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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-04-08 Daily Xml
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COVID-19 Emergency Response Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

The Hon. R.I. LUCAS: Prior to the lunch break, the Hon. Mr Parnell asked me some questions. I have been provided with some answers and I will share most of those, except for a small one, which I disagree with; I will not share that with him. The answers to the Hon. Mr Parnell's questions are as follows:

The provisions relating to residential tenancies, including rooming houses and residential parks, is consistent with the Prime Minister's announcement of a temporary moratorium on evictions due to unpaid rent arising from severe rental distress as a result of COVID-19. The provisions do propose to extend this to unpaid water supply and usage, which I am advised are also common. The honourable member is correct, in that agreements may still be terminated on other grounds or naturally come to an end if it is a fixed term agreement. These are provided for in part 5 of the act.

Some of these worth noting include: a breach of agreement, including damage (section 80); either the tenant or landlord applying for termination based on hardship (section 89); a tenant or co-tenant applying for termination based on domestic abuse (section 89A); a landlord requiring possession for certain reasons, such as renovations, demolition, occupation for themselves or a family member, etc. (section 81); a landlord bringing a periodic tenancy to an end without specifying a ground (section 83); the tenant using the premises for an illegal purpose or their conduct significantly interferes with the neighbours (section 90).

It is important to note that clause 8(1)(l) provides that, whilst a tenancy may be terminated on other grounds, SACAT may suspend an order for possession beyond the existing 90-day period currently provided for in the act. This is proposed to ensure that SACAT may have regard to the circumstances of the COVID-19 pandemic, including the need to ameliorate the effects of the pandemic in the state and the need to avoid homelessness during such a public health emergency in its consideration of such matters.

It also seeks to ensure compliance with any social distancing or movement restrictions that may be in place at the time. These provisions seek to implement what has been agreed to date with respect to the moratorium on evictions for unpaid rent as a result of COVID-19. We have, of course, included what we also believe to be some other fundamental protections for tenants and landlords, such as the requirement around audiovisual inspections whilst ensuring that our legislative framework remains proportionate, scalable and responsive to this pandemic in any further announcements. We are seeking to temporarily empower SACAT to deal with various unforeseen matters during this public health emergency. These powers are appropriate and measured to ensure that we can support the sector and seek to protect both tenants and landlords during this time.

With respect to the honourable member's question about a non-financial related breach of an agreement due to COVID-19, such as operating a business from home, I am advised that SACAT may consider the circumstances of the matter under proposed subclause (1)(k) and make an order that it considers appropriate in the circumstances of COVID-19. I will also point out that SACAT may already make an order that it considers appropriate under section 110(1)(d) and this subclause only seeks to ensure that the extraordinary circumstances of COVID-19 are taken into consideration.

In response to communicating these proposed reforms, I am advised that Consumer and Business Services has already written to all tenants, landlords, agents and key stakeholders, including advocacy groups, industry associations and registered training organisations. Further communications are planned should these proposed reforms be passed by the parliament. CBS will be updating content on its website (sa.gov.au) and using social media to advise of the changes. CBS will also continue to liaise with SACAT, the SA Housing Authority and any other relevant agencies to distribute communications, with a particular emphasis on any vulnerable or other groups that may be significantly impacted by COVID-19. CBS welcomes any suggestions from the honourable member, indeed, in helping to get the message out by way of communication.

I will put on the record that the only bit of the advice that I disagree with is the view that residential tenancies were going to be subject to further consideration by the national cabinet. My understanding is that the national cabinet has resolved what the Prime Minister and the national cabinet believes to be the issue in relation to retail and commercial tenancies and has essentially handballed, flicked past, or whatever other words you would like to use, to treasurers, and that is probably going to be the Council on Federal Financial Relations.

In our state that would involve me, but obviously in serious consultation with the Attorney-General who has responsibility for the area, and Mr Soulio and others. In other jurisdictions I think it is probably the same thing as well: it involves the consultation of treasurers with line ministers or agencies in relation to it. Of course, this does not preclude at some stage the Prime Minister and the national cabinet inserting themselves back into the process, but at this stage the position of the Prime Minister and the national cabinet is that they have done what they wish to do in this area.

They have set the parameters and they are now leaving the difficult decisions of how to resolve what they have decided to the states and territories in the complex area of both retail and commercial leases, but in the equally complex and challenging area of residential tenancies they have left it to the state jurisdictions and ostensibly to the treasurers.

The Hon. M.C. PARNELL: I thank the minister for putting those answers on the record. His answers pretty much reflect what I expected. The bottom line—and we will perhaps go more into it when we get to clause 8—appears to be that having an overriding power in SACAT to make just decisions in the circumstances is probably the best we can hope for.

The way this bill is currently worded, if a tenant stops paying rent or falls behind in their rent, the landlord realises they cannot chuck them out for that reason so they just say, 'I want to renovate,' and give them 60 days' notice. Then it would be up to the tenant to have to go to the tribunal and say, 'I know the owner is saying they want to renovate but there's a pandemic on, in case you didn't notice, and can you please make orders suspending that for another few months?' I think that is the best that people in that circumstance could hope for, but we cannot be in the minds of the tribunal.

My understanding is that they are sensible people who will understand the tenor of this legislation and we hope they will bend over backwards to give effect to it. I also hope that landlords do not try to find loopholes or gaps in this legislation to seek to undermine the intention of the national cabinet; that is, to be evicting people during this time of crisis. I thank the minister for his answers.

The Hon. C. BONAROS: I have some questions that I would like to ask the Leader of the Government now.

The Hon. R.I. LUCAS: Fire away.

The Hon. C. BONAROS: Thank you, Leader of the Government. The first is in relation to the definition of 'financial stress or hardship', which is an issue that I addressed during my second reading contribution. I note that the code of conduct that has been released nationally now has a definition of 'financial stress or hardship', but there is not one in the bill. This was one of the issues raised at the briefing on Monday, and there was not a lot of clarity around which definition we would be adopting. Is it the intention of the government to adopt the definition that has been implemented as part of the code of conduct, or some other definition?

The Hon. R.I. LUCAS: It is the government's desire, wish and intention to use that definition because that is consistent. It is 30 per cent, but it is also 15 per cent, as recently announced, for charities. You are probably not going to have to worry about this, but if you are over $1 billion it is 50 per cent, or whatever. Anyway, 30 per cent is the rule of thumb. That is, if you are eligible for JobKeeper, you are defined to be in financial distress.

In terms of the state's position, we are looking via regulations in terms of confirming that, but that is the intention of the South Australian government. We cannot speak on behalf of all the other state and territory governments, but the national code, which has been circulated, would seem to indicate that is the preference.

The national code or something in the minutes says 'as appropriate', so it does seem to leave some flexibility. However, it is the state government's intention to mirror as closely as we can the definitions that businesses are having to go through with the federal government to be registered as eligible for JobKeeper, as being in financial distress as a result of COVID-19. There are some complexities, so I am advised, in terms of the legal people trying to draft the regulations underneath this, and they are still working on those. I have certainly not seen them yet, but the intention is clearly as the member has outlined, and that is certainly our intention as well.

The Hon. C. BONAROS: I think that provides a lot of clarity and is probably very welcomed by most in terms of consistency at least with the national code of conduct that has been released. The code of conduct also, at clause 6, states:

6. Any reduction in statutory charges (e.g. land tax, council rates) or insurance will be passed on to the tenant in the appropriate proportion applicable under the terms of the lease.

Again, one of the questions raised during the briefing was whether there is any intention here to exempt landlords or tenants during this period from government charges, including land tax, if they meet the relevant definitions. There was no answer provided to that. Can the Treasurer confirm whether or not that is being considered and what the likely outcome will be?

The Hon. R.I. LUCAS: To be fair to the officers who would have been briefing, they would not have been in a position to give an indication on that. I have indicated publicly in the last 24 hours somewhere that the government has already outlined a very significant reduction in land tax from 1 July. There is the $189 million over three years that, for those of you who can remember pre COVID-19, we went through late last year. In one of the government's economic stimulus packages, we announced a further $13 million of land tax reduction for financial year 2020-21. That starts from 1 July and onwards, so there will be a significant reduction in land tax for a large number of landowners and investors from 1 July.

What I have indicated publicly on behalf of the government without yet being specific is that the government will provide some further reduction in land tax for the last quarter of 2019-20. For the period April through to 30 June, the government will commit in the coming days to some further relief in relation to land tax for those impacted by these arrangements.

In the various iterations that went backwards and forwards from treasurers to the national cabinet over the last what seems like months but I suspect it has only been a couple of weeks, there have been various formulations of what that land tax might be. The final statement, as you will see, from the national cabinet is non-specific; it leaves it essentially to the states and territories.

I have committed, on behalf of the state government, that we will provide further land tax relief. I am not in a position today to indicate what that is, but we will be announcing in the coming days, in the not too far distant future, what our response is going to be. However, my view, which is not reflected in the national cabinet, has been that it should not just be the state government that has some skin in the game, if I can use that phrase, but that local government should have some skin in the game in relation to rates relief. And, frankly, the federal government and financial institutions should have some skin in the game in relation to some relief.

It should not just be the state government and the landlord in the end who are responsible for the loss of tenant income or rental income in certain circumstances, and I think there are others who should be contributing. The federal government, with respect to them, have made huge contributions right across the board so I am not being critical of them, but we have suggested a couple of areas that we would like them to consider further. I think it is fair to say that they have not yet given us any indication that they are prepared to move in this particular space.

In relation to the response of local government—not unreasonably, and that is an issue for state governments to address—one local government council has frozen rates but we are actually talking about reducing land tax and government costs. My personal view is that local governments ought to be looking at rate relief in these circumstances; that is, where there is a COVID-19 impacted landlord in their area, they should be looking at rate relief. In the two or three council areas where there have been revaluations, admittedly only two or three out of 69 where they might be looking at increased rate revenues, they have the capacity, in our view, to look at relief.

I also have the view that the financial institutions have the capacity to do more but the banks have rejected that and frankly we have no power to enforce that. In the end, the two groups that are left are the landlords—because they are caught by the legislation and they are going to have some skin in the game and are going to lose something in relation to this—and the state government, which have given a commitment that we, too, will provide some relief; albeit at this stage we are not in a position to indicate what that relief will be for this last quarter. We will provide relief post 1 July because that is already locked in and we have made commitments to it.

That is sort of the lay of the land at the moment. I really cannot provide any greater detail to the member's question other than she has a clear commitment from me on behalf of the government that we will do something in relation to land tax relief for landlords in these particular circumstances.

The Hon. C. BONAROS: For the record, can I say to the Treasurer that we wholeheartedly support your robust determination in ensuring that others have skin in the game, particularly given the effect that this is going to have on certain sectors and landlords, of course. In terms of local governments and council rates, have there been direct discussions with the Local Government Association and the various councils, and are those decisions being left to them alone—if we can just clarify that? If we see that they are not, of their own volition, willing to put some skin in the game, as you say, is there scope for the government to step in and make sure that something is done to ensure that they do have some skin in the game?

The Hon. R.I. LUCAS: That is an excellent question. In terms of discussions, I have not had discussions with the LGA. I have had discussions with the Minister for Local Government and he is aware of my views, but he is nevertheless the line minister in relation to relations with local government. I would need to check with minister Knoll as to whether or not he has had any discussions in relation to these issues.

Again, this is just a personal view at this stage; it has not even been discussed at cabinet. I have certainly sought advice from Treasury as to what are the levers that are open to government in relation to local government. At this stage, it is still a work in progress. I am not sure what those levers, if any, are in relation to encouraging local government to provide some relief in the circumstances that we are talking about.

The member then goes on: is there a power to require? I guess the parliament always has the power, but the government would have to firstly take a decision—and we have not taken that decision—to amend legislation in some way to require rate relief. That would be complicated and complex, so we would prefer in the first instance to encourage local government councils that they too have an interest in ensuring the viability of businesses surviving and thriving in their local government area.

It is not just the business and the tenant. They have an interest in their local business community surviving and thriving, and therefore they have an interest in ensuring the survivability of that business and the landlord investing in the particular area. We would hope that local government councils would see the good sense of that, but only time will tell.

The Hon. C. BONAROS: Going back to the issue of those matters that the government does have control over without further legislation, are there any proposed measures in place to provide additional relief when it comes to water and sewerage charges by SA Water if you meet the threshold of having been impacted by COVID-19?

The Hon. R.I. LUCAS: There is not in relation to COVID-19 but, as the member will know, the government has committed to a reduction in water and sewerage prices from 1 July. We will not be doing anything in relation to that prior to 1 July. Through the process and the work that ESCOSA has to do as the independent regulator, and in setting water prices for the next period 2020 to 2024, we have committed to reductions in water prices for households, commercial and industrial, and they will occur from 1 July. So there will be some relief, but that will not just be for COVID-19 related businesses and households. It will be for all businesses and households to varying degrees, to all businesses and households from 1 July.

The Hon. C. BONAROS: God forbid this crisis gets worse and not better, but I am hoping that even though we are having that relief from 1 July there will be further discussions about whether COVID-19 specific relief needs to be considered in relation to that same issue of sewerage and water rates and charges.

The Hon. R.I. LUCAS: I cannot add any more than the comments I have made, I am afraid.

The Hon. C. BONAROS: The other question I had was specifically in relation to CBS, and also SACAT and funding. I note again that this is an issue that we raised during the briefing. The answer that was provided, from memory, was that at this stage there has not been any request for additional funding. Can the Treasurer confirm that should that workload increase—which we are all anticipating it will—additional funding and resources will be provided to both SACAT and CBS to ensure that they can keep up with the demand?

The Hon. R.I. LUCAS: No. Mr Soulio is going to be required to work 24 hours a day, seven days a week and not sleep. It is as simple as that. The answer to the question is that we will consider reasonably and sensibly any soundly based request for additional resources from not just CBS and SACAT but the Small Business Commissioner, for example, who has an elevated role in all of this. As with all submissions, we will need to see what they can fund and continue to fund.

There are a number of areas in some of these agencies where work has just disappeared because businesses are out of business, and we are looking within the public sector to sensibly move people out of one particular area into another area of higher priority. We are doing that between agencies; we expect that from within an agency. We are expecting that within Treasury, for example, if there is an area that is no longer a priority area or they cannot do the work they normally do to see whether we can move them across. We will look at that, but the obvious answer is that, if we have to provide additional resources for those agencies that you have mentioned, and perhaps one or two others, we will just have to find the additional resources to ensure the work gets done.

The Hon. C. BONAROS: Back on the issue of CBS and the suggestion by the Hon. Mark Parnell that some suggestions might be put to CBS in terms of how they communicate or educate the public about the changes that are being made, I note that SBS in particular has done an amazing job in providing up-to-date information literally daily in myriad languages on their website, and it is being widely promoted and being updated very regularly.

I note that the federal and state governments have ensured as far as possible that all of these changes can be made available in different languages. My question or suggestion (however you would like to take it) is whether CBS is ensuring that this information, these updates, this education awareness program will be made available in as many languages as possible to ensure that those people who do not have a good grasp of the English language are also aware of the changes that are being made?

The Hon. R.I. LUCAS: I would be stunned if the CBS, if they have not already responded to make that available, did not pick up that suggestion and look at it. The other very quick point I would make—and after we come back after the dinner break I can correct the record if I am wrong—is that the government is actively promoting as the one source of information sa.gov.au. There is a very strong argument that has come to the government that people in these times need a ready source of fact and information, free of rubbish and rhetoric, but just the information, whether it be business-related information or health-related information, and we are trying to channel as many people as possible to sa.gov.au.

I would assume that CBS will be a link through that. If it is not, I am sure that could be made available and then through that channelled into all the sorts of information in terms of translations, etc., that might be made available. If there is some reason they are not linked or cannot be linked, I will correct the record after the dinner break. Your suggestion is a sensible one; I am sure Mr Soulio and his officers will give consideration to it.

The Hon. C. BONAROS: I think I have only one other question we can deal with now, and then we can deal with the rest as we progress through the bill. I cannot find what it is right now at clause 1, but perhaps I could come back to it at some point, even if it is not related to one of the other clauses of the bill.

The Hon. M.C. PARNELL: Perhaps just to assist the committee, I have been looking at the government's website and this is a comprehensive question and answer section. One of the questions is: 'I have lost my job and I am unable to pay my rent.' Of course, the advice on the website does not yet take into account the measures we are now considering, and it will as a matter of urgency need to be rewritten because it includes the unhelpful advice that undue hardship does not include financial difficulties. Clearly, that situation will change.

The Hon. R.I. Lucas: If the parliament passes the legislation.

The Hon. M.C. PARNELL: My crystal ball tells me that it may be law by the end of today. I have just taken the opportunity to subscribe to updates from that particular service, so I am confident that the vehicles are in place, but I do not see any languages other than English, which I think was the point made by the Hon. Connie Bonaros. I think there is a lot more work to do and I have no doubt there are people in the agency working on it.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. K.J. MAHER: Can the minister confirm that clause 6, as amended through the interesting process through the assembly last night, is, in effect, a hard sunset clause in that the operation of all parts of the act will cease in six months or when the emergency is no longer declared, whichever comes first? Am I reading that correctly?

The Hon. R.I. LUCAS: The answer is yes. My advice is that an agreement was made in the House of Assembly to amend clause 6 to state that the act would cease either in six months or at the cessation of COVID-19 declarations, whichever is the earlier.

The Hon. K.J. MAHER: What is the interaction with clause 18 and the amended clause 6? Can all parts of the act have transitional arrangements that in effect allow, by regulation, the provisions that are already there to continue on for some time if that were a regulation put forward?

The Hon. R.I. LUCAS: My advice is that they are only regulations of a savings or transitional nature. They do not extend the act.

The Hon. K.J. MAHER: Could the Treasurer give an example of how they might work in practice? What might be saved by the operation of clause 18 after the new clause 6 comes into effect?

The Hon. R.I. LUCAS: I am advised there are three examples I can put on the record. There will be certain transitional arrangements that will need to be dealt with that will not be neatly tied up at the moment the declared emergency ceases. For example, where an associated incorporation has been granted an extension of time to hold an AGM we would want the regulation affecting the extension of time to have effect after the emergency period ended so that they did not fall into default.

A second example would be that time might be extended, using section 13, for certain companies to hold AGMs. This might sensibly be done to avoid the need for meetings to proceed in the current circumstances. A transitional regulation might then be required under section 18 to provide that despite the fact the act has expired, the extended time continues to have effect. This would avoid the company suddenly finding itself in default following the expiry of the act.

A third example might arise if the tribunal makes an order that a tenant is not in breach of a tenancy agreement for failing to pay rent for COVID-related natural distress. Transitional regulations might be required to ensure that after expiry of the act the landlord cannot rely on the COVID-related breach that occurred during the life of the act to make a fresh application after the act has expired. They are three examples in terms of transitional.

The Hon. K.J. MAHER: In terms of clause 18, could that also apply to changes to the Emergency Management Act and the modifications that are particularly made with the new section, I think it is 25(3)?

The Hon. R.I. LUCAS: I am advised that no, it cannot make those sorts of changes. It can only do something that is transitional or saving. It cannot go beyond.

The Hon. K.J. MAHER: To be very clear, if there is a power that is now conferred on the State Coordinator, and it is felt that whatever power it is needs to continue for a little while for whatever action it is to be completed, that cannot be continued on. Is that the advice that has been given?

The Hon. R.I. LUCAS: I am advised that that is correct.

The Hon. K.J. MAHER: For absolute clarity—

The Hon. R.I. Lucas: We just said that that's correct.

The Hon. K.J. MAHER: Yes, I know. The new powers that the State Coordinator has cannot under any circumstances be extended by the operation of clause 18; is that correct?

The Hon. R.I. LUCAS: That is correct, but there are certain provisions, which I think were discussed in the House of Assembly, which extend beyond, and that is in relation to liability issues and Crown immunity issues. This will be my very poor layperson's attempt, but this is decisions that might be taken during the emergency, about which in the end, afterwards, the Crown would still be able to say, 'We took those decisions during the emergency and we have, therefore, Crown immunity.' Is that a fair summary? Yes. I get a nod that that is a fair summary.

Clause passed.

Clause 7.

The Hon. K.J. MAHER: These questions will apply, I think, to the next few clauses that relate to leases. I think there was some discussion at clause 1—and it clears it up reasonably—the meaning of 'financial hardship'. Is it intended that the definition that applies in the code applies across all the various lease categories in terms of financial hardship or is it just commercial?

The Hon. R.I. LUCAS: Certainly, in relation to retail, commercial, industrial—however you want to define those—that is correct. In relation to residential, that is to be concluded. It has been left with the treasurers and others to try to work out what actually works in relation to that.

The Hon. K.J. MAHER: Is it state by state?

The Hon. R.I. LUCAS: Potentially. It would make sense, obviously, to have some degree of uniformity and agreement. One of the arguments in relation to the residential area is that, by and large, tenants are potentially likely to either have JobKeeper or JobSeeker payments, whereas some businesses in the commercial area might literally have no income at all. They might have access to JobKeeper but they might have no income at all. The answer to your question is: in relation to retail, commercial, industrial, yes; in relation to residential, that is still a work in progress.

The Hon. K.J. MAHER: In relation to the role and function of the Small Business Commissioner in clause 7, has consideration from the government been given to providing additional resources, in the first instance, to the Small Business Commissioner, who has powers to mediate a dispute and make determinations, and then also to the Magistrates Court, where a right of appeal lies I think under clause 7(9), an appeal from the determination of the commissioner? Have extra resources been contemplated for those two bodies?

The Hon. R.I. LUCAS: The answer is yes, but as I said in response to the question from the Hon. Ms Bonaros, in the first instance the government will look to see whether it is possible to in essence move public sector resources from underutilised areas to what are going to be obviously highly utilised areas such as the Small Business Commissioner, the CBS and, potentially, SACAT as well. In the end, if that is not possible, the government will obviously have to look at how we can sensibly resource these agencies, which will have to do an extraordinary amount of work in what we hope will be a relatively short space of time—it might be a period of six months—in terms of potentially mediating a range of disputes between landlords and tenants.

The Hon. K.J. MAHER: My next question applies to this and the next three clauses and relates to tenancies in general. The Treasurer can correct me if I am wrong, but if someone is suffering financial hardship as determined by, in this case the Small Business Commissioner, or SACAT in future clauses, effectively, for all of these clauses, you cannot go through the process of eviction proceedings. At the end of the declared emergency, or in six months—whichever is sooner—when this act no longer applies, does the entire amount that has not been paid during this time become a debt due and payable from the tenant to the landlord?

The Hon. R.I. LUCAS: That is one of the deliciously complex and complicated issues that remains to be resolved. If we talk about the retail/commercial/industrial space, the national code envisages a sharing; that is, a 50 per cent provision that the tenant takes. I think it envisages there is a waiver of 50 per cent, and then there is a deferral of 50 per cent, which will be collected in no less than a 24-month period.

This national code was only released yesterday. We are still trying to work our way through the code and what the implications will be in each of the state at territory jurisdictions. This goes back to the point that I was making to the Hon. Ms Bonaros earlier: in the end, at this stage, the landlord is going to, to use the phrase, have some skin in the game in terms of potentially losing some money. The state government may well make a contribution in terms of reducing costs like land tax, and that is why I was making this point earlier.

In terms of reducing the potential impact on landlords, the issue of whether the commonwealth government, local government or indeed financial institutions having some skin in the game ought to be part of the complex resolution of this issue. At this stage, it is just the landlords because in South Australia—and I suspect the other state and territory government will do the same—we have said that we are prepared to be part of the solution as well. At this stage, it is just those two bodies. We think there should be more bodies in the game, in terms of absorbing what might be unpaid rent.

The important point that I have not yet raised is that the Prime Minister and the national cabinet furiously agree that where tenants and landlords can come to a satisfactory resolution between themselves, they should be encouraged to do so. I am already aware that some landlords have said to their tenants, 'Hey, we want you to be here. We know you are now out of business, because of government edict, for six months. We won't collect your rent but we will extend your five-year lease by another six months and that's it.'

Those landlords are still taking a hit in that case; they just have a longer lease, but they have taken the hit of six months. They might get some land tax relief from the state government and indeed anyone else who is prepared to assist in the interim. Under the national cabinet rules, the landlord is entitled, for 50 per cent of it, to defer it for a period of no less than 24 months and collect it from the tenant. So the tenants are going to have to pay it back at that time.

The current arrangements in relation to the banks is that they are just capitalising the deferral of the loans they have. Yes, they are saying, 'For six months, we will carry you,' but they still get it all back at the end because they have capitalised the revenue or the income that they have lost during that particular period. So with great respect to banks and financial institutions, yes, they have a small amount of skin in the game, but ultimately they get the money that they have loaned to the particular landlord one way or another.

The Hon. K.J. MAHER: I am not completely familiar with the national code as it was just released yesterday, but as I understand it, according to the national code, half of the rental debt would be waived and the other half would be due and collectable within a 24-month period for commercial tenancies; is that correct?

The Hon. R.I. LUCAS: Yes, it is for commercial tenancies. I will try to find the actual provisions for you.

The Hon. K.J. MAHER: While the provisions are trying to be found, my next question will be: what effect does the national code have? Is it enforceable at law in South Australia?

The Hon. R.I. LUCAS: Let me first read this. Principle 3 states:

3. Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals (as outlined under “definitions,” below) of up to 100% of the amount ordinarily payable, on a case-by-case basis, based on the reduction in the tenant’s trade during the COVID-19 pandemic period and a subsequent reasonable recovery period.

The current leasing principle 4, which was released yesterday, states:

4. Rental waivers must constitute no less than 50% of the total reduction in rent payable under principle #3 above over the COVID-19 pandemic period and should constitute a greater proportion of the total reduction in rent payable in cases where failure to do so would compromise the tenant’s capacity to fulfil their ongoing obligations under the lease agreement.

If I can just interpose there, I am still struggling to understand the implications of some aspects of that particular phrase. But putting that to the side, principle 4 goes on to state:

Regard must also be had to the Landlord’s financial ability to provide such additional waivers. Tenants may waive the requirement for a 50% minimum waiver by agreement. Payment of rental deferrals by the tenant must be amortised over the balance of the lease term and for a period no less than 24 months whichever is the greater unless otherwise agreed by the parties.

So that is the answer to the first question.

The second question is, at the moment, it is not legally enforceable because it is just a statement of policy intent by the national cabinet. It is now left to us in the state and territories in terms of understanding what the implications of the national code are, how it might need to be adapted because it does say 'as appropriate' in the state and territory jurisdictions.

I know that in another Labor jurisdiction the Treasurer has said to me they are proposing to put the national code out for consultation and to see what the consultation is before they decide to implement it and then we would have to take a decision. I suspect that it would be highly likely that, when we come back on 12 May, there may well need to be further amendments to this particular area and also potentially in the area of residential tenancies as well, as we seek to understand whatever it is the national cabinet has decided and then ultimately what each of the state and territory jurisdictions decide in the residential tenancy space.

The Hon. K.J. MAHER: I thank the Treasurer for that comprehensive response, and that goes to my next question. We have a bill before us and we can only go on for certainty what is in the bill and how the law will be once this bill is passed. I appreciate that there will be further discussions. But if we assume that this bill is passed and that becomes the law, without anything more, does that mean that both residential and commercial tenants would be liable for the rent that they did not pay over that six months of financial hardship, let's say, immediately upon the act ceasing without anything else passing?

The Hon. R.I. LUCAS: The answer is yes and that is a fair indication of the challenge that confronts us. As I said, two jurisdictions have already legislated prior to the national cabinet releasing these yesterday. We are in a similar position that we are legislating before we have had a chance to look at what the implications and ramifications of the national code are. So those two jurisdictions and us, at the very least, I suspect are going to have to come back and make further changes in relation to the circumstances.

The Hon. K.J. MAHER: On that basis, I am wondering—and I note there is a communication strategy and publicity going to tenants of all descriptions—what is being communicated to tenants on that point? That is, what happens after this period if you are in financial hardship? How is it being communicated about the questions that will obviously arise? For example, do I owe all that money at the end of it?

The Hon. R.I. LUCAS: It will have to be communicated very carefully. It will have to reflect whatever law the parliament ultimately passes. The reality is that, even under the national code, a tenant in a commercial tenancy is going to have some of their unpaid rent that they have to pay, so it is not an absolute free kick, even under the national code that has been issued by the Prime Minister and the national cabinet.

As I read out in those principles, they are going to be required to pay back at least 50 per cent of it over not less than a 24-month period, or the balance of the lease term, depending on how much longer there is of the lease term. So, even under the national code, the tenant does not get a free kick for the whole six-month period.

The other issue that has to be made—and this is where the Prime Minister has talked about proportionality, which is a very difficult concept—is that, if you have a business, for example, that is still trading and is still getting some income, there should be proportionate relief for that particular business as opposed to one that has closed down completely. That is an easy principle to enunciate. It is a challenging principle to reflect in law, in terms of an agreement between the landlord and a tenant.

Any of you who have spoken—and I am sure some of you will be lobbied over coming days by representatives of the property industry—will say that the issue of proportionality is extraordinarily complicated because in some cases a loss of turnover for a particular tenant will have differential impacts on the landlord, depending on whether the landlord is a self-funded retiree who has no debt at all but is living off the income they are earning and has no relationship with a bank or a financial institution, as opposed to a landlord who is heavily leveraged or mortgaged in terms of the commercial properties they have, and therefore proportionality is different.

I am mindful that we have a long evening before us and I do not want to delay anyone from the importance of their evening meal, so I intend to move that we report progress.

Sitting suspended from 18:02 to 19:45.

The CHAIR: Are there any further contributions at clause 7?

The Hon. C. BONAROS: I will have to remember my question now, because it led on from the questions that the Hon. Kyam Maher was asking—

An honourable member: Good questions.

The Hon. C. BONAROS: Yes, absolutely, good questions. It is becoming abundantly clear how extremely complicated and technical these changes are, especially when you take into consideration the code of conduct. In effect, clause 7(12) says that, in circumstances where you have a commercial tenant who is already behind in rent, any action that has already commenced has to be stayed or suspended under that provision. I think that is correct; effectively, that is what it says.

I just wanted to see if there were any difficulties with that provision in light of the discussion that was taking place with the Hon. Kyam Maher. I appreciate that we have just had a dinner break, so it is not that fresh in our minds, but I was thinking about it in the context of having this situation where, in effect, you are claiming back money at a later stage—the 50 per cent that will be payable at some point.

In this instance, you might have somebody who already was in arrears, but as a result of COVID-19, any action that has been commenced but not yet completed or finalised will have to be stayed or suspended. I think, in light of the code of conduct, that then raises questions about what happens at the end of the prescribed period in terms of what repayments will have to be made. It is clear as mud, Mr Chair.

The Hon. R.I. LUCAS: Based on advice, I draw the member's attention to the definition of 'relevant period'. 'Relevant period' is what we hope will be a very short period, between 30 March, which is when the flag goes up on this legislation, and the date on which the act is assented to by the Governor, which might be a week. What are we up to now? It is 8 April, so there are at least eight days between 30 March, which is when all this was meant to start, and 8 April. Let's say the act is not assented to until tomorrow or the next day, so there might be a nine or 10-day period.

It is only in relation to that particular period. So it is not actually someone who was in financial difficulties at the start of COVID-19: it is someone who as a result of COVID-19 gets into difficulties in this 10-day period and the landlord has commenced action as a result of the problems they have got themselves into in terms of eviction. That is what is stayed. As described to me, it is sort of a mini version of retrospectivity for this period of eight or 10 days or however long it might be between 30 March and whenever the act is assented to, hopefully in the next day or two.

The Hon. C. BONAROS: So it won't be in relation to previous—

The Hon. R.I. LUCAS: No.

The Hon. C. BONAROS: Thank you, that provides some clarity. I just have one other question in relation to a release that was provided to me on commercial tenancies that was put out yesterday by the Prime Minister. That was in relation to the commonwealth government acting as a model landlord by waiving rents for its small and medium enterprises and not-for-profit tenants within its owned and leased property across Australia. Do the changes that we are considering now mean that we are going to be doing the same here at a state level?

The Hon. R.I. LUCAS: The legislation does not require it. They will be individual policy decisions by jurisdictions. We have already acted as a moral exemplar in a few areas. I am not sure that we have actually announced it yet, but in relation to the West Beach Trust, for example, and one or two other areas where we have small tenancies, we have waived—

An honourable member interjecting:

The Hon. R.I. LUCAS: Tourism operators I think has already been announced in relation to Environment and Water. We have taken action in a number of areas. One of the other unnamed, very small jurisdictions that has a very large number of—evidently—buildings they own where the commonwealth government is one of their tenants is not too keen on being a moral exemplar in forgiving the federal government some of its tenancies.

We do have potentially one or two very small examples in South Australia of very significant tenants paying very significant sums of money to the state government. Whilst we have so far been a moral exemplar—in a very loose use of the phrase; I do not want any lawyer to quote that to me outside the house—in some smaller areas in terms of waiving rents etc., these will be individual decisions for each state and territory jurisdiction as to how far it might want to extend its generosity in relation to its tenants. So we will make some judgements.

So far, the judgements that I have authorised have essentially been in relation to a range of smaller operators. We have made a judgement that they have been very significantly impacted by COVID-19 and it would be a significant challenge for them, and we will make other judgements in relation to medium and bigger-sized tenants. Therefore, any rule we might have applied to smaller tenants we will not necessarily apply to medium and bigger-sized tenants in our buildings. They are judgements that I and the government will make in due course.

Clause passed.

Clause 8.

The Hon. K.J. MAHER: Again, it was touched on and answered last time in relation to the Small Business Commissioner and also the Magistrates Court, under the tribunal that is SACAT, which have initial jurisdiction. I presume, like normal processes, matters then go to the District Court to appeal decisions. Is it contemplated that those two bodies may need extra resources if this becomes a significant amount of their work, and will the government give an undertaking to provide that if it is needed?

The Hon. R.I. LUCAS: At this stage I have not had any advice in relation to the courts of higher jurisdiction, if that is the correct way of describing them. As I indicated before the dinner break, certainly in relation to SACAT, potentially, certainly in relation to the Small Business Commissioner and certainly in relation to the commissioner in relation to Consumer and Business Services. My comments before dinner remain the same after dinner; that is, we accept the fact that there is likely to be an increased workload for each of those areas.

In the first instance, we would like to see what capacity they have to move people from lower priority areas to higher priority areas. That is more likely to be the case for CBS than it is for something like the Small Business Commissioner, I suspect, although I do not know. However, I accept the fact as Treasurer that we may well have to allocate additional resources in this period. We will not delay the processing of important issues in this six-month period—we hope it is a six-month period—through the lack of sufficient resources. There need to be genuine endeavours to try to do as much as they can with what they have but, ultimately, if we have to provide additional resources we will do so.

The Hon. K.J. MAHER: For clause 8 but also clauses 7, 9 and 10, what is the date that these clauses come into operation should this bill pass?

The Hon. R.I. LUCAS: That sort of relates to the answer to the question I have just given the Hon. Ms Bonaros. Clearly it will be when it is assented to, but some of the provisions are retrospective to 30 March. I think I am getting furious nods from everybody.

The Hon. K.J. Maher: Is that 7 to 9 inclusive; is that right?

The Hon. R.I. LUCAS: Yes. So the protections in relation to evictions, for example, go back to 30 March. The main thing in relation to evictions—both residential and commercial—is that we are protecting people from 30 March onwards.

The Hon. K.J. MAHER: Clause 8 comes into operation on 30 March; is that correct?

The Hon. R.I. LUCAS: No. It comes into operation when it is assented to, so that will hopefully be in the next day or two, but it will be retrospective to 30 March. I guess the answer is technically correct both ways, but we actually need to have assent to the bill first and then these provisions will be made retrospective to 30 March.

The Hon. K.J. MAHER: The way it is defined in clause 2 is that it is taken to have come into operation on 30 March—7 to 9, which includes 8. If we look at clause 8(12), it defines the prescribed period as meaning the period commencing on 30 March and ending on the date on which this section comes into operation. Does not this section come into operation on 30 March by virtue of clause 2? If it does, does that mean the prescribed period for this section is commencing on 30 March and ending on 30 March?

The Hon. R.I. LUCAS: My advice is that, as you know, the government could delay the proclamation of certain sections of the legislation. So it is possible that the government could delay—we have made no decision—the operation of certain sections until a later date after assent, but it would still nevertheless prevent evictions going back to 30 March.

The only circumstance where that might occur would be as we sort through what this national code of conduct means in relation to, firstly, commercial tenancies, but then what are we in the states going to do in relation to residential tenancies in relation to this vexed issue that, if a landlord ends up getting less money, who is actually going to have skin in the game with the landlord in terms of the less money that they collect, and how much less money is it in relation to a residential tenancy?

That is not defined in the national code because the Prime Minister's national code, in terms of the 50 per cent issue, was talking about commercial tenancies. They have no similar code that governs what is expected to occur in residential tenancies. They have just basically said, 'This is an issue for the states and territories. They need to sort it out.' We have not yet sorted it out in relation to what it is that we do.

The Hon. K.J. MAHER: I thank the Treasurer for his response. I understand all that. I am just wondering about the way this is drafted. Have I read that incorrectly and the prescribed period commences on 30 March and ends on 30 March? Is that how that is drafted, or have I read that incorrectly?

The Hon. R.I. LUCAS: I think my advice is that you have read it incorrectly. It would not make sense if it was just 30 March and then it ends on 30 March. The advice I have is 'prescribed' means a period commencing on 30 March and ending on the day on which this section comes into operation. The bill might be assented to, let's say tomorrow or the next day, but the government actually proclaims only certain sections and delays the proclamation of the section as to when it comes into operation, but it would nevertheless still prevent evictions going back to 30 March.

The Hon. K.J. MAHER: Can the government override clause 2(2) where it specifically says that section will be taken to come into operation on 30 March? Can the government delay proclaiming a section that the act says will come into operation at a particular day?

The Hon. R.I. LUCAS: Barley! Start again. We now have more senior legal advice from parliamentary counsel. Parliamentary counsel's advice is that the earlier advice I gave was correct; that is, we are covering this particular period from 30 March to whenever we assent to the bill, in the next day or two or whenever it might happen to be. That is the period that we are protecting in terms of, in essence, a small version of retrospectivity back to 30 March.

The advice I gave earlier was incorrect in relation to the government might have the capacity to delay proclamation of certain sections of the bill—in particular, these particular sections—to some stage when we sort everything out. We, evidently, do not have that option. As soon as the bill is assented to, the only option we have is delaying assent of the bill.

If we had the view that this was all too complicated, we would have to delay assent of the bill until we had sorted everything else out in terms of answering some of these questions that at this stage do not have answers, or the government can just assent to the bill, which is the intention I would imagine as soon as possible, and then we are going to have to work through as quickly as possible what the implications are going to be for these inevitable conflicts between some tenants and landlords in the residential tenancy space, and frankly, also, some of the issues in the commercial space as well.

The Hon. K.J. MAHER: I do not wish to hold this up any further because it really is a matter of drafting. If the Treasurer could take on notice for later, the way it is drafted, the prescribed period, does it mean it comes into operation when it is assented to rather than when clause 2(2) says, 'taken to have…on 30 March'? I am interested to know the reasons behind drafting it like that and the difference between it coming into operation and the prescribed period being assented to, not having to take into account what clause 2(2) says. We could talk about these sorts of things all night and I do not wish to, so perhaps if that could be taken on notice and an answer provided later.

The Hon. R.I. LUCAS: I am happy to do that. I perhaps invite the honourable member to have a nice discussion with parliamentary counsel, they may well be able to—

The Hon. K.J. Maher interjecting:

The Hon. C. BONAROS: Let's assume during the retrospective period from 30 March until 8 or 9 April, or post that date, somebody is due to settle on a property they have bought and they are seeking to move into that property, but there is an individual currently living in that property and they are renting and they have hit financial hardship because they have lost their job, under clause 8 of the bill if you are in that position you would not be able to be evicted.

If ownership effectively changes from one owner to another and the tenants who happen to be in the property are in financial hardship, are there implications for the new owners if those tenants are unable to move out as a result of their financial hardship or is that simply not covered at all? On my reading of it, I cannot see that it is addressing new property owners at all, but I do not think it is clear. I am not sure that my question is clear either. If you have purchased the property in that time—

The Hon. R.I. LUCAS: Now that the member has explained it, could she perhaps more simply put the question to me and I will seek advice in relation to the circumstances that she is wanting an answer to.

The Hon. C. BONAROS: If settlement has occurred on a residential property and there was a tenant in the property who was due to move out but they have now said that as a result of COVID-19, 'I am experiencing financial hardship and I can't move out,' and in that period settlement occurs and ownership changes hands, what are the implications for the new owners?

The Hon. R.I. LUCAS: If we have understood the question, in the circumstances where the tenant actually agreed, before he or she lost their jobs as a result of COVID-19, to move out—that is, there was going to be a settlement soon after 8 April or 10 April or whatever the date of assent is—and then all of a sudden they lose their job, the advice I have is that that is not really the responsibility of the owner of the property and the new owner of the property: that is an issue, sadly, for the tenant and they really do not have any legal rights under this particular bill to, in essence, say, 'Hey, all bets are off at this particular stage.' That is the advice I have, if I have understood the question correctly.

Clause passed.

Clause 9 passed.

Clause 10.

The Hon. K.J. MAHER: I wonder if the Treasurer is able to answer: I think clause 10(1)(b) provides that a proprietor cannot increase fees and charges payable in relation to a resident contract. For clarity, does that apply to a resident who may be facing financial hardship or is that for absolutely any resident during the time in which this bill applies—that fees and charges cannot increase? Does that mean, whatever contractual arrangement is in place, that if it provides for an increase that is null and void for everyone, not just financial hardship?

The Hon. R.I. LUCAS: The leader raises an interesting question. If we had the advantage of having the Attorney-General within earshot we might just raise the issue, and we might take advice on that should the Attorney-General be listening. Certainly, in relation to the commercial tenancies—because I am most familiar with the commercial tenancies—we do have a provision that says if someone is, in essence, a non-COVID impacted tenant and if there was a scheduled increase in the fees or whatever it happens to be, then what we are doing would not prevent that.

The advice I have is that it is not just in this area of supported residential facilities but also in the clause that we have just been through. It is the same provision in residential tenancies; that is, for example, for someone who is a tenant and is non-COVID impacted, the landlord is prevented from what might be a scheduled regular increase in the arrangements. As I said, should the Attorney be listening, what I am proposing is that she might take advice and parliamentary counsel have a discussion.

Should there be a view that she concludes on behalf of the government that we might want to amend one or both of these provisions, I would undertake to recommit the clauses at the end of the committee stage of the debate. At this stage, this is consistent with what we have just passed in residential tenancies, so I am advised, but it is different from the commercial tenancies provisions. The honourable member has raised certainly an arguable point. Given that we are still going to be with this for another hour or so, we will reflect on it and, before the end of it, I will come back with some sort of an answer.

If the view is that we might seek to amend, we can recommit the clauses. If we do not, at the end of the debate I will put on the record the government's reasons why we think we should stick to the position where we are at. As I said, there is actually a difference between the two provisions that we have already passed. There might be an obvious reason for the differences that has not immediately sprung to mind. We will have a short period to reflect on that. If the honourable member is happy to accept that as an undertaking from me on behalf of the government, I am happy for us to proceed and I will answer it one way or another before we conclude.

The Hon. K.J. MAHER: I thank the Treasurer for that and, yes, 8(1)(b) is very similar to 10(1)(b). We are not suggesting as opposition that this necessarily needs an amendment to fix. There may be a perfectly good policy reason why this course has been taken. This is not something we are pointing out that needs attention and an amendment. There is a difference between clause 7 and clauses 8 and 10, and we are wondering what the policy rationale was, if there was one.

The Hon. R.I. LUCAS: It is a reasonable question. We will investigate.

The Hon. C. BONAROS: In relation to clause 10, I am assuming that is broad enough, as is currently drafted, to include those residents who are relying on the financial assistance of their families in terms of their tenancy as well. It is not that they are necessarily receiving a payment themselves, because we know those payments, but if they are relying on family for financial assistance and the family has been impacted by COVID-19, then would the provisions as drafted account for that?

The Hon. R.I. LUCAS: I am advised that it covers the circumstances the honourable member has outlined.

The Hon. K.J. MAHER: Particularly in relation to clause 10, I am told that many of these facilities run on pretty tight margins. This is not a particularly profitable area. Most if not all people who live in these facilities are on some form of income support. If these facilities are not receiving rent under the provisions of this legislation—I think there are often between 10 and 40 people with very high needs—if a supported residential facility runs into financial trouble as a result of not being able to collect rent, which they may not be able to collect, is the state government anticipating maybe having to step in to make sure the facility does not go out of business and these people are effectively evicted and become homeless that way?

The Hon. R.I. LUCAS: I can say that I have had hundreds if not thousands of requests for consideration of funding support. At this stage, that is not one of them, but that does not mean that the issue might not have been raised with the Minister for Human Services and the Department of Human Services. I would guess in the first instance it would be an issue for her department. If they were unable to resolve the issue they would obviously come to me as Treasurer, but at this stage I have to say it is not an issue that has been raised with me.

The Hon. C. BONAROS: I have one final point to make in relation to this and it is one that I am acutely aware of because of the need to free up hospital beds at the moment. I can give you a scenario where I am just trying to figure out what would happen in this situation and what supports would be available. If you have somebody who long term has been taking up a hospital bed because of the nature of their illness, and those hospital beds have now been deemed necessary for, effectively I suppose, isolating them or quarantining them for COVID-19 purposes, and that person is effectively forced into a situation where they must move into a supported residential facility but cannot necessarily meet the costs associated with that, because there are implications, of course, obviously with the NDIS, there are implications as to whether they are a short-term resident or a long-term resident.

I say this because I am acutely aware there are a group of residents potentially who are being transitioned from a hospital to supported residential facilities, and if they are short-term as opposed to long-term residents then they effectively now are required to foot the bill of that residential facility irrespective of whether they can afford it or not because there are no other options for them.

I am not suggesting that we address this now but I am seeking, perhaps, an undertaking from the government to explore that further and I can speak to this personally because I have one of these cases. There are more implications than just this: there are NDIS implications, there are short-term versus long-term implications, and the need for hospital beds, and then the implications that they have in relation to supported residential facilities. If I can have some undertaking from the minister or the Treasurer that we can have discussions about those, that would be appreciated.

The Hon. J.M.A. LENSINK: Certainly. The short answer to that is yes, I would be more than happy to. If I can perhaps explain a little bit about the supported residential facility sector and where it is because I was listening to the Leader of the Opposition's questions as well. Traditionally they have been funded by the tenants and their pension income. There was a lot of concern pre-NDIS transition that, because the board and care subsidies as part of the funding has gone to the NDIS, proprietors would fall short.

That has actually not turned out to be the case because very high numbers, I think over 95 per cent of those residents, are NDIS eligible which means that they are in a much better situation than they were pre-NDIS in terms of their care, so that goes to the question of the Leader of the Opposition in terms of their viability, that the proprietors are not in the financially difficult situation that they might have been pre-NDIS.

In terms of Ms Bonaros's questions about those individual cases, yes there is certainly a lot of work going on at the moment to ensure that clients who do not need to be in hospital are in other placements and that work is taking place between SA Health with the NDIA and with DHS. I think I mentioned in question time today that we have people going to U City and Hampstead as dedicated locations for some of those patients, so that we have patients who do not need to be in hospital out of hospital. These particular issues that she is talking about in relation to SRFs are not something that I have heard of before but I am more than happy to assist in any way I can to make sure that we are looking after these clients.

Clause passed.

New clause 10A.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 13, after line 2—Insert:

10A—Provisions applying in relation to certain water and sewerage charges for sporting clubs

(1) The operation of the Water Industry Act 2012, the Local Government Act 1999 and any other Act or law prescribed by the regulations (being an Act or law relating to the supply of water, sewerage services or storm water management) is modified as follows:

(a) the Minister under the relevant Act may, by notice in the Gazette—

(i) waive an amount of prescribed costs payable by a specified sporting club, or a sporting club of a specified class (whether incurred before or after the commencement of this section); or

(ii) exempt (conditionally or unconditionally) a specified sporting club, or a sporting club of a specified class, from a specified provision of those Acts;

(b) the regulations under this Act may modify or suspend the operation of any Act or law relating to the supply of water to, the use of sewerage services by, or the management of storm water by, a specified sporting club or sporting clubs of a specified class;

(c) a term of any contract, agreement or other instrument that is inconsistent with the modifications made by this section will, to the extent of that inconsistency, be of no effect.

(2) In this section—

prescribed costs means—

(a) an amount payable for the supply of water (whether potable or otherwise); or

(b) an amount payable for the use of sewerage services; or

(c) an amount payable in relation to storm water management; or

(d) any other amount of a kind prescribed by the regulations.

sewerage services has the same meaning as in the Water Industry Act 2012.

The amendment effectively mirrors an amendment that was moved by the member for Frome in the other place, and it also goes back to the issue that I raised when I asked some questions of the Treasurer in relation to concessions from various rates and charges, specifically charges under the Water Industry Act and the Local Government Act. Effectively, what it tries to do is enable the relevant minister to provide a waiver, if you like, from having to pay those fees and charges if you are a sporting organisation, a sporting community club.

I think it is fair to say, having read the Hansard from the other place, that the Attorney herself recognised that COVID-19, including the social distancing and the mass gathering rules, has in her words really 'smashed' the sporting clubs, and even their capacity to have a revenue base. Their membership fees are not coming in and so, in the Attorney's words, you have a 'double hit' and you have ongoing expenses.

Of course, there are ongoing expenses that these clubs are having to meet irrespective of whether those gatherings are taking place and irrespective of whether their members can attend. Watering their ovals is the obvious example. I think the Treasurer also acknowledged this. I have a quote from the Treasurer, which says there are terrible impacts on community sporting organisations. He has referred to the Stadium Management Authority in that instance.

This amendment goes, I suppose, to the heart of those community sporting clubs that provide so much to our community members. It is an issue that I know the member for Frome pursued, because there are obviously sporting clubs in his electorate that are being 'smashed', in the words of the Attorney-General.

I note also that it is an issue that the member for Reynell has been raising and has been discussing with the Minister for Recreation, Sport and Racing. My understanding is that the member was still awaiting a response to the request that was made, not, obviously, via amendments to the legislation but outside the scope of this legislation.

I think some very valid points were made during the debate yesterday—certainly what I read of it—in terms of the need for this amendment. Unless the local government council comes to the party and says, 'We are going to waive or reduce your fees or charges for a period of time,' or unless there is an application made to SA Water for some temporary relief, there is no other means available to these organisations, which we know provide extremely valuable services to our communities.

I am sure there are a lot of people who in this COVID-19 period would probably have a lot to gain from being able to gather at these sorts of places, but unfortunately are unable to do so at the moment. That does not mean that the liabilities of these places that rely on income based on membership and based on public gatherings occurring there go out the window. They are finding themselves in a very difficult situation. I think it is also worth noting, as the Attorney did, that some of them do so off the back of the bushfires earlier this year as well.

For them it has been a triple whammy, not just a double whammy. Given the numbers in the lower house when this amendment was debated, I thought it would be appropriate for us to reconsider it in this chamber and also to get the views of the government, specifically the Treasurer, as to whether something specific needs to be done in line with the amendment to protect these groups that are doing it extraordinarily hard at the moment.

The Hon. R.I. LUCAS: As I said and I repeat, in the spirit of trying to reach agreement on the bill, the government is going to support a significantly larger number of amendments that have been moved in the Legislative Council than it might otherwise normally do, whether that be a Liberal or Labor government. This is not one that the government will be supporting, and I want to explain the reasons why. I hope it is not the cause of ultimate disputation between the houses in relation to it, but in the end, if it ends up being part of the bill, it will not be a provision that the government will enact anyway, and I will give a couple reasons as to why.

A range of groups at the moment are being smashed by COVID-19. Sporting clubs are one, but I assure you that at the moment they are being outnumbered by charities whose fundraising capacities are being destroyed, massacred, smashed—whatever word you want to use—in some instances because of bushfire fundraising appeals but now as a result of COVID-19. Non-government organisations right across all the sectors are being smashed, in some cases because the charities are not getting the funding. One of the very big charities in South Australia that raises half a million dollars a year for one of the very well-known NGOs in South Australia says that it is just not going to be able to raise that money, and therefore that NGO is not going to get the half a million dollars this year.

So the intriguing question in all of this—as much as it is important to me, because I am probably as big a sporting nut as there is in the chamber and, if I am inclined to support anything, I am inclined to support sporting organisations—is that I think it would be unfair in our bill to single out one area that is being smashed from charities, NGOs and any other number of groups that are equally as worthy as sporting clubs, etc. That is the first point I would make.

The second point I make is that all of them are being considered for funding support through the Community and Jobs Support Fund, which is the $250 million fund we have announced. We will not be able to assist every charity, every NGO and every single sporting club in South Australia because we just do not have the physical capacity to do so.

In relation to sporting associations, we have said—and I said in recent radio interviews—we are encouraging the retention of associations and groups, which will enable the continuation of the league, the association or whatever it might happen to be, albeit recognising that each of the individual clubs within the association are also struggling. But if they lose their essential infrastructure, their organisational capacity, then the clubs equally will flounder as well. If we have the capacity to assist more and more clubs, charities and NGOs then we will do so, but by and large we are having to make some difficult decisions about where this $250 million—a quarter of a billion dollars—of funding goes right across the board.

The other thing I would say in relation to water and sewerage charges is repeating the point that we will be making significant reductions from 1 July in relation to water and sewerage charges right across the board. So households, industry groups, commercial operations and anybody who uses water and sewerage throughout the state is going to see a reduction from 1 July. That will be of greater significance to some of those sporting groups that water their ovals, fields, lawns or whatever it might happen to be as well. But, of course, it will not be of as much significance to a charity or an NGO where water costs are not a significant part of their particular bill.

We know that some of those organisations that have a large part of their fixed or variable costs being water and sewerage costs will be getting assistance from 1 July, but there are some charities and NGOs that will not be. One of the difficult issues we have to work through in terms of our priorities is if someone is already getting some assistance from 1 July onwards in terms of their water costs and you have a charity that is not getting anything. We have to make those difficult decisions through the Community and Jobs Support Fund as well.

The final point I will make is that the way this is crafted is understandable; essentially it leaves the minister in charge of the Water Industry Act and other related acts as being the one who makes these decisions. However, ultimately the minister is going to have to come to me, as Treasurer, to seek approval to waive these particular fees. It means less revenue coming into his fund or department or whatever it is, and he will need to seek my approval as Treasurer. As I said, if the amendment remains in it we will not be implementing the amendment, because we will be implementing the assistance we can through the Community and Jobs Support Fund and through other related areas as well.

I said that was the final point, but one other point I can make is that with the West Beach Trust, for example, I do not think it has been announced yet but already a range of the decisions there will have direct impacts on a number of smaller sporting organisations within that West Beach Trust area. Those of you who know the western suburbs know that there is a very big community sporting infrastructure base there, a lot of sporting clubs associated with it, and the waiving of fees and charges we are about to announce there will have a significant impact for a small number of those sporting organisations that are currently paying fees and charges to the West Beach Trust.

For all those reasons the government cannot support this. We accept the good intentions of the member for Frome; I have a high regard for him, as I do for the Hon. Connie Bonaros. I accept that but, for the reasons I have outlined, I urge the majority in the chamber not to insist on this particular amendment as being a cause of disputation between this and the other house.

The Hon. T.A. FRANKS: This crosses between sport and recreation and local government, but as I was monitoring the debate last night I thought I would put my two cents in. Just because there are other worthy causes, just because there are many other worthy avenues that need government support, it does not mean this should not also get that support. I note it was a tied vote in the other place and the government used its casting vote to rule it out last night. The Greens will be supporting this tonight.

The Hon. K.J. MAHER: I was going to make a contribution very similar to that of the Hon. Tammy Franks; that if there were others they should be included. This is the amendment we have before us, this is the amendment that was moved by the member for Frome in another place, and I think we all agree on the merits of this amendment. If there are other things that ought to be included beyond what we have before us—because, of course, this is what we have before us—including charities and other things, I think we would all be happy, if we needed to, to come back next week to make further amendments to include those.

I do understand the points the Treasurer was making that maybe more than just this should be included, but we do not think that, per se, is a reason not to vote for the amendment. Of course, that is the amendment we have before us. It is not prescriptive in that these things must happen; the word 'may' appears throughout it all the time. It is not something that will necessarily happen, but if others should be included I think we would all be open either to a government amendment tonight or to coming back sometime soon to include any groups of merit who should be included and gain the benefit of this.

The Hon. T.A. FRANKS: As another reflection, it is quite outrageous that the Treasurer said the government simply would not amend it anyway and implement this measure should this council endorse this amendment. I think that is actually quite outrageous behaviour from the Treasurer. It does not inspire that trust and transparency we are looking for.

The Hon. C. BONAROS: For the record, obviously we are acutely aware that there are lots of organisations, including charities and including domestic violence services that I raised during question time today, that are in desperate need of funding at the moment. The amendment that I put up, as I said, mirrored the member for Frome's amendment. There is always scope to broaden the category that falls within that; in fact, that is something we had canvassed when we were drafting this. Obviously, we had very limited time to work on this amendment. Members will be aware, just from the timestamp on the amendment, that it came rather late, so I did not want to overcomplicate it but I certainly wanted to get it on the record and get an indication of whether there was support for the proposal in this chamber, whether it be in this form or an extended form that covers other charities and organisations that find themselves in similar organisations to charities.

Following discussions about the member for Frome's amendment with members from the other place and the numbers in terms of the vote—it was a tied vote and there was a casting vote used—we thought it would be appropriate that consideration of this matter also be given in this chamber. It is certainly not intended, and it was never intended, to discount the situation that any other group finds themselves in. It is a matter that has been canvassed with the Minister for Recreation and Sport for some time by the opposition, by the member for Frome, and it is something that I thought was worthy of some debate in this chamber.

New clause inserted.

Clause 11.

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

Amendment No 1 [Maher–1]—

Page 13, line 35 [clause 11(5)]—Delete 'may, if the Auditor-General thinks fit to do so,' and substitute 'must'

This is a reasonably simple amendment. The clause as it currently stands gives the option for the Auditor-General to prepare a report about a decision made under this clause. We are simply changing 'may' to 'must' so that if that is exercised under this clause that 'must' happen rather than be a discretion and 'may' happen.

The Hon. R.I. LUCAS: Just to demonstrate how agreeable the government is, we are prepared to support the amendment. I place on the record that our advice is that the Auditor-General has advised Treasury officers that, if he disagreed with the need for COVID-19 Treasurer's Instructions or his views were not considered, he would immediately publish a report under the provision. So that was his intention. From the government's viewpoint, as I said, demonstrating that we are being very reasonable in relation to our management of this bill, we will support the amendment.

Amendment carried.

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

Amendment No 2 [Maher–1]—

Page 14, line 10 [clause 11(8)]—Delete 'may,' and substitute 'must, as soon as is reasonably practicable'

Again, this is a very similar matter. This relates to making sure we have access to reports that are tabled; that, rather than the discretion that it 'may' be published by the Auditor-General on their own website, it 'must' be.

The Hon. R.I. LUCAS: Again, showing how reasonable we are, we are prepared to support the amendment for similar reasons.

Amendment carried; clause as amended passed.

Clause 12.

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

Amendment No 3 [Maher–1]—

Page 14, line 22 [clause 12(1)]—After 'section 11' insert 'and to this section'

Amendment No 4 [Maher–1]—

Page 14, after line 33—Insert:

(3) If the Auditor-General conducts a review under this section instead of a particular audit required under an Act, the Auditor-General must, as soon as is reasonably practicable but in any event before the next time that audit is required to be undertaken, undertake the audit in accordance with the relevant Act.

In effect, these two amendments require that if the Auditor-General elects to conduct a review under the legislation, the Auditor-General may conduct the review under subclause 12(1) in such a manner as the Auditor-General thinks fit. There is a huge range in discretion as to how that review may be conducted. It is not the same as rigorous audit processes and what is required of audits by accounting and other standards. This gives a great deal of leeway under clause 12(1) for a review—again, in such a manner as the Auditor-General thinks fit.

We are suggesting that if a review is conducted instead of an audit, after the world returns to normal and this bill ceases to be in operation, then before an audit of a department or agency is conducted, the Auditor-General goes back and replaces the review that they conducted during these extraordinary times with an audit. What is being required here is that, where the Auditor-General elects to conduct a review in any manner the Auditor-General thinks fit, before the next proper audit is conducted, the review is revisited and a proper audit is conducted for that financial year. This is so that there is consistency and a fair comparison with the performance of the agency or department.

The Hon. R.I. LUCAS: Based on the advice we have received from the Auditor-General and Treasury officers, the government is going to oppose these particular amendments, and I want to outline the reasons why. I will cut to the bottom line: firstly, the advice we have received from the Auditor-General is that if these amendments were to be successful, they would eliminate any relief that a review might be able to offer him and his officers if there were extraordinary circumstances that warranted a review in place of an audit. That is the advice we have received from the Auditor-General.

The Auditor-General has advised us that he would only conduct a review as an absolute last resort—that is, if he was unable to do his first and absolute preference, which is to do an audit of a particular department, because of COVID-19 and whatever the particular problems were in a particular agency. The Auditor-General has made it quite clear: if he can do an audit, he will do an audit. He would only conduct a review as an absolute last resort if he made the judgment that he just could not audit a particular department or agency.

He actually says that rather than use the review option, which is there, his next best option would be to slightly delay the completion of the audit. That would not be satisfactory either; nevertheless, that is his preference. His view is that if he says, 'It is just impossible for me to do what I am required to do, which is an audit,' the best that he can do is review that particular agency, given the circumstances of the agency due to the COVID-19 pandemic. Treasury agrees with this view.

The advice of the Auditor-General and Treasury is that it is impractical for him to do a review and an audit for the one year. This is what is being required here. What the opposition's amendments are seeking to do is, where the Auditor says, 'It is impossible for me to do an audit but I am going to do a review and give some satisfaction to the parliament that I have done a review'—of course he will do an audit of that particular agency in the following year, and he will compare the accounts of that year with the accounts of the previous year.

What he is saying is, 'If I make a decision that it is impossible to do an audit, and I just cannot do an audit but I will do a review,' he is then saying that it is just impractical under this amendment to say that, having done the review, then he has to do an audit because he is going to be into the next year when he is doing the audit for the following financial year. So you have to bear in mind where we are up to at the moment. We are nearing the end of the 2019-20 financial year. He is in the latter stages of his audit process. He has to have all these accounts audited by October. Agencies have to submit their document requirements by August in a non-COVID-19 pandemic environment.

He is about to enter the really busy period of his audit process, so he is about to do that. If he makes the judgement that it is just impossible and, if COVID-19 continues for six months or nine months, for example, he has done the review of a particular agency and then he is in the middle of next year 2020-21, and half of 2020-21 or three-quarters of 2020-21 is also COVID-19 impacted, he is having to prepare for an audit of the 2020-21 accounts. This amendment is saying to him, 'It is not good enough for you just to have done a 2019-20 review of the department. You now have to go back and do a 2019-20 audit of the department at the same time as you are doing a 2020-21 audit of the same department.'

The advice we are getting is that it is impractical. The benefit, which he would only use rarely in relation to a review, would be completely lost. The benefit of a review is that he makes the judgement in rare circumstances. It is his judgement—it is not the government's—that it is impossible for him to do the audit and, therefore, he will do a review in relation to that particular agency's accounts and present that review report to parliament in the normal circumstances and be transparent and accountable.

Bear in mind that the Auditor-General comes before the Economic and Finance Committee at least once or twice every year. I do not know whether it still happens but he used to come before the Budget and Finance Committee of the Legislative Council every year to be answerable to parliamentary oversight and accountability in relation to those particular issues. So he is accountable and, if he has conducted a review, members of the opposition and the crossbench will be able to interrogate him and his officers in relation to the review process and how things are going in that particular department.

I know the Auditor-General. He is not a partisan person. He will make fearless, independent judgements of his own. I have great regard for his independence. If he says, 'I am only going to use this review provision in extremely limited circumstances,' I think we ought to leave that judgement to the Auditor-General. He is an independent officer and, if he says it is only going to be very limited and if he says that if, having done a review, you are now going to make me do an audit, it defeats the whole purpose of doing the review in the first place. He is then probably going to have to make a judgement about trying to do an audit which he says is almost impossible to do in the first instance.

For those reasons, I urge the Legislative Council not to support this particular amendment and to support, as I am advised, the views of the Auditor-General. From the government's viewpoint, from the Treasurer's viewpoint, I am perfectly relaxed. If the Auditor-General had said to me or the government officers, 'There is no need for a change in this particular area,' it is not something we have driven. This is something which has been raised; it has been discussed with the audit staff. It has related to some of the other provisions in the Public and Finance Audit Act where I said earlier that agencies just might not be able to produce their reports, not only to the Auditor-General but to various other bodies in the time frames because of COVID-19.

I am thinking in particular of the health department in relation to the issues that they are currently confronting. They have to be saving lives at the moment, as supposed to the very important issue of financial accountability. I am literally, as Treasurer, almost writing blank cheques for the health department in terms of face masks and additional ICU beds and all those sorts of things. It is completely atypical, in terms of the normal environment that operates in any department and also in the health department, but we are in an emergency. We have to make these decisions and some of the niceties, in terms of accountability and being able to produce documents for the Auditor-General, just might not be able to be achieved in a typical time frame if we are going to try to save lives.

If the priority is to save a life, as opposed to meeting a deadline for audit staff under the Public Finance and Audit Act, I am going to have the capacity to say the priority is to save lives in this particular area. I am sure we would all agree that that should be the priority in this particular area, so I would urge members, on reflection, given that we have now been provided with the advice of the Auditor-General, that we do not insist on this particular amendment.

The Hon. K.J. MAHER: I might just quickly respond for the benefit of the chamber. We are not going to die in a ditch over these two amendments; however, I think some of the points that were made by the Treasurer in part reinforce what we are saying. If it is the case that this is going to happen extraordinarily rarely, not be used very much at all, then the other argument is that there is no harm in going back and revisiting and doing an audit once this is all over if it is going to be that narrow in its application. The reviews are going to be used, but as I said we are not going to die in a ditch over this.

No-one here wants to see someone signing off on a bit of paper in preference to doing something that is going to save a life. That is not what anyone wants to do here. If this lasts for a lot longer, there is not just this. There are a whole lot of other things we are going to have to come back and revisit to change anyway. If this pandemic goes on and on, we will all be back here at a later date changing things to make sure that you can change laws to do things that would otherwise be the normal functions of government.

So we are not suggesting at all that the Auditor-General ought to be making decisions or the government and its agencies as a whole make decisions about what is a priority right now. The priority is saving lives right now. What we are suggesting is that, once this emergency is over, it gets revisited at that time and the Auditor-General then replaces that with an audit in those very rare instances, as the Treasurer has outlined, that the Auditor-General has elected to conduct a review, but only at a time when it is not a decision about the scarce resources of the government being used to tick boxes and sign off on audits in preference to saving lives.

The Hon. M.C. PARNELL: I will be very quick. We were initially inclined to support the amendment, but having heard both the Treasurer's delivery of the Auditor-General's own views and the Hon. Kyam Maher's reflective comments just now that this is not a die in the ditch issue that could be revisited later, I do not think we should support the amendment today.

There is no criticism of the honourable member for moving it. He has clearly seen that reviews are less rigorous than audits. Audits are the ultimate in accountability. Normally, we want the ultimate in accountability, but what the Treasurer described as niceties may well be impractical in this particular time period. I think we are all in furious agreement that we would rather people be out there saving lives than filling out forms, but we can revisit this later.

The Hon. C. BONAROS: I indicate for the record that that is precisely the view that SA-Best will take in relation to this. Treasurer, for what it is worth, we are all extremely grateful for the blank cheques that you have been writing for SA Health in an effort to save as many lives as possible. This is an issue that, when we first considered it, obviously we said we would support. You have provided some justifications today as to why that should not occur today, but it is not something that we cannot revisit at a later stage. I do not think any of us intended at all throughout this debate to underplay the importance of the role the government is playing in terms of ensuring that all of us and our families are safe throughout this crisis.

Amendments negatived; clause passed.

Clause 13.

The CHAIR: We have an amendment in the name of the Hon. Mr Maher.

The Hon. K.J. MAHER: I might seek your guidance, Mr Chair. I know the government has views on the amendment. Is it possible to discuss the clause generally before I put the amendment and perhaps, in discussing the clause generally, have the government put forward their views? That may give some guidance as to whether the amendment is in fact moved eventually when we finish talking about this clause.

The Hon. R.I. LUCAS: Thanks to the honourable member for a very reasonable way to approach this. Let me provide the advice that I have been provided by the Attorney-General and her officers in relation to what might be a possible amendment to delete paragraph (a). If that were to be the case, the government would be opposing it. The effect of the amendment, if it were to be moved, would be to limit the operation of clause 13 so that only appointments or matters that would be expiring or ceasing can be extended by way of regulations.

The government notes that extensions are not just automatically handed out under this provision but, rather, must be addressed by way of regulations. Paragraph (a), which is being contemplated to be removed, is directed to allowing postponements or extensions of time for any number of arrangements that may be disrupted by COVID-19.

Let me give some examples on behalf of the government. There may obligations either under statute or under private legal arrangements, such as contracts or the constitutions of incorporated associations, where it is impractical and unsafe to attempt to comply. Examples might include the conducting of meetings, such as AGMs—I think we discussed that earlier, before the dinner break— the filing of reports, and payment of fees and charges to the government from private persons or bodies.

The difficulty, of course, is that as the effects of the pandemic are not fully understood, it is not possible for the government to predict just what sensible extensions may be required. As such, the flexibility to provide extensions of time by way of regulations is needed. For these reasons, the government does believe that retaining paragraph (a) in clause 13(1) is important and the government wishes to see the flexibility outlined in clause 13(1)(a) retained in the bill.

The Hon. K.J. MAHER: I thank the Treasurer for that comprehensive explanation. I might just give some examples, because we legislate with the best intentions in mind but often end up having to legislate for the worst-case scenario or for the extreme example of how laws may be used. For example, could clause 13(1)(a) be used to pass a regulation that time limits to respond to FOI applications might be six months instead of the current 30 days?

The Hon. R.I. LUCAS: The legal advice is that it could be used for something along those lines but, as deliciously tempting as that might be when you are in government as opposed to when you are in opposition, I can place on the record it is not the intention of the government to be using this particular provision in that particular way.

I acknowledge the member has indicated there might be good purpose and there could be evil purpose in relation to a particular provision. How one would define in this particular paragraph good purpose as opposed to evil purpose would be a challenge even for the Leader of the Opposition, I suspect. I can just indicate in relation to that particular issue that the government has no intention of using this particular provision for such an eventuality.

The Hon. K.J. MAHER: The Treasurer gave a couple of examples of how it may be intended to be used, but are there other examples he could give? There were those examples, but are there maybe more so that we can have an understanding of how the government may be intending to use this? I guess the question, Treasurer, is: are the examples you gave the only ones that the government has turned their minds to and have been thought of by the government or are there others that have been presented to the government?

The Hon. R.I. LUCAS: The honest answer is that rather than having a long list of examples, they were the ones that immediately came to mind. I am sure if we sat down the legal officers in the Attorney-General's Department to think up a whole series of other examples, they would be able to come up with a whole series of other examples, but they are the ones I have been provided with. They are really the only ones I can share at this stage.

I think as we run through those they make eminent sense. The member has outlined that if the government were so minded it might be able to use it for nefarious purposes. I think the Hon. Mr Parnell said we, the parliament and the community, are placing a lot of trust in a government through a six-month period, much more trust than we would normally place in any government, Liberal or Labor. That is just the brutal reality of it. I can only indicate the bona fides of the government's intentions in relation to this. We are only interested in fighting the COVID-19 pandemic and saving lives. We are not intending to in essence extend FOI applications.

I am just reminded that there will be some advantage for other private organisations and private citizens. We referred earlier to the examples of private legal arrangements and contractual arrangements etc., so it is not just the government that is potentially going to be able to benefit from 13(1)(a); it may well be private contracting parties with the government, for example, as well. So it is not just intended for the benefit of the government side of the equation. There are potentially contracting parties from the private sector or individuals who stand to potentially benefit from these particular provisions.

The Hon. K.J. MAHER: I thank the Treasurer for his explanation. I do note that this is somewhat limited by the fact that this is not something the government can just decide to do. It needs to be done by regulation. That requirement, combined with I think the original amendments filed this morning by the Hon. Mark Parnell to shorten the time frames within which regulations need to be laid on the table for the purposes of this act and the limitations on promulgating regulations immediately, as the Hon. Mark Parnell put forward this morning—I think when you combine the need for this to be done by regulation with the amendments the Hon. Mark Parnell put forward earlier, given those two things, we will not be proceeding to move with our amendment and will be supporting this clause.

Clause passed.

New clause 13A.

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

Amendment No 1 [Parnell–1]—

Page 15, after line 12—Insert:

13A—Modification of requirements relating to laying of reports before Parliament

(1) Despite a provision of any this or any other Act, a requirement under an Act that a report or other document (however described) be laid before either or both Houses of Parliament within a specified period will, by force of this section, be modified so that the report or other document is required to be laid before either or both Houses of Parliament (as the case requires) within 7 calendar days after the occurrence of the event that requires the report to be so laid before Parliament.

(2) A requirement under subsection (1) will, if the Parliament, or the relevant House of Parliament, is not sitting during the 7 day period, be taken to be satisfied by the report or other document being delivered to the President of the Legislative Council or the Speaker of the House of Assembly.

(3) If the President of the Legislative Council or the Speaker of the House of Assembly is absent at the time a report or other document is to be delivered under subsection (2), the Clerk of the relevant House will receive the report on behalf of the President or the Speaker (as the case may be) and the report will then be taken to have been delivered to the President or the Speaker.

(4) The Clerk of the relevant House or Houses must, as soon as is reasonably practicable after a report or other document is received under subsection (3), cause the report or other document—

(a) to be published on a website determined by the Clerk; and

(b) to be distributed (whether electronically or by some other means determined by the Clerk) to each member of the relevant House or to each member of Parliament (as the case requires).

(5) The President of the Legislative Council and the Speaker of the House of Assembly must, not later than the first sitting day after a report or other document has been delivered (or is taken to have been delivered) to the President or the Speaker under this section, lay them before their respective Houses.

Quite simply, at the start of each sitting day we hear the ministers tabling various papers in parliament. Those papers are then made available not just to us as members of parliament but to the public and to journalists. Whilst most of them go through to the wicketkeeper without anyone paying too much attention, these are very important accountability measures.

When you do a search of the South Australian statute book you would find that the requirement to table documents in parliament is usually expressed in a certain number of sitting days after the document has been provided to a minister. So, for example, a statutory officer might be obliged to prepare an annual report by a certain date. That report is provided to a minister. The minister then has six sitting days, often, to table that in parliament. If we are only going to sit once a month or even twice a month, the length of time that it will take for these documents to find their way to parliament and therefore to the public realm will be quite long.

I am not going to go into anymore detail, because I have discussed the matter with the Attorney-General, I understand that this amendment has support and I look forward not only to government support but opposition and crossbench support as well.

The Hon. R.I. LUCAS: The government is in furious agreement with this magnificent amendment from the Hon. Mr Parnell and, as I said, in the demonstration of reasonableness from the government we wholeheartedly support it.

The Hon. K.J. MAHER: I indicate that the opposition will be supporting this, but we will not be saying that the Hon. Mark Parnell is magnificent.

The Hon. C. BONAROS: I indicate for the record that we are also in furious agreement with this amendment.

The CHAIR: Members, I just need to point out that there is a small typo in 13A(1): 'Despite a provision of any this or any other Act', so that will be tidied up. I need to bring that to your attention.

New clause inserted.

Clause 14 passed.

Clause 15.

The Hon. K.J. MAHER: This clause makes changes into any act or law that requires meeting in person to potentially take place by audiovisual means. Does that mean that if regulations are so prescribed that parliamentary committees, and indeed parliament itself, could take advantage of this law? Is it possible that by regulation the government could say that parliament can meet by Microsoft teams or some other method?

Members interjecting:

The CHAIR: Order!

The Hon. R.I. LUCAS: The answer in relation to parliament is no, but in relation to parliamentary committees is yes. The government has no intention in this legislation to allow the audiovisual conducting of parliament. It is a novel thought; how it would be conducted would be very interesting. It is not envisaged in this legislation, but I am advised that the parliamentary committees will be able to avail themselves. The motion that the honourable Leader of the Opposition indeed moved today, and it was supported by a majority in the chamber, actually envisages audiovisual means there. Clearly, Microsoft teams or WebEx, or whatever the department is going to use, is possible.

The Hon. K.J. MAHER: If the Treasurer could expand on the reasons that the meeting of parliament cannot be changed by regulation?

The Hon. R.I. LUCAS: I will get advice in relation to regulation. I am just saying the government does not support the view of the parliament.

The Hon. K.J. MAHER: What is the reason? Is it that the parliament is not governed by an act in terms of its meeting?

The Hon. R.I. LUCAS: The very high-powered legal advice I have now received is that, for the parliament, it would require an express provision in a statute to override the provisions of the Constitution Act. That is the legal reason as to why we are not able to avail ourselves of this particular regulation-making power to do so. The advice is we would need an express provision in a statute to override the Constitution Act to expressly provide for parliament to do so. That is the legal advice I have just received.

In relation to committees, I am told that the honourable member was able to move for audiovisual conduct of a select committee because the select committee are operations within the chamber and we control our own destiny. What this will do will allow audiovisual for standing committees, because there is a Parliamentary Committees Act which governs the operations of the standing committees.

So there is a statute, there is a Parliamentary Committees Act and, therefore, there is a distinction between parliamentary committees. We are a law unto ourselves in relation to select committees, and you moved a motion which was duly passed by the chamber to do so. This will allow audiovisual for standing committees because there is a parliamentary committees statute, which evidently this now will allow regulations for audiovisual conduct.

The Hon. K.J. MAHER: I am sure the Treasurer will correct me if I have this wrong. Clause 15 provides that, despite the provision of any other act or law, when it comes to the Constitution Act, the Constitution Act protects itself from provisions like that by, presumably, a provision in the act that says, 'Even if another act says despite any other act or law you cannot change the Constitution Act.' If that is the case, are there any other pieces of legislation that are protected from being changed by a different law that says 'despite any provision of a relevant act, or any other act or law'?

The Hon. R.I. LUCAS: I do note that the member has sort of answered the question himself. The Constitution Act is a one-off; it is unique. My high-powered legal advice says they cannot think of any other act.

The Hon. K.J. MAHER: This will be my last question on this. If it was to also apply to the Constitution Act, it needed to say, 'Despite any provision of a relevant act, or any other act or law, and this also applies to the Constitution Act,' and then it could change it, but it cannot just with that; is that correct?

The Hon. R.I. LUCAS: My legal advice is that, theoretically, we could seek to do so in this particular act, either in the way the honourable member suggested or, indeed, in other ways. The preference is, if you are seeking to do so, you would explicitly provide in a statute, whether it is this one or some other statute, that 'Thou shalt allow the parliament to be conducted by audiovisual means,' and for those of us who would not be supporting that, you would have to have some sort of protections in there as to how it was to be conducted and how votes were to be conducted and all those other sorts of things in relation to the conduct of the parliament. But, look, we are heading down a rabbit hole with a ferret—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: Exactly. The government has no intentions in this legislation of conducting the parliament through audiovisual means.

The Hon. C. BONAROS: I think the answer the Treasurer has just provided goes to the heart of issues that were raised on Monday during the briefing that we had on this bill. They were around whether or not audiovisual capabilities could extend to parliamentary committees. The response that we received, which was referred to by other members during the second reading debate, and that is the one that came in yesterday evening at 9.39pm. The response that we received from the Attorney's office was, 'Yes, this clause is wide enough to include parliamentary committees.'

The reason we asked that question and that was raised on Monday was because there may be committees that would like to undertake some work and they may not be a standing committee but a select committee, but because of the social distancing rules and limitations that apply to the use of audiovisual capabilities, will not be able to do so. That is the reason we sought clarification in relation to the provisions that relate to audiovisual capabilities.

One of the issues we have had is that, even if there are members who are not physically present to attend the meeting but are able to take advantage of the use of Skype, Zoom or whatever other audiovisual capability they can, it is my understanding that those members who are not physically present in the parliament are unable to move any motions or any resolutions because they are not physically present at the committee.

Given that this was the subject of some discussion on Monday and the response that we have received, I would like some clarification in relation to the select committees and what limitations will apply to them if members are not physically present at hearings.

The Hon. R.I. LUCAS: Based on the advice that I have just received—and we had one today that established its own rules under the sessional orders or the standing orders of the Legislative Council, so we have established a select committee today—the issue of what the powers are under that are really issues for the Legislative Council and our standing orders. They are not being governed by this particular statute or amendment. The advice I have just received—

The Hon. C. Bonaros: That is exactly what we asked.

The Hon. R.I. LUCAS: The advice we have received relates to standing committees.

The Hon. C. Bonaros: That is not the advice we received.

The Hon. R.I. LUCAS: That is the advice I have just put on the record. I can only share the advice I have just received—that it relates to the standing committees—and we should distinguish between standing committees and select committees. That was advice both from the clerks and also the high-powered legal advice available to the government. I can only share the advice I have just received with the honourable member. Under both arrangements, parliamentary committees, both standing and select, will be able to conduct themselves through audiovisual means. We have done one through our own standing orders here in the Legislative Council. This is going to make provision for the standing committees.

The Hon. C. BONAROS: Again, I make the point, because we canvassed this quite extensively on Monday, and there may have been other amendments that would have been moved to this bill had we known that this would be limited to standing committees, but that is not the advice we have received. In fact, on Monday I think the Hon. Mark Parnell was the one who canvassed whether we needed to move for changes to standing orders in order to ensure that the same applies to select committees.

We have been awaiting a response on that and the response that we have received says, yes, it includes parliamentary committees. The response we have now received is, yes, it includes parliamentary committees but only if they are standing committees. I will just qualify this: the reason the Hon. Kyam Maher's amendment included those provisions obviously highlights that there was an issue which we were not made aware of, and now there will be other select committees that will find themselves in the situation that I have just described in terms of not being able to make use of audiovisual technology to hold meetings.

The Hon. R.I. LUCAS: I cannot help the honourable member in relation to the operation of other select committees. I assume that is an issue for this chamber in relation to motions to amend the terms of reference of the operational procedures of the select committee. As the Hon. Kyam Maher has moved a motion in relation to his select committee, I do not see it as really the role of a statute that goes through both houses of parliament that governs, frankly, our standing orders in the Legislative Council.

As the Hon. Mr Parnell has at other times discussed with me, there are issues that we might look at in relation to our own standing orders, but that is a decision for this chamber. It is not a decision, with great respect, for the other chamber to incorporate into legislation to change our standing orders. They can change their standing orders and we can change our standing orders; however, the joint standing committees are constituted under statute, the Parliamentary Committees Act, and therefore they are treated differently. Our select committees are our creatures, or your creatures, and we should govern how they operate. I frankly do not see it as the role of this statute to tell us what we should do in relation to our standing orders.

The Hon. C. BONAROS: Can I just note for the record that I am not disagreeing with the Treasurer. I am noting for the record that that is not the advice that we have received up until just now. Up until this point, I certainly walked into this debate today thinking that select committees were covered because that issue was canvassed on Monday. That is the advice we received from the Attorney's office. I am not disagreeing with the advice that you have received. I am simply pointing out that that is inconsistent with the advice that we have received as of last night.

If there are members serving on select committees who wish to continue to do so but find themselves in the situation where they cannot be physically present in parliament, then they will need to do what was suggested on Monday in the first instance, and that is move a motion to have standing orders or the terms of reference for their committees amended so that they are able to do that. I am simply pointing out that that is inconsistent with the advice that we have received on specific questions related specifically to select committees as well as standing committees.

Clause passed.

Clauses 16 to 18 passed.

New clause 18A.

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

Amendment No 2 [Parnell–1]—

Page 18, after line 31—Insert:

18A—Disallowance of regulations made under Act

(1) Despite section 10(3) of the Subordinate Legislation Act 1978, all regulations made under this Act must be laid before each House of Parliament on the next sitting day of that House after the regulations are made.

(2) Except as is provided under subsection (1), nothing in this section limits the operation of the Subordinate Legislation Act 1978.

(3) Where regulations made under this Act are disallowed, the Governor must not, except in accordance with a resolution of the House that disallowed the regulations, remake those regulations, or make regulations that are of the same effect, within 6 months after the day on which the regulations are disallowed.

I will at this point identify that there was an additional amendment to the amendment, which has been filed. I will not be moving that, having ascertained the views of other members of the chamber. To save time, we will stick just with amendment No. 2 [Parnell-1]. This simple amendment is premised on the fact that most of the heavy lifting in relation to the COVID response under this bill will be by regulation. As we have said before, the parliament will in all likelihood not be sitting as often as usual.

As part of the quid pro quo in terms of this parliament putting a lot of trust in the government to do the right thing in terms of regulations and other decisions, this amendment simply says that the time period for the tabling of regulations, which is usually six sitting days, is shortened to one sitting day so that we will get the regulations tabled very soon after they are made. Secondly, it says that, where the parliament disallows any of these emergency regulations, they cannot be reinstated in the same or similar form without the permission of the disallowing house within six months.

I would just point out that that latter provision is identical to multiple Liberal Party bills over multiple years, many from the Hon. Robert Lawson—I remember them fondly—and the Hon. Stephen Wade most recently for the Liberal Party. The Labor Party, as well, have introduced exactly that same measure when in opposition, and I fully expect that I might have a bill in future, when things are back to normal, along those same lines. For now, as an emergency measure, once disallowed these regulations cannot be reinstated.

The amendment that I am no longer moving was to extend both these provisions to all regulations, not just regulations made under this act. That was a bridge too far for the major parties, so I will not be proceeding with that.

The Hon. R.I. LUCAS: Again, a magnificent amendment from the Hon. Mr Parnell, and the government will be supporting it.

The Hon. K.J. MAHER: For the record, the opposition will be supporting the amendment as moved.

The Hon. C. BONAROS: For the record, SA-Best will be supporting the amendment.

New clause inserted.

Clause 19.

The CHAIR: Clause 19; there is amendment in the name of the Hon. K.J. Maher.

The Hon. K.J. MAHER: Like a previous amendment, perhaps if we can get the government's views on this clause, particularly their views on the effect this amendment would have on the clause, to enable the opposition to decide whether the amendment is moved or not. Last time it was very instructive to hear examples that the government has that give rise to the need for this amendment, how they see it being used and any potential application that they already have in mind.

The Hon. R.I. LUCAS: The government's preference would be to support the bill as it is but we, to use the phrase the honourable member used earlier, will not die in a ditch if the majority chooses to amend it. The government's advice is that we could define 'desirable' as 'necessary' and they are interchangeable almost. Yes, they are different, but from the government's viewpoint we could say certainly something that was desirable was also necessary. We would prefer to leave it as it is but, if this is of some importance to the majority in the chamber, we are prepared to support the amendment if the Hon. Mr Maher wants to move it. I cannot really give a specific example of something that in abstract we might describe as desirable as opposed to necessary. Sorry, am I on the wrong one?

The Hon. K.J. MAHER: Amendment No. 6 [Maher-1] for 19(2). If you are not dying in a ditch over this one that is good.

The Hon. R.I. LUCAS: Hansard can retract all of that. That is the next amendment. They had not given me this amendment. I jumped from amendment No. 5 to amendment No. 7. This is amendment No. 6. This is a magnificent amendment. We are going to support it, so I am advised. This is clause 19, page 18. I am just double-checking that I am reading the right advice.

The effect of this amendment is to remove a level of protection for front-line workers such as police officers and others who are carrying out the directions of the State Coordinator to undertake their roles to the best of their ability without fear that actions taken in challenging circumstances may later become the subject of disciplinary action. While subclause (2) is desirable, its removal will not undermine the more fundamentally important protective role played by subclause (1). On that basis, the government does not oppose the amendment.

The Hon. K.J. MAHER: Given that, I move:

Amendment No 6 [Maher–1]—

Page 18, lines 22 to 26 [clause 19(2)]—Delete subclause (2)

We think the rest of the clause probably covers the field. Particularly with professional standards and codes of practice when it relates to things that are very important, such as the medical or legal profession, we were wondering what the rationale was behind the possibility of those not applying.

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

The Hon. C. BONAROS: I will be supporting the amendment.

Amendment carried; clause as amended passed.

Clause 20 passed.

Schedule 1.

The Hon. R.I. LUCAS: Given that there is a vague reference to 'supported residential facility' here, I place on the record an earlier debate that we had about a question the Hon. Mr Maher raised. I can place on the record the advice I have received regarding the policy rationale for different approaches to increases in rents as between residential tenancies on the one hand and commercial tenancies on the other, and further advice I have received in relation to supported residential facilities.

The advice I have received is that residential leases are overwhelmingly 12 months only. It is already not possible (section 55 of the Residential Tenancies Act) to increase rent during the first 12-month lease, and in any subsequent lease it can only be increased once every 12 months thereafter. Further, as a class, residential tenants are seen as more vulnerable generally and a greater significance may attach to someone's home than a place of business.

In relation to commercial leases, they are usually longer, say five years or even five by five-year successive terms, up to 25 years. Rent increases are a regular feature built into the terms of commercial leases because of their length. If an already agreed to rental increase is avoided during the COVID-19 six-month period, it complicates matters for future years of the lease, where future rent increases are based on the previous year's figure.

As it relates to supported residential facilities, why is the prohibition on increases in fees and charges not linked to financial hardship? Under section 10(1)(b), a proprietor cannot increase fees and charges payable in relation to a resident contract. This is a slightly different scenario from residential tenancies and commercial leases, where it is only rent that is an issue. Accommodation costs are generally part of a broader contract involving personal care services and other matters, as well as being tied to usually commonwealth funding.

Given this and the vulnerable nature of people in supported residential facilities, it was felt that a blanket ban on increases was the best approach, and residents in supported residential facilities are unlikely to have loss of income or employment, unlike commercial or residential tenants. It should be noted that paragraph (d) is also relevant, in that it provides that a proprietor must not give a notice to a resident under section 39 of the act that purports to be a notice of a proposed termination on grounds of a failure to pay fees or charges if the resident is suffering financial hardship as a result of the COVID-19 pandemic.

I place on the record that that is the reason the government's advice is for the policy differences between residential, commercial and supported residential facilities.

The Hon. K.J. MAHER: I know this was one of the questions that was taken on notice during the briefing that occurred for the opposition on Monday night, and I do not think it has been clarified. How did the provisions in schedule 1 come about? Who initiated the request for these?

The Hon. R.I. LUCAS: I am advised that it was the Public Advocate.

The Hon. K.J. MAHER: I thank the Treasurer for that. Is the Treasurer able to outline the scenarios it is envisaged the provisions in schedule 1 would cover, the sorts of examples that this is needed for?

The Hon. R.I. LUCAS: I am learning a lot as I handle this bill—a little bit, anyway. I am advised that certain people do not have the mental capacity to understand the importance of social distancing principles; for example, someone who simply every time they see somebody wants to hug them and does not understand that they are not allowed to under social distancing principles. There will be the authority for the legal guardian or indeed, further on in this, various authorised officers to take actions to prevent that from occurring. That is the simplest example I have just been given as to the need for this particular section.

The Hon. K.J. MAHER: I thank the Treasurer for the answer to that question. Is it envisaged that there will be any public reporting on how these powers are used, particularly as it escalates up the line to authorised officers?

The Hon. R.I. LUCAS: I am advised that after 28 days there has to be an application to SACAT for a review, and therefore there would be some sort of public exposure at that particular level, but prior to that, to answer the honourable member's question, there is no public reporting in relation to it.

The Hon. K.J. MAHER: They were a couple of general questions. Specific questions in relation to the authorising officer: can I check whether I am reading correctly that the authorising officer, who has reasonably extraordinary powers over the way someone else conducts their life, is subject to the direction of the minister?

The Hon. R.I. LUCAS: I think 5(3) says the authorising officer is subject to the direction and control of the minister.

The Hon. K.J. MAHER: Is that the Attorney-General in this case?

The Hon. R.I. LUCAS: I am advised yes.

The Hon. K.J. MAHER: I am wondering what is the rationale behind that drafting. Many extraordinary powers are given in this bill, particularly in the schedule 2 that we will come to in relation to the State Coordinator, who is the police commissioner. What was the rationale when the drafting was considered here that an authorising officer be subject to the direction of a politician, that is, the minister in this case, the Attorney-General, rather than subject to the direction of the State Coordinator? Are there other places where people exercising powers under this act are subject to the direction of a relevant minister, or is this the only place this appears?

The Hon. R.I. LUCAS: My advice is that in this particular bill this is the only example my advisers can find where a minister has the power, where the authorising officer is subject to the direction and control of the minister. The member's question was whether there is another example in this bill where another minister or this minister has similar power. The advice I have received thus far is that they do not believe so; they have no other examples.

As to why it is the Attorney-General as opposed to the State Coordinator, I do not have an answer to that. The State Coordinator has a million things he is currently having to do; whether that was an issue in the decision-making in this area or not I am not sure. It is not an issue I can help the leader with with any greater clarity, I am afraid.

The Hon. K.J. MAHER: I thank the Treasurer for his answer and his honesty, that the government does not know why they have done this in this particular instance.

The Hon. R.I. LUCAS: Sorry; when you say the government, I do not know but someone else in the government might.

The Hon. K.J. MAHER: The representative of the government here tonight does not know why they have done this in this particular instance, or none of the advisers are certain why it has happened this way. Would the Treasurer undertake to take on notice and bring back a reply if this is, as the Treasurer is advised, the only place anywhere in the bill we are considering where it appears it is drafted in such a way as to give the minister the power of direction? Can the Treasurer take on notice why it was decided to draft it in that way? If the appropriate drafters who made the decision are not here tonight or cannot answer it, could he take that on notice?

The Hon. R.I. LUCAS: I am happy to take that on notice. I have received some advice from someone outside the chamber that in other pieces of legislation the minister for corrections evidently has the power to direct the chief executive of Corrections in relation to, I think it reads, 'letting out sex offenders on home detention'. However, I understand the member's question is in relation to this bill, and this would appear to be the only example. I am happy to take the question on notice and seek clarification or advice, and on behalf of the government undertake to write a nice letter to the member with whatever the answers are.

The Hon. K.J. MAHER: I appreciate that. Following on very briefly from that, is it the case then that the minister could, in effect, order the detention of someone via their ability to direct the authorised officer?

The Hon. R.I. LUCAS: I think the answer is technically yes but, knowing the Attorney-General, I would be stunned if the Attorney-General would avail herself of the theoretical powers under this particular provision. The legal advice is that technically yes, the way it is drafted the authorising officer is subject to the direction and control of the minister but, as I said, on behalf of the—hold fire, there might be more. The advice I have provided stands. As I said, I will take it on notice and I will correspond on behalf of the government with the member.

The Hon. K.J. MAHER: I wonder if the Treasurer is able to answer: is there any other place in legislation in South Australia where a minister can, in effect, order the detention of someone, whether directly or via the direction of another officer?

The Hon. R.I. Lucas interjecting:

The Hon. K.J. MAHER: The minister can actually order the detention of somebody who is not otherwise liable for detention?

The Hon. R.I. LUCAS: It is coming thick and fast. I am told the Minister for Child Protection can also in certain circumstances. They are other pieces of statute legislation we are addressing in this particular bill. I am happy to take it on notice. I am receiving advice from outside the chamber at the moment, so it would appear that maybe in Corrections, maybe in Child Protection, that various ministers have these powers, evidently. Let's clarify it in the cool light of day. I am happy to correspond on behalf of the government with the member in relation to the issues that he has raised.

The Hon. C. BONAROS: I have two questions: the first is in relation to the authorised officers and the appointment of those officers. Again, this is something that was raised during the briefing. I was hoping the Treasurer could shed some light on who else may be appointed as an authorised officer. Clause 8 obviously lists police officers and authorised officers under the Emergency Management Act 2004. Clause 8(1)(c) then states, 'a person, or class of persons, authorised by the Minister for the purposes of schedule'. I think you have mentioned the Public Advocate. I am wondering which other class of persons the government envisages as being covered by that provision.

The Hon. R.I. LUCAS: I am advised that, for example, medical practitioners will be one example and potentially managers or CEOs of some of these particular facilities.

Members interjecting:

The CHAIR: Treasurer.

The Hon. R.I. LUCAS: Managers of some of these facilities, for example, might be an authorised officer. They are the two examples.

The Hon. C. BONAROS: I just want to go back to the issue of immunity from liability and the provision that relates specifically to a person who is not an authorised officer but rather a guardian or another person who can detain a protected person. There is a specific subclause that provides that another person can actually assist in detaining a person who effectively should be isolated but, for the reasons that the Treasurer has outlined, is not. Clause 10—Additional powers of guardians during COVID-19 pandemic, provides:

…a guardian of a protected person may, if the guardian reasonably believes that the protected person is unlawfully at large…

It goes on to provide some grounds. It states that they can:

(a) detain, using only such force as is reasonably necessary for the purpose, the protected person if the protected person is in a place other than the protected person's usual place of residence;

(b) take the protected person, or cause the protected person to be taken, using only such force as is reasonably necessary for the purpose, to the protected person's usual place of residence;

(c) take such other action as may be authorised by the Tribunal…

It then goes on to list a number of other matters. An immunity provision was moved in relation to the immunity for civil and criminal liability attaching to the Crown. I am just wondering whether that extends at least partly to clause 10 and/or whether consideration ought to be given to extending such immunity to those persons who do take those actions in terms of trying to use such force as is reasonably necessary to detain a person under that provision.

The Hon. R.I. LUCAS: With great respect, if we have understood the question correctly, it is covered under section 19, which says 'or to any other person acting in good faith'. So, if an authorised officer was doing what we have been talking about, they would be protected.

The Hon. C. BONAROS: Can I just clarify: can we confirm who a 'guardian of a protected person' would be, under clause 10?

The Hon. R.I. LUCAS: I think we are in schedule 1 and we are talking about authorised officers in schedule 1 at the moment. In the example we have given, someone with mental incapacity was not social distancing and someone took action. You have asked the question as to whether there is immunity in liability in those cases. My advice is that under section 19, there is immunity from liability if they have acted in good faith as an authorised officer and they have restrained somebody from going up and hugging everybody, or whatever it might happen to be, they would be so protected.

Just to repeat: in schedule 1, we have just been talking about authorised officers and then having to take certain actions, which I will not go over again. The question asked was: is the immunity from liability related to them? My advice is the answer is yes, because 19(1) says that any person acting in good faith is covered.

Schedule passed.

Schedule 2.

The Hon. T.A. FRANKS: I just want to place something on the record and then I will move to move my amendment. In response to the questions that were asked in the Monday briefing, one of the answers was in regard to schedule 2, part 1—Emergency Management Act. I quote:

Since the Emergency was declared, there have been discussions with the State Co-ordinator about the adequacy of various provisions of the Act. The State Co-ordinator is of the view that it is appropriate to clarify the powers under the Act as has been proposed in the Bill.

Section 25(5)(c) does not permit the State Co-ordinator to breach criminal laws. Rather, it clarifies that if the State Co-ordinator exercises a power or issues a direction under s25 then the exercise or power or compliance with a direction will not be unlawful. For example, if in an emergency, the State Co-ordinator directed traffic to be diverted from an accident scene by travelling the wrong way down a highway, then this would not constitute a breach of the Road Rules. Or, if the State Co-ordinator needed to seize a vehicle in the course of an emergency, then this would not constitute a theft. This does not confer a capacity on the State Co-ordinator to break the law at large. Section 25(5)(c) just ensures that powers exercised or directions given under s 25 operate according to their terms as necessary in the face of the emergency to hand.

That is a little lower but in the same area as the amendment that I will seek to move in a minute. But I will note that at clause 1 I asked several questions about why it was deemed necessary that the State Coordinator be able to exercise or discharge a power or function under this section, even if to do so would contravene another law of the state. Indeed, I note that in this case he has been given quite extraordinary powers of any law.

I asked the government at the time why they had not specified or codified or prescribed particular acts, what they had in mind, and it would seem to be too hard a task to come back with some specific examples and some specific laws that needed to be addressed. I noted in question time today that, when I asked the Minister for Health and Wellbeing, he said that my question to him with regard to the Criminal Law Consolidation Act 1935 and abortion access in this state anticipated this particular debate.

I am well aware that there are barriers to accessing abortion health care in this state and that they are under criminal laws. I certainly anticipate that under the current Emergency Management Act that situation could be addressed as it has been elsewhere. Certainly, the UK has been an example where they have suspended their laws for two years because they actually have the same laws that are similarly based on ours. But in the situation of Ireland, those women and girls are having to travel to the UK now to access those abortion healthcare services.

However, that was not mentioned in any of the responses as one of the reasons why and that would be an appropriate remedy being required in terms of suspension of the laws of our state. It has not been provided as a reason or a rationale given in response to questions about why we need to change this particular section, other than we have been told that the State Coordinator wants it and needs it and it will apply to all of the laws of the land, no matter what they are. I move:

Amendment No 1 [Franks–1]—

Page 27, after line 23 [Schedule 2, Part 1, clause 1(e)]—After inserted subsection (4) insert:

(4a) The State Co-ordinator or an authorised officer may exercise or discharge a power or function under this section even if to do so would contravene another law of the State (not being a prescribed law).

Amendment No 2 [Franks–1]—

Page 27, lines 25 to 28 [Schedule 2, Part 1, clause 1(e), inserted subsection (5)(a)]—Delete paragraph (a)

I anticipate that they are part and parcel with [Franks-1] 3 which I have not yet moved. What this amendment does is that in schedule 2 at page 27, after the inserted subsection (4), I seek to insert the following, which reads:

(4a) The State Co-ordinator or an authorised officer may exercise or discharge a power or function under this section even if to do so would contravene another law of the State (not being a prescribed law)

That is the addition that I seek to insert at this point. It would amend the current wording and that 'not being a prescribed law' would then be the subject of [Franks-1] 3. The prescribed laws that I have identified–and I will say that I have received this bill mere hours ago. It went through the other place yesterday. The answer that we got to our questions about this particular section of the bill were received after 9.30 last night.

I created a list during the dinner break, because I cannot see how the government can justify the contravention of the following laws. My further amendment, and obviously this first set will be a test for this question, would set out the prescribed laws of the Aboriginal Heritage Act 1988, the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, the Consent to Medical Treatment and Palliative Care Act 1995, the Criminal Investigation (Covert Operations) Act 2009, the Emergency Management Act 2004—I thought I would throw that one in for good measure just in case—the Equal Opportunity Act 1984, the Freedom of Information Act 1991, the Independent Commissioner Against Corruption Act 2012, the Labour Hire Licensing Act 2017, the Maralinga Tjarutja Land Rights Act 1984, the Ombudsman Act 1972, the Police Act 1998, the Police Complaints and Discipline Act 2016, the Public Interest Disclosure Act 2018, the Public Sector Act 2009, the Public Sector (Honesty and Accountability) Act 1985, the Public Sector (Data Sharing) Act 2016, the Racial Vilification Act 1996, the Royal Commissions Act 1917, the Shop Trading Hours Act 1977, the South Australian Civil and Administrative Tribunal Act 2013 and the Surveillance Devices Act 2016.

I have codified these particular ones as the prescribed list because they go in no small part to concerns I raised with regard to the avoidance, if you like, of any scrutiny under the Public Works Committee, which indeed does look at heritage and Aboriginal heritage. It goes to the concerns I raised in my second reading contribution and further at clause 1. I could see no reason for the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act and Maralinga Tjarutja Land Rights Act to be violated.

The idea that the State Coordinator could contravene the Independent Commissioner Against Corruption Act, the Police Act or the Police Complaints and Discipline Act would beggar belief. Indeed, in the Emergency Management Act it does actually talk about the Public Sector (Honesty and Accountability) Act 1995, so I thought I would throw that in. For those who are not familiar with it, the Surveillance Devices Act, of course, gives us very sound civil liberties protections, as does the Public Sector (Data Sharing) Act that codifies that.

I cannot for the life of me see why we would need to violate the Racial Vilification Act or the Royal Commissions Act, the Freedom of Information Act or the Equal Opportunity Act. There have been concerns raised by members of the defence force that they might be used as guinea pigs, which is why I have put in the Consent to Medical Treatment and Palliative Care Act. In terms of trust from this government, I have asked for a response to this particular list—it is not every single act that we have in the state, it is a list of just over 20.

To me and to my mind, I cannot see why we would empower the State Coordinator with the ability to be able to break these particular incredibly fundamental laws. It is not directing traffic the other way down a street. It is not seizing a car for the purposes of taking action in an emergency, both of which already happen, by the way, I am pretty sure, not just on cop shows but indeed in the streets of South Australia. It is not the Royal Commissions Act. How on earth can the government expect us to trust them if they cannot provide responses to each of those particular acts and why the State Coordinator—the current police commissioner—needs to be given the powers to disregard these particular acts?

The Hon. R.I. LUCAS: We traversed this issue earlier, but I repeat the position and I will expand on it in some greater detail. The government, as I would have indicated earlier, strongly opposes the position the honourable member puts and will oppose this particular amendment.

We thank the Labor opposition for their support for this important provision in the House of Assembly. As I said in the earlier debate, this is not a provision that any of us would normally contemplate supporting. It is an extraordinary power to be handing to an individual, but we are in an extraordinary situation. We are trying to save people from dying and, from the government's viewpoint, that particular priority is paramount.

All sorts of questions can be raised. In any normal set of circumstances, we in this parliament on all sides would not contemplate giving an unelected person, the State Coordinator, these sorts of extraordinary powers. All I can say to the honourable member is that there are extraordinary things that we are having to do at the moment.

In other parts of the world, health professionals are making extraordinary decisions in relation to which individual will get into the intensive care unit and will get a ventilator and will live as opposed to which person will not get that particular ventilator and live. There are extraordinary decisions that health professionals are having to make all around the world and we hope that in Australia and in South Australia, we do not have to confront that set of extreme circumstances.

I accept the honourable member's principal position that this is an extraordinary position that we are being asked to support, but the honourable member's solution, with great respect, is not one the government can support. As I said, we are grateful that the Labor opposition, which equally would not want to support this position normally, has supported this particular proposition in the House of Assembly.

The honourable member lists a series of acts and says that the State Coordinator should not have the power to in essence ignore the provisions of these particular pieces of legislation. She says the government should have gone through every piece of legislation and decided which ones we wanted to amend. As I indicated before the dinner break, we are in an emergency and therefore we are having to make very quick decisions.

To the best ability of the officers advising ministers and the government, we have selected six, ten, fifteen acts—I do not know—that we are seeking to amend in this omnibus bill because people have identified particular provisions that we had to amend in this legislation. This provision is an absolutely essential catch-all clause, which says that we, in the time available to the government, could not think of every particular provision that we may well have to cope with to save people's lives in this pandemic.

There are all sorts of pieces of legislation. The honourable member says these 20—or whatever the number—acts are ones that clearly should never be contemplated to be ignored or overridden in any way by the State Coordinator. She asks why on earth we would want to ignore the APY Lands Act, for example.

One possibility, if I can put it on the record, is that it is possible that the State Coordinator would need to make orders that might be inconsistent with the APY Lands Act in order to protect APY members. For example, the act grants access to the APY lands to certain classes or persons other than APY members. It is conceivable that the State Coordinator may form the view that APY members must be protected by reducing the number of visitors to the lands. He may prohibit persons who otherwise have rights of entry under the APY legislation. That is one example where the State Coordinator, in the interest of saving lives, may well make a decision that is contrary to the provisions of the APY act.

The honourable member raises the issue in relation to the public sector data sharing legislation. There are strict provisions, as there should be, in terms of government departments and agencies sharing information at the moment. One of the issues that may well be raised eventually is if we were trying to trace people who had been in contact with someone infected with COVID-19 and there was information available in one particular department or agency that was unavailable to the State Coordinator. We might be able to save lives by providing access to that sort of information.

It may be that a provision of the public sector data sharing legislation may well place time limits and restrictions and require memorandums, understandings and agreements between agencies to be signed and agreed to. We might not have time to do all those sorts of things that in normal circumstances we should do.

The State Coordinator may well make the argument that in the interests of saving lives we can actually trace who came into contact with whom or who these particular people were in a quicker way. I am not saying that is the case; I am just saying we are not in a position in the parliament, with great respect to the Hon. Ms Franks or indeed any other member, to say, 'For each and every one of these 20 pieces of legislation, in no particular set of possible circumstances would the State Coordinator potentially have to not abide by all the provisions of that particular piece of legislation in the interests of saving lives.'

One of the other two examples that have been raised with me—and admittedly some of these are somewhat unlikely, and my advice is the same—is that in relation to the ICAC legislation, for example, if a person was required to attend a hearing before the ICAC and then became COVID-19 positive, that person's obligation would be to comply with the State Coordinator's direction to remain isolated, not to answer the summons and risk infecting others. That would be in contravention of the ICAC legislation. If the honourable member's amendment is there, then the ICAC commissioner could require the attendance of that particular person and risk infecting other people in that particular area. We cannot think of all the examples where in an emergency we might have to take urgent decisions to save people's lives, to stop further transmission and to stop further infection.

In relation to shop trading hours, which the honourable member has raised, I am advised that the rights of shop traders to open might be subject to contrary direction by the State Coordinator. If the honourable member's amendment was permitted, then the State Coordinator's directions that are in place to close certain businesses to the public might be overridden by the shop trading act; that is, the shop trading act allows certain businesses to trade at certain times. The State Coordinator's guidelines restrict shop trading hours; in fact, they stop shop trading provisions. The honourable member wants to say that the State Coordinator cannot ignore the provisions of the shop trading legislation. That would just make unworkable some of the State Coordinator's directions, which are all in the interests of saving lives.

I understand the point the Hon. Ms Franks is making: this is anathema to all of us in relation to allowing an unelected official to be able to make these sorts of decisions. But, as a parliament and as a community, we are trying to save lives. Sadly, we are going to have to give an unelected official—in the State Coordinator—these extraordinary powers to make decisions in the interests of saving lives. I have confidence in the police commissioner, in the State Coordinator, that he is not going to use this for ulterior motives or nefarious purposes. He is going to do it in the interests of saving lives and in the interests of doing whatever we can to reduce the rate of infection in our community.

It is just impossible for the government in the short space of time that we have to go through every statute, to conceive of every set of circumstances, when we do not know what confronts us. We can only guess and say, 'We want to amend this particular act in this particular way' and list every act that we are going to do. I thank the Labor Party again for not supporting a change in this area in the House of Assembly and, with the greatest respect to the honourable member, I urge members in this chamber not to support this particular change, which would simply strike at the heart of what we need to do.

The Hon. T.A. FRANKS: I thank the Treasurer for finally putting some reasons on the table, although he did not address whether or not the Criminal Law Consolidation Act was currently a barrier, and had that been identified as something that needed to be remedied with this particular bill as the Minister for Health and Wellbeing alluded to in question time today.

The Hon. S.G. Wade: Why didn't you put that in your list?

The Hon. T.A. FRANKS: I did not deliberately put it into my list because the point of this prescribed list—

Members interjecting:

The CHAIR: Order!

The Hon. T.A. FRANKS: —was that these—

Members interjecting:

The CHAIR: I want to hear the Hon. Ms Franks.

The Hon. T.A. FRANKS: Remember that the government did not even bother to send this bill to the Law Society. The government has not sought any feedback from civil society or very far beyond those people who will implement these powers about whether or not they want these powers. The State Coordinator wants these powers, the State Coordinator apparently will get these powers. How the State Coordinator needs to suspend, or flout, or break the provisions of the Racial Vilification Act is beyond me, but that is on the government's head.

The CHAIR: The Hon. Mr Maher, would you like to confirm what you are doing?

The Hon. K.J. MAHER: I have a couple of questions in relation to the Treasurer's contribution. I think the Treasurer gave the example of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act and the possibility that the State Coordinator may need to direct people not to enter the APY lands. Was that the example given? I wonder if the Treasurer could expand on that a bit more.

I am particularly conscious under much of our land rights legislation, including the Aboriginal Land Trusts (ALT) Act, the Maralinga Tjarutja Land Rights Act and the one just mentioned, that there is concern, and I have had concern over the last couple of weeks away from the elders in remote communities about the nature and effect of what is happening and the impact it has on their communities.

Many of the ALT communities, certainly in the APY and NT—and I think it is section 477 of the commonwealth Biosecurity Act—already have declarations made in relation to the entry into those communities. Particularly, where English is a second language, it has been very difficult for many people to understand what is being ordered. Is that one of the things being contemplated by the government doing things that breach Aboriginal land rights legislation?

The Hon. R.I. LUCAS: I understand the honourable member's active engagement in this area. The Premier has advised me that he has had a number of discussions with the honourable member. These are very sensitive and important areas. I am not the expert in this area. My colleague has advised me that the commonwealth, under the biosecurity legislation, has taken some action. I am aware that the Premier has had discussions with the Leader of the Opposition in relation to some of these very sensitive issues.

I am not flagging further actions from the Coordinator; all I am trying to suggest here is if we were to list various pieces of legislation saying that they are beyond the State Coordinator in the end having to make a decision that might be contrary to some of the provisions, we are restricting unnecessarily, and dangerously in our view, the powers that the State Coordinator might need in relation to it.

I am not aware of all the details of the private discussions the Leader of the Opposition has had with the Premier, nor need I, in relation to those issues. All I am saying is it would be extraordinarily dangerous for this parliament to exclude by way of 20 pieces of legislation where, in the end, it may well be in the interests of saving lives—and I have only given two or three examples as illustrative; I am not going through all the pieces of legislation—where the State Coordinator might theoretically, hypothetically, make decisions which are contrary to the provisions of pieces of legislation.

I have acknowledged that your colleagues in the assembly did not see fit to make changes in relation to this critical part of the legislation, and the government sees this as fundamental to the legislation that we have before us and critical to the priority of saving lives in the community.

The Hon. K.J. MAHER: In relation to the opposition's support for the amendments moved by the Hon. Tammy Franks, we have a great deal of sympathy for what the Hon. Tammy Franks is trying to do and for a lot of what she has moved—the example we have just talked about in terms of Aboriginal land rights legislation. There are other ways to implement something and to control movement to those communities through federal legislation, and I wonder what the necessity is to perhaps interfere with hard-fought Aboriginal land rights.

However, whilst we have sympathy, we are not going to support the amendment as it currently stands. That does not mean that, as parliament comes back either in the next scheduled sitting week or May, depending on what this council duly decides shortly, we would not be open to revisiting what the Hon. Tammy Franks' intent is in this amendment.

The Hon. C. BONAROS: Can I just say that our position would be the same in terms of revisiting this issue with the benefit of more information before us, but I think it is important just to note a couple of things; that is, during times like this, we are asked to place all of our faith in an unelected officer, as the Treasurer has alluded to, namely, the State Coordinator. We do so during a declared state of emergency and during a declared state of disaster.

I think it is fair to say that one of the reasons that we are asked to do that during those two crises is, one, we are attempting to depoliticise the management of those crises. There is a raft of laws in the list included by the honourable member that I honestly also cannot understand for the life of me why the State Coordinator would need to breach. The Racial Vilification Act, the Equal Opportunity Act and the Public Interest Disclosure Act stand out as obvious examples. There are others in that list that are not as easy to identify, and I think the Treasurer has referred to some of those. It is difficult, I suppose, to support such an amendment without understanding the full implications of that list.

I think is fair to say that SA-Best acknowledges the Treasurer's comments that this amendment goes to the heart of the legislation in terms of saying that we are in a situation where we are placing every ounce of faith that we have in the State Coordinator and in the fact that the State Coordinator is doing absolutely what they need to do and needs to be able to do everything they need to do to save lives, and that is the priority that we have right now. But I do acknowledge and sympathise with the reasons that this amendment has been drafted and indicate, again, our willingness, if necessary and if there is more light to be shed on this issue, to revisit this issue at a later stage.

Amendments negatived.

The Hon. T.A. FRANKS: Chair, I have a further question for the Treasurer in this section. In terms of the transparency required by the State Coordinator, should he employ these powers under proposed section 25(4): 'A direction or requirement of a kind referred to in subsection (3) must be published on a website determined by the State Co-ordinator within 24 hours after it is given or made.' Why is that website not determined more formally than the State Coordinator determining where he publishes it? Will that publishing take a form that has some longevity? What is the minimum period that that information must be made available to the public?

I note that we had a royal commission into the Murray River in this state, and indeed was not going to be put on a website for very long, if at all. Could the government please outline where this information will be made available and for how long it will be made available?

The Hon. R.I. LUCAS: It will be made available on sa.gov.au, as I indicated I think in question time, the now widely publicised source, we hope, of fact and information in relation to health issues, business support issues and tenancy issues (I think we talked about that earlier in relation to assistance for tenants) and this particular issue in relation to powers of the Coordinator. I am also told the SA legislation website, if that is the right designation, and also my colleague says the www.covid19 website, which is the SA Health website, is it?

The Hon. S.G. Wade: No, it's a DPC site.

The Hon. R.I. LUCAS: It is a DPC site but the source I guess we are advertising widely at the moment is sa.gov.au as a source of all this sort of information.

The CHAIR: The Hon. Mr Maher, do you have an amendment to schedule 2, amendment No. 7 [Maher-1]?

The Hon. K.J. MAHER: I have a question first, though.

The CHAIR: Please ask your question.

The Hon. K.J. MAHER: In schedule 2, part 1, paragraph (f) is a new insertion in the Emergency Management Act of section 26B—No obligation on persons to maintain secrecy. I am wondering if the Treasurer can shed light on how this came about and at whose instigation this particular new section 26B was requested and why.

The Hon. R.I. LUCAS: I am advised that it was legal advice but supported by the State Coordinator. My colleague the Minister for Health indicates that one of the areas where this might be required is where information is available which is meant to be kept confidential under the Health Care Act in terms of tracing people, that information which is normally required to be kept confidential might be required to trace people or monitor their compliance with isolation, etc. There are secrecy requirements under healthcare legislation and other pieces of legislation but in the end they might not be able to be abided by if we are going to try to track, for example, sources of infection or where people might have been.

The Hon. K.J. MAHER: So that I understand this correctly, in that example how it would work is that under the Emergency Management Act as it stands—I think it is section 25(2)(ka) where the State Coordinator can require a person to furnish such information as is needed—I presume, and I am keen to be corrected if I am wrong, if it is that subsection that is being employed here to require such information to be furnished, under the example given a person that the State Coordinator requires to provide that sort of health information would otherwise be breaking the law by providing it, they have to hand over that information because the State Coordinator says they have to and they are protected because otherwise they may be breaching the act in doing so. Is that what we are getting at here?

The Hon. R.I. LUCAS: There is furious agreement from everyone behind us. You have nailed it. This is, in essence, protecting those particular people who may well be breaching a confidentiality requirement. They are being required to release information and this is protecting their position.

The Hon. K.J. MAHER: I think the example that was given was in relation to breaching an act. Are there other ways that do not necessarily breach an act—standards, or codes? I assume this applies to any information that is given. My next question is about the carve-out. What does an 'informant' mean, the second to last word in that section? Is that a police informant in the sense that we understand in criminal matters?

The Hon. R.I. LUCAS: The honourable member has nailed it again. It is not just legislation. For example, under various regulatory authorities, there might be requirements to keep information you have confidential. I am sure there might be codes of ethics or something with various health professionals that they might be required to abide by. I am told there are also examples where you might have confidentiality of a contract, which might have to be breached in certain circumstances, etc. In relation to the use of the word 'informant', my legal advice is that, yes, that is in the ICAC context. It is someone who is an informant. The normal interpretation of the word applies.

The Hon. K.J. MAHER: Why is the carve-out for an informant there? At whose instigation is the informant the exception to everything else, and are there any other exceptions at all except for the one that is contemplated and specifically mentioned in the act, being the informant?

The Hon. R.I. LUCAS: My advice in relation to where this has all come from is that it has come from legal advice to the Attorney-General, but in relation to the second question, I am told by parliamentary counsel that it is what we do. 'We always do that' is the advice from parliamentary counsel.

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: I beg your pardon?

The Hon. K.J. MAHER: You always carve out informants?

The Hon. R.I. LUCAS: Yes. The parliamentary counsel advice is that we always carve out informants. That is their normal practice and that has just been incorporated in parliamentary counsel's drafting of this. There is nothing more substantive than that in relation to the drafting.

The Hon. K.J. MAHER: I assume then, going on from the example that was given about a breach of the Health Care Act, if under section 25(2)(ka) of the Emergency Management Act the State Coordinator required a medical practitioner to hand over information that in the ordinary course of things would breach doctor-patient confidentiality but the State Coordinator thought it was necessary given their role, the doctor handing it over would be required to do so but would suffer no professional discipline or anything else as a result of breaching what would otherwise be very strict doctor-patient confidentiality; is that correct?

The Hon. R.I. LUCAS: That would be correct. This is intended to protect the interests of those people who otherwise are required to keep something confidential, but they have been directed by the State Coordinator, in the interest of saving lives, to reveal information that they are otherwise not meant to reveal. This would protect their position. I cannot imagine any disciplinary body or regulatory authority that would not treat favourably someone who has been forced to reveal by the State Coordinator.

The Hon. K.J. MAHER: I get that it is not up to the regulatory body or the disciplinary authority. This covers the person for doing that, does it not?

The Hon. R.I. LUCAS: Yes.

The Hon. K.J. MAHER: My next question is in a similar vein: the legal professional privilege owned by a client of a lawyer. If the lawyer was required by the State Coordinator, who is the police commissioner, to hand over information that the police commissioner wanted, would the lawyer then be required to breach his or her client's legal professional privilege and hand over that information in the same way a doctor-patient relationship is not safe because of this?

The Hon. R.I. LUCAS: I am told that the leader is in a special breed: lawyers and parliamentarians cannot be compelled. Doctors can be, but lawyers and members of parliament in relation to parliamentary privilege cannot be, so the honourable member fills two of those; the tick is doubly protected.

The Hon. K.J. MAHER: Why is that? I am interested. We are making these laws so I think we are all interested in understanding what gives rise to the protection that doctor-patient confidentiality does not get afforded but lawyer-client and politician-constituent through parliamentary privilege does. What gives rise to the protection that doctors and patients do not have, that a lawyer and client does?

The Hon. R.I. LUCAS: Speaking of behalf of parliament, the breaching of parliamentary privilege would be a bridge too far I think, and I suspect the legal advice was they were not prepared to traverse that in trying to get it through the parliament. To be fair, the sorts of areas we are talking about are more likely, I assume, to be in the areas of health professionals and others but, putting that to the side, the legal advice that clearly came in the government's bill—and I am not aware of too many examples in the past where governments have introduced legislation trying to breach parliamentary privilege or, indeed, legal professional privilege—so, yes, the government could have if it so chose, but it drew the line at that particular area.

The Hon. K.J. MAHER: Again, and I accept that is the advice but the question is: why is it so? Where does it arise? Is it another statute or is it somewhere else where the relationships that the Treasurer has outlined are protected? What gives rise to that? How do we know that is the case given that on the words of the statute, the only thing that is protected is the informant. What gives rise to the lawyer-client relationship not falling under this?

The Hon. R.I. LUCAS: In relation to parliamentary privilege—

The Hon. K.J. MAHER: I did not ask that one.

The Hon. R.I. LUCAS: What did you ask?

The Hon. K.J. MAHER: Legal professional.

The Hon. R.I. LUCAS: Okay. Let me just answer in relation to parliamentary privilege. I hope we are in furious agreement that unless you expressly provided to breach parliamentary privilege in some way, those of us who are great adherents to the importance of parliamentary privilege would see that that is protected and so that would be an issue. In relation to legal professional privilege, my advice is in the absence of express language, section 26B, it would be unlikely to abrogate legal professional or parliamentary privilege. It arises from the common law, and that should mean something to the Leader of the Opposition.

The Hon. K.J. MAHER: I am wondering if the Treasurer can explain then the basis that differs—

The Hon. R.I. LUCAS: Do you want to breach it?

The Hon. K.J. MAHER: No. I am trying to understand how that differs from the—

The Hon. R.I. LUCAS: I am not a lawyer.

The Hon. K.J. MAHER: —the doctor-patient relationship. Is that codified somewhere whereas legal professional privilege is not?

The Hon. R.I. LUCAS: I am not the lawyer but my legal advice is that I assume it is not in the common law.

The Hon. K.J. MAHER: With the two examples we have given, I accept the assurances that the Treasurer has given the chamber that neither legal professional privilege nor parliamentary privilege are in any way affected by the insertion of 26B. Are there any other relationships, apart from the informant that is mentioned in there, that are not affected by 26B or is every other type of privacy subject to this then?

The Hon. R.I. LUCAS: Again, another common law principle, so I am told—

The Hon. K.J. MAHER: Right against self-incrimination.

The Hon. R.I. LUCAS: Right against self-incrimination. That should be something very familiar to the Leader of the Opposition as a lawyer. I am not making any inference other than that. Right against self-incrimination would be another one. There might be others as well. I am not sure that it is productive to spend our time at this hour of the evening going through all of the common law examples.

Members interjecting:

The Hon. R.I. LUCAS: Okay. All of the common law examples would be a very useful legal tutorial somewhere. Whenever you are conducting it, can you not invite me.

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

Amendment No 7 [Maher–1]—

Page 30, line 12 [Schedule 2, Part 3, clause 3, inserted subsection (5), definition of prescribed public work]—Delete 'or desirable'

This is one, I think, from the Treasurer jumping the gun a bit earlier, that is not going to be opposed by the government. The words 'necessary' and 'desirable' appear. We think it is entirely appropriate if something is 'necessary' to get the benefit of the section, but where it is merely 'desirable' of the government we think that might be a bridge too far. We are happy to support the Treasurer's necessities but not his desires on this occasion.

The Hon. R.I. LUCAS: I will stop short of saying this is a magnificent amendment, but we are not going to die in a ditch and oppose it. We are not going to distinguish between 'necessary' and 'desirable', and we are happy for it to proceed.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 7 [Treasurer–1]—

Page 29, line 25 [Schedule 2, clause 3, inserted section 16AA(1)(b)(iii)]—Delete 'section 17(7)' and substitute 'subsection (4)'

I am advised by parliamentary counsel that this is just a cross-reference. In 16AA, in subclause (1)(b)(3), instead of 'section 17(7)' it should say 'subsection (4)'. With great apologies, it has arrived late in the evening, and it is just a cross-reference.

Amendment carried; schedule as amended passed.

Schedule 3 and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (22:48): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 22:49 to 23:07.

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