to address the mistakes that are being made.

Whilst exploring the Courts Administration Authority website a little while ago, I did come across a case where a private certifier had got it terribly wrong up at Marree and the court was left with the job of trying to unravel the situation where someone had signed off on a building being built, a slab being poured, and now they are looking at a situation where someone has to get a jackhammer and dig it all up and start again, because they got it wrong.

I am not saying councils cannot get it wrong as well or that individual building inspectors cannot get it wrong, but when it comes to private certifiers, I think we are safer to limit them to the role they currently have and not allow them to be giving planning consent. Limit their role to providing assessment against the building rules, that the safety of the building is okay, that the rules have been properly followed, but not that threshold question of whether they should be allowed to build at all, which effectively is the planning approval.

The Hon. K.J. MAHER: The government opposes this amendment. This new provision in this bill provides that accredited professionals may act as relevant authorities in circumstances contemplated in the act or prescribed in the regulations. It is intended this might be limited to the case of accepted or deemed to be satisfied development. The Hon. Mark Parnell's amendment would insert a subclause into clause 91. If amended, this would wind back any private certification of planning decisions contrary to the expert panel's recommendation, and the government opposes that.

We may look to the building rules of private certification implemented some 20 years ago as an example of how provisions such as clause 91 function at a practical level. It is well known that building certifiers apply what are often life-saving technical rules around construction standards and requirements. It stands to reason that such a model could equally be applied to the profession that the government and the expert panel think should be increasingly charged with applying the rules contained in the planning and design code.

The administration of rules and policies that have been developed consultatively and are appropriate to their local area should be entrusted to professionals, subject to a rigorous accreditation regime to be established. For these reasons, the government opposes the amendment.

The Hon. D.G.E. HOOD: Family First has been agitating for private certification of planning rules or providing planning consent for a number of years now, so for that reason we will not support the amendment.

The Hon. D.W. RIDGWAY: I also indicate that the opposition has been a supporter of private certification and private certifiers being involved in a range of areas across the whole development sphere. We see some real opportunities for getting rid of red tape and actually having faster approvals and faster activity. In the end, this bill we are dealing with, as members will recall, is something the opposition broadly supports, although there are components of it that we do not. In relation to the expert panel, the path that they went down, and of course the previous paths that the opposition has gone down, were all about getting a modern system that was responsive and would allow for economic growth in the future of this state. So, we will not be supporting the Hon. Mark Parnell's amendment.

The Hon. J.A. DARLEY: I indicate I will not be supporting the amendment either.

Amendment negatived; clause passed.

Clause 92 passed.

Clause 93.

The Hon. K.J. MAHER: I move:

Amendment No 37 [Emp–4]—

Page 76, line 20—Delete 'assessed' and substitute 'approved'

This amendment has been made in response to a suggestion received in consultation and corrects a minor drafting oversight.

The Hon. D.W. RIDGWAY: The opposition supports the government's amendment.

Amendment carried.

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

Amendment No 65 [Parnell–1]—

Page 76, after line 21—Insert:

(4) The notice of a decision of a council granting a development approval must include the name and contact details of every other entity that has acted as a relevant authority in relation to that approval.

This is an amendment that was requested by the Local Government Association. I will read a couple of sentences which explain why they believe and I believe that it is necessary:

Councils have expressed frustration that they are required to issue the 'development approval' for an application they have had no role in assessing. Significant resources are required to undertake consistency checks, issue documents, register all documents in the records management system and other administrative tasks. Councils are also responsible for the compliance, enforcement and complaint management of these applications. Councils only receive a small portion of the total fees to undertake this work, which must be heavily subsidised by rate payers. If this role for Councils is to continue, the fee schedule must adequately recognise the extent of the non-assessment tasks undertaken.

This does not deal with the fee (I just thought I would throw that in), but it deals with the fact that a council might have had no role in the assessment and yet they are the ones under whose letterhead, if you like, the approval has been granted. They are the ones who get all the complaints, they get all the questions and they are responsible for all the enforcement. This simple provision simply says that, where the council gives the notice that a development approval has been granted, it should also include the name and contact details of every other entity that has acted as a relevant authority in relation to that approval.

The Hon. Dennis Hood said before that he welcomes the role of these private certifiers; they are going to be making a lot of these decisions. The flipside of that is that their name and phone number need to be on the development approval form so that when someone has a query or whatever about it they go to the person who made the decision, because the council quite rightly makes the point that they end up holding the baby, as it were. I think this is a pretty simple clause. If decision-makers other than the council have been involved in it, put their details on the form so that people know where to direct the appropriate queries.

The Hon. K.J. MAHER: I can indicate that the government opposes this amendment as it will be, as it is at present, a matter for the regulations. This information will be on the portal in any case, as clause 52(c) provides that the regulations may make provision for online delivery of information on, amongst other things, the issuing or registrations of development authorisations. This is equivalent to what is currently provided by regulation 98—Register of applications. Regulation 98(2)(ga) specifically requires details of private certifiers, etc., and regulation 98(3a) requires this information be made available on the internet.

The Hon. D.W. RIDGWAY: I indicate that the opposition will be supporting the Hon. Mark Parnell's amendment. I think he makes a very good point that if it is an accredited professional or the private certifier that is making a decision, their name should be on all the documentation. I can see the point he is trying to make and indicate that the opposition is happy to support him.

The Hon. D.G.E. HOOD: I think it will lift the Hon. Mr Parnell's spirits to know that we will be supporting it as well.

Amendment carried; clause as amended passed.

Progress reported; committee to sit again.

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