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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

COVID-19 Emergency Response (Further Measures) Amendment Bill

Committee Stage

In committee.

Clause 1.

The CHAIR: There are eight clauses and a schedule. The first indicated amendment is at clause 4. It was my understanding that, with leave of the council, we were going to canvas a number of specific issues at clause 1.

The Hon. R.I. LUCAS: I was seeking to discourage that, but I was acknowledging the fact that it is likely we would canvas a number of issues at clause 1. I was going to encourage members, rather than canvas it at clause 1 and then repeat the measure during the clauses, to minimise the extent of that. Of course, if at clause 1 there are particular issues that members want to raise, they can.

The only issue I raise is that I am well versed with back-up support in relation to the commercial leases issue, but when we get into areas where I have less expertise—child protection, planning and others—I will need to get the appropriate officer to come in to provide advice and answers to me.

I need to indicate to the Hon. Ms Franks that the Minister for Health was in a position this morning to respond to questions during the committee stage, but that he is on a pair this afternoon because of his duties. So I do have prepared answers that he has approved, authorised and made available to me in an endeavour to provide answers to the honourable member's questions, and we will have somebody with appropriate expertise to try to provide back-up responses to any supplementary questions the member might have.

The Hon. M.C. PARNELL: I might just kick off, if I can, with an issue that is within the minister's field of expertise and relates to commercial tenancies and something the minister said in his summing-up. He mentioned that his understanding was that there were no states and territories that were going to go along with the national cabinet mandatory code of conduct in relation to binding that mediation. I became curious as to whether that was the case. I do accept what the minister said, that it does seem to be a tautology: it is either mediation or it's binding, but how can it be binding mediation? I have gone back to the source document, and under the heading of 'Binding Mediation' this is what the national cabinet's code of conduct says:

Where landlords and tenants cannot reach agreement on leasing arrangements (as a direct result of the COVID-19 pandemic), the matter should be referred and subjected (by either party) to applicable state or territory retail/commercial leasing dispute resolution processes for binding mediation, including Small Business Commissioners/Champions/Ombudsmen where applicable.

My understanding of that is that South Australia, according to what the minister said, is actually going along with that because the applicable state or territory dispute resolution process in this state is not one of those vehicles that was suggested but is in fact the court system, such as the Magistrates Court. I am not sure that what the minister said was correct because I think in this state we do not give the Small Business Commissioner that power to make binding determinations as we do a court.

I do not want to split hairs with it, but it also struck me that perhaps part of this confusion is in relation to two similar concepts: binding mediation versus mandatory mediation. We do have in South Australia mandatory mediation. I refer to regulations that this government passed last year following an election promise that, when there was a dispute between a mining company and a landholder, the Small Business Commissioner was going to be given, what we understood at the time, the ability to try to sort that out.

What turned out to be something that the farming community was expecting to just be a voluntary process and the Small Business Commissioner would be primarily there to help them, has transpired into mandatory mediation: you must attend, you must pay $195 a day, you can be prosecuted if you do not attend, and you must pay a share of any expert reports that are commissioned. I think that is a classic example of mandatory mediation.

So if you are a farmer and you decide that you do not want a mining company coming onto your land and you exercise your right under the exempt land provisions, what would happen is you would ultimately be taken to the Small Business Commissioner by the mining company and you are forced to fork out money on a daily basis to have your dispute heard. And if it cannot be resolved, then the Small Business Commissioner does not have that say; it does have to go to court for the final resolution. It is absolutely mandatory mediation even if not binding. I just throw that into mix because I was not 100 per cent sure that what the Treasurer said was correct, but I think I might be just splitting hairs. Certainly, the point is well made that the final forum for resolving these disputes will continue to be the courts.

The Hon. R.I. LUCAS: Given the hour, I am not going to prolong the debate. I agree with the honourable member's characterisation towards the end; that is, we are familiar with mandatory mediation, that you have to go through a mediation process. The whole concept of binding mediation makes no sense to me as a non-lawyer. Mediation is mediation. You might be required to have mediation but, in the end, the mediator, the Small Business Commissioner, does not have the power to make a final decision between two conflicting parties.

The ordinary person's or a reasonable person's reading of the binding mediation section, which is in bold print—binding mediation, in the national code—is, 'binding mediation, including Small Business Commissioners/Champions/Ombudsmen'. The champions, as I understand it, in some states are the equivalent of our small business commissioners, etc. They are there to try to mediate disputes. But ultimately where we have all ended up is there is that sort of mediator equivalent, the Small Business Commissioner or the champion, but then in the end they go somewhere for a final decision.

We are going to the Magistrates Court, some of the other jurisdictions are going to the equivalent of the Magistrates Court and some are going to our equivalent of SACAT. We thought about SACAT but, in the end, they are going to be resolving all the residential disputes etc. Unlike other jurisdictions, so I am advised, their CATs have had experience in the commercial leasing area, whereas our SACAT at this stage has not had considerable experience in the commercial leasing area. They have been in the residential leasing area.

I think we are splitting hairs to a degree. There is agreement, ultimately, that the process we are adopting is the one that everyone else is, which is a mediation by somebody who is a worthy person, like a small business commissioner, and then someone has to make a final decision when that can't be resolved amicably, etc.

The Hon. E.S. BOURKE: I am just seeking some further clarification regarding the provision and the appointment of the three deputy chief public health officers. Before I do, I want to make it very clear that no-one is disputing the incredible work they have been doing, their credibility or qualifications for having these positions.

I have had the pleasure of having a closer look at the Public Health Act recently and it was brought to my attention that there was no provision within that act to allow for a deputy chief public health officer, let alone three, but there was provision to have an acting chief public health officer. I was just wondering why there is no provision in the bill before us today for that appointment? As you often say, Treasurer, I am not a lawyer and perhaps I have just overlooked this provision, but if you can advise if there is a provision, how the appointment was made and if they are ongoing appointments.

The Hon. R.I. LUCAS: Let me take that on advisement. We do not have someone from Health or in relation to the appointment process in the cavalcade of expertise that I have behind me. Before the expiration of the committee stage this afternoon we may be able to find an explanation for you. I have a vague recollection of it being outlined to me as to how the process was conducted, but I am not going to rely on that vague recollection. If I can get some more information during the committee stage, I will seek the indulgence of the chair and put the answer on the record for you.

The Hon. T.A. FRANKS: There are a couple of things I raised in my second reading contribution that I am still waiting for answers to. If we could start with the Biosecurity Act, I understand there is a prepared statement. Then I will move to the other questions that remain unanswered.

The Hon. R.I. LUCAS: I have a prepared statement that has been given to me to read, entitled 'Biosecurity determination: Davenport Community':

The Davenport Community Council on behalf of the Davenport Community agreed to become a designated community under the biosecurity determination, which commenced on 26 March 2020.

Davenport council members undertook a community survey on 4 May 2020, which indicated a strong view from those households surveyed to ease the biosecurity determination restrictions.

Given the wider relaxation of restrictions in the general community and the limited community transmissions, the community now believe that the risk to Davenport residents is low.

On 11 May 2020—

which is just earlier this week—

Davenport Community Council indicated to state government their request to be removed from the biosecurity determination.

On 13 May 2020—

which was yesterday—

the state government notified the commonwealth of Davenport Community's request to be removed from the biosecurity determination as a designated area.

The required amendment to the biosecurity determination to enable Davenport Community to be removed needs to be signed by minister Hunt. We understand this is expected next week. When signed off by minister Hunt, he will notify the state government of the amendment's date of commencement.

The Hon. T.A. FRANKS: Thank you. I cannot imagine that you will have this particular piece of information with you right now, but if, on notice, in regard to the 4 May survey of the Davenport Community, it could be indicated who authorised that survey, what questions it contained, how many community members it was both given to, in what form it was given to them and how many participated in that survey. I am also interested in what role the department played in that or whether it was purely a council survey, but I am assuming you do not have the answers to that right now.

The other questions that I asked in the second reading were in regard to the removal of children and police powers in 25A under schedule 2, from memory. My questions were: why are these powers needed? Who has been consulted? I specifically asked, having been told that the Commissioner for Children and Young People and the guardian had been consulted, if we could be provided with that in written form. I understand from the briefing on Tuesday when I raised if the ALRM had been consulted that that was to be undertaken, so could that also be provided?

The Hon. R.I. LUCAS: I can provide some limited information but, again, if there is any further information required, I might need to seek your indulgence to provide it later in the committee stage. The initial advice I have available here is that the ALRM were consulted but, in relation to the other bodies, we are not aware of any response from them. That is the adviser I have here with me at the moment. If there is anything different to that, before the expiration of the committee stage this afternoon, I will place on the record any different advice that I might get on the issue.

The Hon. T.A. FRANKS: I thank the Treasurer for that response. On Tuesday morning, in the crossbench briefing on this bill, we were advised that the Commissioner for Children and Young People and the guardian had been asked for their response to this piece of legislation. Over the lunch break, my staff contacted the guardian's office. They were unaware of such a request for a response to the bill. I understand that my staff spoke to their staff, and their computers were down to add to the complexity of this, so perhaps there is a document somewhere but so far, at our end, we have not been able to trace it down.

I do wonder why then we were told on Tuesday morning that there had been a consultation with that particular body, as well as the Commissioner for Children and Young People, and that is why I asked for those pieces of advice to be presented for the parliament and members here to consider during this debate. In terms of the ALRM, on what date were they consulted? Have they provided anything in writing and can that be provided to the council, if so?

The Hon. R.I. LUCAS: I am advised the best recollection is it was early Tuesday but, as indicated earlier, we have not received to our knowledge any response at this stage. In relation to the earlier questions, again, I will see whether the government officers are able to find some record of the date of the email and the timing of the email that was claimed to have been sent to the guardian and the various other individuals or bodies that the member has referred to. There should be some record of when the email was sent, if that is the position the government has adopted. But at this stage, as I said, we are not aware of any response yet. If the guardian's staff are saying they do not believe they have received a request for a submission, perhaps that is not surprising. We will endeavour to find whatever information we can and share it with the member.

The Hon. T.A. FRANKS: Just the final question, although I am not sure you will be able to provide it right now, with that particular issue I am happy to wait until we get to that relevant clause now, but could we have a list of the bodies that were consulted? I understand that the Law Society was consulted and, as a result, we all have some advice now from the Law Society because they were given enough time to prepare some responses, although not on the entirety of the bill, I understand. Could that be clarified, too, as to whether they received all of the various provisions we are looking at or only the commercial leases section, but also any other bodies such as the Property Council or so on? Who was consulted, so we can see who was consulted, and more importantly who was not consulted?

The Hon. R.I. LUCAS: Just to clarify, I am advised that what was sent to various bodies, I assume like the Law Society and maybe the guardian and the others, was the actual copy of the bill. It was not a consultation prior to the development of the bill. We just need to be clear. I think it would probably be clear if we were not sending something until Tuesday it is likely to have been the bill. That is what was sent to various bodies and that is why we would have got a response from the Law Society, but at this stage my advisers are not aware of a response from the other bodies or individuals to which it has been sent.

The Hon. T.A. FRANKS: I have a letter from the Law Society dated 8 May with regard to the mandatory code of conduct and the commercial leasing principles, so I take it there was something sent to them prior to the bill being prepared?

The Hon. R.I. LUCAS: Can I clarify that? There are two letters. I think there is one dated 8 May where what they were raising is, 'Hey, there are a lot of issues in relation to commercial leasing. Are you implementing the mandatory national code?' and they were referring to the COVID (1) bill where we did have some broad provisions. That was the letter of 8 May. I think there is a subsequent letter from the Law Society on 11 May, or it might be the 12th or something.

After they got the bill, they updated their advice. The first letter was basically saying, 'Hey, you need to do something and we think you should implement the national code and what you did in COVID (1) is not sufficient,' and we recognised that. Those who were following that debate know that I indicated at that particular stage that we were going to have to come back with the details of the national code because the national code was released either on the day we debated the bill or the day afterwards or something.

We had already drafted the bill, etc., and it was then that the national code was released on 7 April or something, I think it was, and so we were not in a position to either implement the national code or not at that particular stage. I indicated we were going to have to come back and do something subsequently. I think the first letter, the 8 May letter, if that is the date, was in relation to, 'What are you doing?' and, 'You should get on and do something,' and then there was a subsequent letter after they got a copy of the bill.

The Hon. T.A. FRANKS: I will just express my gratitude to the Treasurer for clarifying all of that. I appreciate it.

The Hon. C. BONAROS: Just to clarify, does the same advice apply in relation to the correspondence that we have received from the Property Council? I note that today I have in front of me three separate pieces of correspondence from the Property Council dating back to 16 April and then one dated yesterday and one dated today. Can I take it from your response that the same would apply in relation to their consultation on the bill?

The Hon. R.I. LUCAS: I think, to be fair to the Property Council, they were more actively engaged earlier than the Law Society at the national level. Their national body had been negotiating and discussing with the commonwealth government and other state and territory governments about the national code, with the Property Council trying to explain how unworkable from their viewpoint they believed the national code would be and in particular the proportionality principle. I do not know the dates. I think you said 16 April; that would have been after the national code was released.

They have been very active at the national level and also at the various state and territory levels in saying, 'Hey, we think there are problems with the national code,' and equally, in various states, saying, 'Hey, you should get on with it and do something but don't do the national code, do something different.' I am not sure of the other dates of the letters to which the honourable member is referring, but they have been active all the way through the process.

Any letters in April would have been way before we were in a position to indicate what our position was going to be. We were talking to various people, or listening at that stage, I should say, because we were getting very strongly pointed views from various organisations at the national and the state level as to what we should or should not do in relation to the national code.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The CHAIR: There are two amendments to this clause in the name of the Hon. K.J. Maher. Would you like to speak to your amendments, the Hon. Mr Maher?

The Hon. K.J. MAHER: Yes, and, Chair, I will seek your guidance. I am happy to move the amendment standing in my name, but I had a couple of questions on the clause generally, if I am capable of doing that before I speak to the substance of my amendments.

The CHAIR: Sure. Move, but you can still speak to—

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

Amendment No 1 [Maher–1]—

Page 5, after line 18 [clause 4, inserted section 7]—After subsection (2) insert:

(2a) Any rent relief ordered by a court under regulations made under this section, should, as far as practicable and in the absence of the circumstances set out in subsection (2b), be proportionate to the reduction in turnover of the business of the lessee during the COVID-19 pandemic as compared with the turnover of the business of the lessee during a period before the COVID-19 pandemic as determined by the court.

(2b) Subsection (2a) does not apply—

(a) in circumstances where the parties to a commercial lease agree otherwise; or

(b) if a court determines that exceptional circumstances exist in relation to either party to the commercial lease such that an order to that effect should not be made, in which case the court must consider any other circumstances or matters prescribed by the regulations in relation to an order for rent relief.

I indicate that if the first amendment standing in my name fails, I will not be proceeding with the second one. The second one enters a definition that is included in the proposed regulations into the act, and if the first amendment fails it has no work to do and will be unnecessary. So I indicate that at the start.

I may have missed it in the contribution the Treasurer has made on this already, but I wonder if the Treasurer could inform the chamber of when the national code was first released—I think there was a statement from the Prime Minister on 30 March—and whether the statement from the Prime Minister on 30 March was essentially the forerunner to the release of the national code?

The Hon. R.I. LUCAS: It was formally released on 7 April. The statement on 30 March I think was that as they came out of the national cabinet for the first time he foreshadowed in broad terms what he and the national cabinet had agreed on. Again, I don't want to waste time this afternoon. The board of treasurers and CFFR, which includes the federal Treasurer, had had a long series of discussions about what commercial leasing arrangements should look like. That advice went through, but ultimately the Prime Minister and the national cabinet made decisions which were different to the advice that had originally been given. They were broadly announced by way of press release on 30 March, but the actual document was released on 7 April, so that is the date that it was formally released.

The Hon. K.J. MAHER: I thank the Treasurer for his explanation. It goes in part to answering the next question. Notwithstanding that treasurers of jurisdictions may have had concerns, did, at the time—in the lead-up to 30 March and 7 April—South Australia have the concerns that have now been expressed with the national code?

The Hon. R.I. LUCAS: I am not a member of the national cabinet. I can say that I certainly did, but I was not part of the national cabinet process. Can I say that I think the national cabinet process has worked remarkably well, so I mean no criticism of the national cabinet process, but in relation to this, I just was not part of the discussion or the debate. The Prime Minister had very strong views, so we were led to believe from those who had spoken to his office and other federal representatives about this whole issue.

Ultimately, it is what it is, or it was what it was. The decision came out and each of the jurisdictions have been left with, in essence, making sense of binding mediation, as to what that means, and various other provisions. I am not going to repeat what I said prior to the lunch break. This is our best endeavours. We think the essential elements are there, but there are significant differences that we are proposing.

As I said, no other jurisdiction has implemented the whole of the code word for word. The only other jurisdiction that indicated very early that they were going to said so publicly, but in the end did not do so when they took advice and introduced their own regulations in that particular Eastern States parliament.

The Hon. K.J. MAHER: The Treasurer has made some mention of other states. Do other states have legislation before their parliaments or do they have regulations laid or passed in terms of the national code and how they intend to give effect to it?

The Hon. R.I. LUCAS: Yes, with the exception, as I understand it, of two states: Western Australia and Queensland. They are still going out to consultation, or they are still in consultation, in terms of how they are going to implement all the detail, but my understanding and advice is that all the other jurisdictions, to some extent or another, have made decisions in terms of who is going to make the final decision.

What we are proposing, which is a broad power in an act and then all the hard work, grunt work, being done by regulations, is consistent with New South Wales and is consistent with Victoria. Certainly, it is consistent with those. As I said, two other jurisdictions, Western Australia and Queensland, are still working their way through the process.

Tasmania is a bit of an amalgam of both legislative change and regulations. Their difference was they actually legislated before anybody else did in relation to leases generally, and even prior to the national cabinet decision, to a much greater extent than everybody, but they are now going back with another bill and it has passed, evidently, in the last week or so in their jurisdiction. We are consistent with New South Wales and Victoria, and to a significant degree with Tasmania, in terms of the structure that we are proposing.

The Hon. K.J. MAHER: Is the Treasurer indicating that other jurisdictions have given effect to the national code by way of legislation or regulation?

The Hon. R.I. LUCAS: It varies. As I said, none of them have implemented the national code. New South Wales uses the words 'give effect to'. I think somebody else talks about 'have regard to'. Without nominating the treasurer, one other treasurer did say to me that what they were proposing was to 'pick up the vibe' of the national code. I do not think that is going to appear in that particular treasurer's legislation or regulation.

The Western Australian and Queensland treasurers both said to me—not just me; to all the treasurers—'whilst we haven't finally decided on what it is, it is correct to say' because I put the question directly to them, 'Will you be implementing the national code word for word?' and they said no. They will be having regard to it or giving effect to it, as the rest of us are.

It varies again between what we are doing, which is mainly in the regulations, which is New South Wales, Victoria and us and, significantly, Tasmania. We do not know about Western Australia and Queensland at this stage. Certainly, on past practice with Western Australia it is likely that they would do a regulatory change. It is likely, based on what they have done, that Western Australia and Queensland will use the regulatory power, as we are, but we will have to wait and see in their case.

The Hon. K.J. MAHER: I know there has been some discussion from a number of members about binding mediation. I think there are forms of alternative dispute resolution where there is voluntary mediation and if an agreement cannot be reached voluntarily by the parties in some form of dispute resolution the mediator then switches to neutral and becomes an arbitrator and can make decisions. I do not know, but I suspect maybe that is what was being referred to.

Was there consideration given to something more than the Small Business Commissioner making recommendations, but something less than recourse to the Magistrates Court, any sort of arbitration or tribunal to make this easier than parties having to go full blown to court?

The Hon. R.I. LUCAS: The honest answer is we had a look at a whole variety of options, but there was only one other option that we considered. We did not want to create a new body, tribunal or agency, we wanted to use what existed. The only alternative we considered was SACAT, which I think I indicated in response to an earlier question; that is, instead of referring it to the Magistrates Court, we refer it to SACAT, but for the reasons I have outlined already and which I will repeat very quickly, SACAT in South Australia has not had experience in the commercial leasing area, unlike some of the other CATs, so I am advised.

Their expertise is in residential leasing. They have picked up the responsibilities of the old residential tenancies tribunal, for example. We were going to give them what might not be an insignificant number of residential tenancy leasing issues to resolve. If all of a sudden we gave SACAT all of the residential tenancy leasing issues to be resolved and the commercial ones, we thought it was overload.

Some of the other states did go down the path of the Small Business Commissioner equivalent or the Magistrates Court. We have decided that was the preferable course so that we do not overload SACAT with all of the leasing issues at the one time.

The Hon. K.J. MAHER: Which follows on nicely to the next question: is there any expectation of even roughly the number of matters that may flow from this, and what resourcing is being put into the Magistrates Court? Are additional or auxiliary magistrates being contemplated to be appointed for this purpose?

The Hon. R.I. LUCAS: We have started thinking about all of this and in the first instance the additional resourcing is for the Small Business Commissioner because he and his office are going to be the first port of call. We have had discussions with the Small Business Commissioner and he has already organised for an additional four staff from the Ombudsman's office to come in. I have offered the Small Business Commissioner some people from Treasury with financial expertise, should they wish it. He has also appointed some additional mediators; he has increased his mediation panel from nine to 13 in expectation of volume increase.

He has increased the number of mediators; we have increased the number of support staff from the Ombudsman's office; we have offered additional staff from Treasury if it is required or AGD if needed, to provide assistance. He has organised additional office space from the Office of the Industry Advocate. I think they share an office building, so he has extra office space. In the first instance we are providing additional resources there. We will have a look also in relation to the Magistrates Court and if there is a requirement to supplement resources, in discussions with the Attorney-General, we will make sure whatever extra resourcing we require is provided to the Magistrates Court as well.

The Hon. K.J. MAHER: I guess that comes to a part of the reason for the opposition amendment. We are concerned that there might be a large influx—well, there will be an increased number of cases for the Magistrates Court to hear. We think the principle of proportionality that is one of the cornerstones of the national code will help to provide some guidance. As it currently stands under the proposed regulations, if a matter finds its way to the court I think there are six or seven things that the court must have regard to and, of course, any other matters the court thinks fit.

However, we think that if there is something that was good enough for the national cabinet—that is, all the premiers and the Prime Minister think should have primacy and be the cornerstone of a national code being proportionality—that gives some guidance not just to the court, importantly to the court, but also to the Small Business Commissioner that may help with the caseload. To have something that can be understood and not something that—our amendment does not say 'must', and it does put in the clause as far as practicable to make it clear that it might not always be the case that we have to follow the cornerstone of the national code being proportionality but, as far as practical, should look at the principle of proportionality to give that guidance.

That should be more helpful than a list of six or seven things and any other thing the court thinks fit; whereas the danger as it currently stands under what has been proposed under the regulations, is that each time one of these finds their way to the Magistrates Court, both parties will have to lawyer-up and end up in an expensive process, as is any other case in the Magistrates Court that is being run. There might be possibly a trial hearing evidence whereas if there was one thing like the cornerstone of the national mandatory code that was in the legislation, it would provide a bit more certainty. It would provide a guide and would give the parties some idea of what it is that they might expect or what they can take in as a starting point.

The Hon. R.I. LUCAS: I will not repeat all of the argument I gave this morning but the government is strongly opposed to the amendment, and I think the member is aware of that. This is a significant issue for us. There are a number of other amendments that are being moved that the government is either sanguine about or prepared to openly embrace but this is a critical amendment from the government's viewpoint in relation to this.

There are a couple of points I would make, on my advice, and that is that the member says there is a range of other issues that the mediator and the court could ultimately take into account. We think they are very important because some of those issues that they have to take into account are the financial capacity of the tenant and the landlord.

So, as I outlined this morning, you may well have a situation where a rigid adherence or an encouragement to adhere to the proportionality rule may well lead to the bankruptcy of either the landlord or the tenant. What we are saying is, in relation to the mediation and then ultimately the decision, in addition to what is a fair and reasonable cop in terms of who pays what in relation to the lack of rent being able to be paid in all of this process, the mediator and the Magistrate's Court ultimately has to take into account not an issue of strict proportionality but the reasonableness of what has to be decided, but also take into account the financial capacity of both the lessee and lessor in relation to the circumstances. There are other factors they have to take into account in the consideration, but they are two important other issues that need to be taken into account.

In relation to lawyering up, I am advised that it depends on the extent of the dispute. If the disputes are less than $12,000 in value I am told parties are not entitled to legal representation, except in special circumstances in the Magistrate's Court. If it is above $12,000 in terms of what is in dispute, then clearly there may well be lawyers involved.

The only other issue to which I did not refer this morning and I should have is that clearly the government has made a significant contribution in terms of trying to help resolve these disputes. We have provided—or the taxpayers have—$50 million of suggested relief in terms of land tax to encourage the settlement of disputes. That has to be on the basis that, if the landlord is getting less rent, then there is the capacity for up to 25 per cent of the 2019-20 land tax bill to be, in essence, waived as a partial compensation for the landlord in relation to the settlement of the particular dispute.

The taxpayers of South Australia are making a not insignificant contribution to trying to settle some of these disputes as an encouragement, that the landlord cannot just pocket the money themselves. It is part of the rent relief that has to be provided to the tenant in relation to the settlement of the dispute.

The Hon. K.J. MAHER: I thank the Treasurer for his comments. I do not think we are that far away from what we are talking about in terms of how this should operate. The Labor amendment is not to be strictly enforced; it is very deliberately crafted to say 'should', and it also says 'as far as practicable', indicating that strict adherence to proportionality is not what this amendment does. The court under this section should, as far as practicable, but also, in a further attempt, if there are circumstances like the Treasurer is talking about, where a strict adherence to proportionality could send one of the parties bankrupt, it provides two more out clauses. It allows parties to agree otherwise, and many people who enter into commercial arrangements would be aware that, if they send the other party bankrupt, then it is not in their own financial interests to do so a lot of the time.

If a landlord wants a strict adherence to proportionality that would send a tenant bankrupt in the current time, many landlords would be aware that they would find it very hard to get new tenants. It is not in their financial interests to do that, and that is why it allows parties to a commercial lease agreement to agree otherwise. Secondly, if it does come to court, a court can determine that exceptional circumstances exist, and again, in the example the Treasurer gave, one of the parties facing bankruptcy may well be an exceptional circumstance.

If a party went bankrupt, then the lease would end up having no effect, so that is why we have not had a strict adherence to proportionality. It is very deliberately drafted as 'should, as far as practicable, have regard to proportionality', but also allowing parties in a commercial lease to agree otherwise, and also allowing for the court to determine those exceptional circumstances.

I might also say that this applies only in something ordered by a court—the Small Business Commissioner in the first instance. We would very much hope that as many as possible can be resolved by the Small Business Commissioner, who is not bound by these amendments, but it gives some guidance when parties are mediating before the Small Business Commissioner. They have an idea of what it is a court may take into account in terms of 'should, as far as practicable, having regard to proportionality' that may help with that clarity and certainty that might make it easier to mediate.

I want to make it clear that we think it is a good idea that the Small Business Commissioner mediates. We think it is a good idea to have the Magistrates Court involved. We just think that applying what is the cornerstone of the national cabinet mandatory code of conduct makes sense, but not strictly adhering to it. Not allowing for ways that it has to be in every circumstance strictly applied makes sense.

I have indicated to the Treasurer that if this amendment is supported in this chamber and in between the houses during the course of today or there are further compelling arguments or reasons why it should change, we are happy to have that debate and, if necessary, when it comes back here if it is not accepted by the other chamber, change our minds. We want to make sure this works. Our motivation here is to try to create some certainty.

At the risk of being on a unity ticket with the Liberal Prime Minister and the Labor South Australian opposition, as the Treasurer characterised it earlier, we think it makes sense. This is what the national cabinet agreed to as the principles that ought to be followed. We think, particularly in the certainty that it might create, it may help settle disputes at that mediation level more rapidly.

The Hon. R.I. LUCAS: I just want members to be aware that I cannot accept the characterisation that the government and opposition are not too far apart on this particular issue. On the issue of the Small Business Commissioner and the Magistrates Court, that is fine. But the government is very firmly of the view that the principle, which is inherent in this and also in the national code—and (2a) of this amendment says, 'any rent relief ordered by a court…is proportionate to the reduction in turnover.' That is, rent relief is proportionate to the reduction in turnover, so that if you have had a 50 per cent reduction in turnover there should be a 50 per cent reduction in the rent.

As I outlined at length this morning, there are any number of examples from landlords which indicate that a 50 per cent reduction in turnover, depending on the way you have a structured and financed, leads to much more than a 50 per cent reduction in the net income of the particular landlord because of their finance costs, because of a whole range of other issues. The various examples I quoted from individual landlords and the Property Council before lunch indicated that in many cases the 25 per cent reduction in turnover was leading to more than a 50 per cent reduction in net income. A 50 per cent reduction in turnover was leading to a more than 100 per cent reduction in net income.

The proportionality, which is being talked about, of rent relief and turnover is just missing the point that the net income of people, because of the way that is structured, is not related in any way to the turnover—there is a relation, but it is not a proportionate relationship to their turnover. It is just, from the government's viewpoint, wrong in principle to say the relief that we are talking about should be proportionate to that and then it is only in exceptional circumstances that you can move away from that particular principle. We are saying that is wrong in principle, so I do not accept the characterisation that the government and the opposition on that aspect of these amendments is not far apart at all.

As I said, for some of the other amendments that other members are moving we are sanguine or, indeed, openly embracing and supportive, but this particular one the government cannot accept. The government's position remains, as I said, that we believe this legislation needs to be passed this week so that we can gazette the regulations tomorrow so that, as perfect or imperfect as any set of regulations in this particular space are going to be, the Small Business Commissioner can get on with his job and then ultimately the Magistrates Court can get on with their job with a clear set of instructions from this parliament, from the government, as to how they should go about the task.

The Hon. M.C. PARNELL: As I think we have all realised from the very start, this entire exercise is about resolving a wicked dilemma. The pie is smaller. There is pain to be had and it is about how the pain is shared. It is difficult to work out what is fair. You can imagine any number of scenarios: the multibillionaire property owner whose personal wealth exceeds that of some small nations and all their tenants have shiny trousers and they are really struggling, hand to mouth. Should those tenants maybe pay no rent for a period because the landlord can afford it? It is always difficult to work out what the formula is.

I take the point of the honourable Leader of the Opposition that this only has work to do when agreement cannot be reached. That is the first point to make. The second point to make—the member did not make it, but I think we do need to—is that if you have a principle in the act, then it will actually set the parameters for negotiation. If negotiations are going off the rails, then both parties will know, 'Hang on, the starting point here is 50 per cent reduction in turnover equals 50 per cent reduction in rent unless there are other factors that come into it,' so it does affect the negotiations.

I also take what the Hon. Kyam Maher said, that in the circumstances proposed by the Treasurer, if one of the parties is about to go bankrupt as a result of the application of a fifty-fifty clause, if you like, that is an exceptional circumstance that the court would be obliged to take into account. Then we get to the practical aspect: it is a quarter past four and we do not sit for another three weeks. The Greens' position is that we are happy to come back tonight if necessary, but we think that this measure deserves to be considered a bit more. If the Liberal and Labor parties want to negotiate and finetune this over a dinner break, then let them do so.

I also acknowledge that the Property Council has written to us in the last few minutes and they have said pretty much what the Treasurer said: worst-case scenario is a 479 per cent reduction in landlords' net income, and that is if the tenants are paying no rent at all—a 100 per cent discount—but we have to overlay on that that the circumstances of the different players will be different. I think giving the court a starting point makes some sense, as long as we also give them the latitude to deviate from it where the circumstances require. The Greens will support this amendment.

The Hon. C. BONAROS: I take the points that have been made by the Leader of the Government and the opposition on this and I have to agree with what the Hon. Mark Parnell has just said about the importance of this clause. I do have a question, though. In relation to the regulations, the fact that the court can consider any other matter that it thinks fit already does not rule out its ability to take into account the proportionality principle, does it? That is a question for the Treasurer.

The Hon. M.C. Parnell: So they could do it anyway.

The Hon. C. BONAROS: They could do it anyway.

The Hon. R.I. LUCAS: What is the question?

The Hon. C. BONAROS: The regulations already provide that the court can take into consideration any other matter it thinks fit. The court could turn its attention to the code itself and look at the provisions that apply in the code about proportionality, and they are that:

Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals of up to 100% of the amount, 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.

There is nothing already preventing the courts under the government's bill from taking into account what the Leader of the Opposition calls the cornerstone of the code of conduct. Can the Treasurer confirm that that is his understanding, or the government's understanding, as well?

The Hon. R.I. LUCAS: There is another step prior to that, of course, there is the Small Business Commissioner, but the court can take into account various issues. There is a reference in the government's drafting to turnover, but under any other matter the court can look at whatever issues it wishes in trying to determine a fair outcome.

We do not think they should be, in our very strong view, directed towards giving pre-eminence or prominence to the issue of proportionality, that is that turnover and rent relief, etc. are in essence pre-eminent or have any greater significance than an issue that the court might like to take into account because, for the examples that have been given by individual landlords, the net income impacts as a result of turnover can be wildly different depending on the financial structuring of the landlord's financial circumstances.

So the answer to the question is, yes, the court can determine what it wishes. The issue here is, as the honourable member would know, are we going to point them in a particular direction to give greater significance to a particular issue or not? This proposed amendment provides:

Any rent relief ordered by a court under regulations made under this section, should, as far as practicable and in the absence of the circumstances set out in subsection (2b), be proportionate to the reduction in turnover…

So it is saying, as far as is practicable, what you should be driving towards is acknowledging that rent relief and turnover have a direct relationship and that it should be proportionate in terms of what you do. Then there is the get-out-of-gaol card which says that in exceptional circumstances you do not have to do that.

What we are saying is that, short of exceptional circumstances, there are literally hundreds of different examples where we believe both the Small Business Commissioner and the court, ultimately, should be able to listen to the arguments and make a reasonable judgement in the interests of everybody in terms of settling the dispute. The government's strong position is that the government's bill does that. We think both the national code and this support to a significant degree of the principle in the national code is wrong in principle and is not one we should support.

The Hon. C. BONAROS: That is a huge statement from the Leader of the Government. I am going to refer to the correspondence we have received from the Property Council this afternoon, which I am taking into consideration on this issue. I point out for the record their concerns about proportionality. Again, as the Leader of the Opposition has pointed out, this is the cornerstone of the national code of conduct:

Given proportionality will have a perverse impact on many landlords—including SME landlords—this is not an amendment that we could recommend supporting.

As we have advised the State Government in recent times, the proportionality argument is fundamentally flawed. A percentage fall in rent for a landlord represents a far greater percentage drop in the landlord's net profit and cash flow.

They then go on to indicate, for instance, a 25 per cent discount to rent will result in a 58 per cent reduction in the landlord's net income; 50 per cent, 117 per cent; 75 per cent, a 175 per cent reduction; 100 per cent discount, a 234 per cent reduction. That is obviously something we are quite concerned about.

To be frank, I am not convinced either way at this point in time. I do have some sympathy for what the Leader of the Opposition has proposed, given what the national code of conduct has in it. At this point, whilst I am extremely sympathetic to the arguments that the Treasurer has made, my preference would be that we come back to this issue. If that means supporting this amendment right now and returning to this clause during the course of the event, that is something we will be open to because I think it requires far more consideration than we are actually giving it right now based on the rationale from both the government and the opposition.

The Hon. R.I. LUCAS: Ultimately, that is a judgement call for the member, but the potential outcome of that is we will not have a resolution for the Small Business Commissioner and the Magistrates Court.

The Hon. C. BONAROS: Where are we going now?

The Hon. R.I. LUCAS: We will keep sitting, but the government's position is not changing. All I am saying is we cannot support the principle and, in the end, if the majority in the chamber insists on this particular issue, then there will be no resolution in relation to the commercial leasing issue, and that would be a tragedy for commercial tenants in the community.

The majority in the chamber is entitled to do whatever it wishes, but the majority needs to understand that the government's position on this particular issue is resolute. As I said, in relation to some of the other amendments, we are either sanguine and/or openly embracing some of the other amendments, so it is not as if the government is refusing all of the amendments in relation to this. I think the honourable leader indicated there was an amendment moved in the House of Assembly by the opposition, which was picked up in whole or in part and incorporated in the bill, so the government is not adopting a position that we are not prepared to accept any amendments to the bill.

But this is such an important principle in relation to this particular issue. The government is prepared to sit tonight. I do not have a problem with sitting tonight or sitting tomorrow if we have to, but that would only be useful if it was going to actually lead to a resolution of the issue. On this particular issue, as I said, unlike some of the others, we have a very, very strong view that it is just wrong in principle. It misunderstands completely what actually goes on in terms of commercial leasing. The notion that turnover and rent relief can sort of be proportionate and that in some way the impact on a landlord's net income or net profitability or cash flow is impacted in the same proportionate fashion is just not the case in the real world.

I accept the fact that these issues have only been exposed to other members in recent hours or days, but the government has had this argument from everybody for a couple of weeks. It is one of the reasons why we have been seeking to come to some sort of conclusion in relation to this issue. In the end, there is no perfect, simple solution to it all. This is the best, we believe, that can be offered to the commercial leasing community, both landlords and tenants. We think it is a reasonable compromise.

We accept the fact that people can have validly based arguments for other systems, etc. as indeed the national cabinet did, but it is not the government's view that this is the way to resolve the situation fairly and reasonably in South Australia. To that end, every other state and territory—every other state and territory, Labor and Liberal—has come to the same broad conclusion. This is not the Liberal government in South Australia standing out like a lone pebble on a beach. Every other state and territory government, Labor and Liberal, has come to the same broad conclusion, that is, the broad process we have outlined today.

The committee divided on the amendment:

Ayes 10

Noes 7

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Maher, K.J. (teller) Ngo, T.T.
Parnell, M.C. Pnevmatikos, I. Scriven, C.M.
Wortley, R.P.
NOES
Centofanti, N.J. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W.
PAIRS
Hunter, I.K. Wade, S.G. Pangallo, F.
Darley, J.A.

Amendment thus carried.

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

Amendment No 2 [Maher–1]—

Page 7, after line 2 [clause 4, inserted section 7(7)]—After the definition of relevant Act insert:

rent relief means any form of relief in respect of the liability or obligation of a lessee under a commercial lease to pay rent (including waiver or deferral of rent).

As I indicated at the start of debate on this clause and my speaking on the amendment, this amendment is subsequent on the passage of the previous amendment. It inserts the term 'rent relief', which is used in this amendment, into the act. It is exactly the same and taken from the regulations but is needed because it now refers to it in the act. So I move this amendment that gives effect to what was previously passed.

The Hon. R.I. LUCAS: The government opposes the amendment, but we accept that it is consequential, as part of the package.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. C. BONAROS: I just want to check with the Leader of the Government: I raised during my second reading contribution that there were changes to regulations that were made as a result of other pieces of legislation under the previous COVID measures bills that were moved. Is it the intention that this bill will also potentially impact other bills that do not fall within this bill and may result in regulations made being made under those other pieces of legislation?

The Hon. R.I. LUCAS: I can only give broad advice, and that is that any regulations that are issued under this bill can only be regulations authorised under the parent act. As I understand from a brief discussion with the honourable member about an earlier issue—I think the government's argument might have been that amendments were issued under other acts—all we can do with this is there is a parent act (the COVID act or whatever it is called) and this bill is going to amend that. We can issue regulations underneath this, which is authorised by this, but my advice is that we do not have any wider power to issue regulations under other acts.

The Hon. K.J. MAHER: This was, I think, the main amendment that the Treasurer was referring to as having opposition amendments in the other place being taken into account as the bill was passed. In addition to the safeguards in terms of reporting that now are incorporated in this piece of legislation, what additional safeguards is the government putting into place to ensure the safety of vulnerable people who have limited capacity to use technology or who have communication barriers, for whom remote inspections or visits may be difficult or unsuitable?

The Hon. R.I. LUCAS: I am not in a position to give any information as to what additional actions the government might be taking along the lines the member is suggesting. The minister or ministers involved may well have actions that are involved, but the legislation just does what the legislation does. I am not in a position to provide advice to the member during the committee stage on what other policy actions the government is taking.

The Hon. K.J. MAHER: I think in the other place the Attorney-General noted that one of the reasons for this measure was to reduce the frequency of staff of the Chief Psychiatrist entering and exiting hospitals. Is that an important consideration, and are there any other measures that the government is taking to reduce the incidence of people entering and exiting hospitals?

The Hon. R.I. LUCAS: In the briefing notes I have I think it is consistent with what the member has just said: the rationale for facilitating visits of the Chief Psychiatrist by audiovisual or other electronic means is that there is a potential infection control risk for services of the Chief Psychiatrist. Inspectors move from one hospital to the other. There is a concern about the health of inspectors, but the issue relates more to ensuring that inspectors do not become a vector. To move between hospitals and clinics routinely would be inconsistent with procedures put in place during the COVID emergency for clinical staff. For example, CALHN has asked staff who work across two hospitals to only work at one. I do not know whether that assists the member at all.

The Hon. K.J. MAHER: I thank the Treasurer for his response. Do I take it from that that it is the view of the government or the government's health advisers that if you do not need to, if there is not a necessity for you to be in a hospital, it is best avoided at this time as you may be a vector for this disease? Limiting non-essential and unnecessary is a desirable aim, as we are trying to do here with the staff of the Chief Psychiatrist if it is possible.

The Hon. R.I. LUCAS: I can only share the information I have which, as I have outlined, relates to the approach of the Chief Psychiatrist's work, and it also quotes the CALHN health network in terms of what they have asked staff to do. I do not know whether I can generalise it any more broadly than the advice that I have received. Not being a public health expert I am cautious about giving public health advice other than what I have been provided.

The Hon. K.J. MAHER: I thank the Treasurer for that. Is the Treasurer aware, for instance, if the Minister for Health has been entering or exiting hospitals, and what has the necessity for that been, and could he be a vector for bringing disease into hospitals if he does not have the necessity to be there?

The Hon. R.I. LUCAS: I guess the issue in relation to not only the Minister for Health but Professor Spurrier, the Chief Executive and, indeed, others, is that everyone will need to be mindful that they take whatever action is required by the Chief Public Health Officer and her offsiders in relation to undertaking the necessary work they have to do. The Minister for Health is the Minister for Health and he has to run a massive health system and he also has to help organise a once-in-a-lifetime pandemic. He clearly has to have access to various worksites. I am sure that he is mindful of the inference behind the honourable member's question, and I am sure he would not do anything that would place anyone at risk.

Clause passed.

Clause 6 passed.

Clause 7.

The Hon. K.J. MAHER: This clause is one where I think there was some difficulty in completely understanding it during briefings. I wonder if the Treasurer can explain what the intention of this clause is and what the effect will be: what areas will this clause affect?

The Hon. R.I. LUCAS: I am advised that examples of when clause 7 might apply—that is, extensions of time beyond the expiry of the act, regulations due to expire later this year—their extension could be extended beyond the operation of the act. Provisions which require the preparation and submission of annual returns; provisions which require annual general meetings; provisions which require other kinds of financial statements and appointments of statutory officers are examples of where clause 7 might be applied.

The Hon. K.J. MAHER: I think this was a matter that was agitated when the original bill went through a few weeks ago, but in terms of the appointment of statutory officers, for the sake of clarity can I confirm that this only allows, and the regulation only helps enable, the statutory officers to be reappointed. The bill itself and this regulation do not allow for the appointment of a different person as that statutory officer. Am I correct in remembering that six months is the term of appointment?

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

The Hon. K.J. MAHER: So, in effect, this regulation will give effect to allow a statutory officer appointed during the declared emergency to continue on for whatever is the balance of that six months after the end of the declared emergency; is that right?

The Hon. R.I. LUCAS: I am not sure whether this answers the honourable member's question, but if, for example, an extension happened tomorrow it would extend for up to six months, which would be beyond what we are expecting to be the end, hopefully, of the emergency we are currently enduring.

The Hon. K.J. MAHER: In relation to the issue of annual reports, other reports, audit activities, is there a limit on the extension that can be given for those? Does the same six months that applies to statutory officers apply to reports? For example, can permission be given, notwithstanding that it is legislatively required elsewhere, for reports or audits to be postponed for three years? Would there be anything to stop that, and do these regulations then have force for those three years?

The Hon. R.I. LUCAS: I am advised that under the audit requirements it can only be extended to 9 October. My advice is that the longest period the audit could be delayed is 9 October, not three years.

The Hon. K.J. MAHER: My final question is, and I appreciate the answers: where did the need for this change come from? Did a particular part of government see a problem with it, or who agitated for or requested this particular change?

The Hon. R.I. LUCAS: Of that audit?

The Hon. K.J. MAHER: Clause 7.

The Hon. R.I. LUCAS: We had a similar debate in relation to the audit and financial issues earlier, where I think there was a discussion that involved Treasury and some consultation with audit staff and others, but in relation to clause 7 I think the best understanding is that it was just part of the general discussion with Attorney-General's officers, legal officers, maybe Crown Law, maybe parliamentary counsel—lawyers one and all, I suspect—who may have had a view in relation to this, but I do not know that there was any particular driver. Probably the view was that it was an important part of the drafting.

Clause passed.

Clause 8.

The Hon. M.C. PARNELL: By way of housekeeping, and to assist the chamber, my discussions with other parties are that, of the seven amendments I have to clause 8, my understanding is that all of them are accepted by the government except No. 3. Could we double-check that? I am not going to speak to them all in great detail because I did that in my second reading, so if we can just ascertain that from the government.

The way I see it, my amendments Nos 1, 2 and 4 relate to amendments to the Development Act that go to the issue of keeping the councils involved in the section 49 process. The one that I understood the Minister for Planning does not agree with is my amendment No. 3. I was hoping to keep the threshold for engagement to $4 million, but the government's intention is to move it to $10 million, and I understood the government wanted to stick with that. My question to the government is: do I have it correct that amendments Nos 1 through to 7 are all being supported except for No. 3?

The Hon. R.I. LUCAS: Yes, that is right but we are opposing Nos 8 and 9—that is on the schedule, that is right.

The Hon. M.C. PARNELL: I thank the minister for the supplementary because I had crosses next to those as well. I am not going to go back through a lot of detail again but, as I have said, the amendments to the Development Act relate to keeping the councils in the process. It reduces the consultation period for the local council from two months down to 15 days, which equates to the public consultation period, so therefore no time is lost. It is a very sensible amendment, a very sensible government to support the amendment. I am guided by the committee. I have four amendments until we get to my colleague the Hon. Tammy Franks' amendment. I move:

Amendment No 1 [Parnell–1]—

Page 11, lines 5 and 6 [clause 8(2), inserted clause B1(a)]—Delete paragraph (a)

Amendment No 2 [Parnell–1]—

Page 11, lines 7 and 8 [clause 8(2), inserted clause B1(b)]—Delete paragraph (b) and substitute:

(b) section 49(6)—delete 'two months' and substitute '15 business days'

The Hon. K.J. MAHER: We certainly will be supporting those two amendments. We think the government is sensible to be supporting the Hon. Mark Parnell's amendments. We had a concern that a requirement to remove any consultation was going to be detrimental and not give people any opportunity whatsoever. This seems to be a sensible amendment to bring the council part of it in line with the community consultation part from two months to 15 days.

The other thing we point out is that we thought it was over-reach from the government to try to get rid of the consultation altogether. What we have seen, even in question time this week, is delays in starting projects that are part of the stimulus package and them not having anything to do with council or community consultation. We heard from the health minister that there were 11 or 12 hospital upgrades to generators and sterilisation facilities and that, despite being announced in early March, tenders were not going to be called for in all cases until June or July, so there was a three or four-month hold-up. By the health minister's own admission, these were tenders for under half a million dollars that he thought only had to be developed and go through processes within his own department.

The fact is that tenders that the health minister thought only had to be developed in the health department and not other parts of government were taking three or four months to develop. And who knows how long before the tenders come back? Some of these so-called shovel-ready projects were not going to be completed until sometime way into 2021. This really was not justified, removing the public's or the council's right to have some input in these areas, when many of these projects are seeing significant delays already, when the whole of the process to date is in the hands of the government.

The Hon. R.I. LUCAS: I will put on the record that the government supports the amendment. As I indicated earlier, the government is trying to be reasonable in terms of its attitude to amendments to the legislation. The effect of this amendment is to reinstate the time to consult with councils on Crown developments in the Development Act. The provision was drafted by the government. It will reduce the burden on the planning process to create a more seamless and streamlined process which will stimulate economic development during the COVID-19 pandemic. This amendment will require consultation with councils to occur, but together with amendment No. 2 in the honourable member's name it will reduce that period from two months to 15 business days, which is essentially three weeks. The government is therefore prepared to support the amendment.

The Hon. C. BONAROS: I indicate for the record that we will be supporting the amendments. I am glad that we have been able to come to a reasonable outcome on this issue.

Amendments carried.

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

Amendment No 3 [Parnell–1]—

Page 11, lines 9 and 10 [clause 8(2), inserted clause B1(c)]—Delete paragraph (c)

I understand it does not have government or opposition support, but I do want it on the record that I moved it.

The Hon. R.I. LUCAS: I put on the record my advice that the government clearly will oppose it. The effect of this amendment is to prevent the threshold being increased from $4 million to $10 million where SCAP must publicly advertise Crown developments and invite interested persons to make written submissions within a period of at least 15 business days.

The bill as drafted will raise the threshold for Crown development under the Development Act to $10 million during the COVID-19 pandemic. The provision as drafted will again reduce the burden on the planning process to create a more seamless and streamlined process that will stimulate economic development during the COVID-19 pandemic. The increase will also provide consistency in the Development Act and the Planning, Development and Infrastructure Act with respect to Crown development.

It is also worth noting that all development where expenditure is $4 million or more will require to be considered by the Public Works Committee and will therefore be subject to more than adequate scrutiny. The government opposes the amendment.

The Hon. K.J. MAHER: Just for clarity, if I can get the mover of the amendment to maybe explain a bit further what specifically he is concerned is going to be lost if his amendment is not carried.

The Hon. M.C. PARNELL: There is a glimmer of hope being held out. If the opposition is actually thinking of supporting this, then I will agitate it a little bit more vigorously. The issue is you have these government projects called Crown developments, but they are not just government projects; they are also private projects that are sponsored by government agencies. I used the example earlier of power stations and dredging and things like that done by private companies hanging on the skirts of the government to take advantage of their fast-track process.

The threshold below which these projects do not have to be advertised for public comment is currently $4 million, and that reflects the same threshold that we have for the Public Works Committee, for example. If that threshold is increased to $10 million, then, by definition, there are a whole lot more projects, the ones that fall between $4 million and $10 million, that will not be available for public comment. You basically will have no right to have any say on it. It will not be advertised and you probably will not even know that the application is even being considered. Unless you are one of those people who trawls through the agendas and the minutes of the State Commission Assessment Panel you just will not know that these projects are out there.

I think it does make sense to keep the threshold at $4 million. I know the government says that the Public Works Committee already provides certain scrutiny for those projects that fall between $4 million and $10 million. I am not on that committee, but my understanding is that that is a fairly opaque process, as well. It is not as if the Public Works Committee is out there on a daily basis saying to members of the public, 'This parliamentary committee is about to inquire into this government project. Do you want to have a say?' It does not do that; in fact, I have very little idea what is on the agenda of the Public Works Committee unless I ask.

I think it does make sense to keep the threshold at $4 million for the purposes of these applications and not raise it to $10 million because otherwise those projects will fall between the gaps. If that has convinced the opposition to support it, then I will be very pleased.

The Hon. K.J. MAHER: I thank the honourable member for giving more clarity. I think the way the debate is being conducted is by necessity very difficult in that amendments have been foreshadowed and some filed only today or yesterday. I just want to triple-check with the government, and I think it is worth doing that as we go through these, that this particular part will only apply during the declared emergency and once it is over it goes back down to the $4 million. I am pretty sure that is what the Treasurer said before. Can I get that confirmed?

The Hon. R.I. LUCAS: I understand the answer to that question is yes, but evidently there is already a provision in the new Planning and Development Act, so whenever the Planning and Development Act comes in there is a $10 million provision already in that.

The Hon. K.J. MAHER: I thank the Treasurer for making that further clarification at the risk of unnecessarily holding out false hope to the Hon. Mark Parnell. With the Treasurer having reminded me of that, that is the part that I think we find some comfort in: that this will be changing in the not-too-distant future. On the basis of that, on this occasion, we will not be supporting the Hon. Mark Parnell's amendment that this apply just for the duration of this emergency, knowing that under the PDIA it raises to $10 million in the not-too-distant future in any event.

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

Amendment negatived.

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

Amendment No 4 [Parnell–1]—

Page 11, lines 11 to 13 [clause 8(2), inserted clause B1(d) to (f)]—Delete paragraphs (d) to (f) (inclusive)

This is effectively consequential to [Parnell-1] 1 and [Parnell-1] 2 which have already passed.

Amendment carried.

The Hon. M.C. PARNELL: To give my colleague a few moments to discover that her amendment has been reached perhaps a little earlier than she thought, on behalf of the Hon. Tammy Franks I move:

Amendment No 1 [Franks–1]—

Page 11, lines 14 to 31 [clause 8(3)]—Delete subclause (3)

This amendment deletes the provision relating to the removal of children. I am sure my colleague can explain it much better than I can. I will resume my seat.

The CHAIR: The Hon. Ms Franks, the Hon. Mr Parnell has moved your amendment on your behalf, but I will give you the call.

The Hon. T.A. FRANKS: Thank you, Chair. Speaking to the amendment which has now been moved which is to delete this subclause, this goes to the quite extraordinary powers as it appears that have been requested by police for the removal of children under 18 to return them to various places, and I note using reasonable force. In the briefing on Tuesday, this was said to have been consulted on with the Commissioner for Children and Young People, with the guardian, and requested by the police. I asked in the second reading contribution why this was necessary. So far the answer we have is because the police want it.

I note I have just had my office on the phone to the commissioner. She was informed and first learnt of this bill on Tuesday. She was sent, after close of business on Monday, the generic email for the commissioner: 'FYI, here is the bill.' She was certainly not consulted. They have just raised a concern that this increases above and beyond the powers under this section for children under 18 the introduction of the use of force. My question to the government is: why is the use of force necessary for children if it is not necessary for adults?

The Hon. R.I. LUCAS: The advice I have is that this is an enforcement activity or response. Reasonable force may range from simply requesting a youth to accompany police, which they often will do, to someone who actively resists and is then required to be physically removed to a place of safety. Police have to assess reasonable force every day, including when dealing with young people. This is an operational principle and the legal concept is very familiar to police and all the work that they perform.

I do not know that I can offer any other explanation than that, and that is to ensure that whatever the particular required response is hopefully it is conducted on the basis of a firm request and someone complies. Ultimately, if they do not, then 'reasonable force' is not an unfamiliar phrase in discussions we have had in previous pieces of legislation and I suspect is not unfamiliar to the police in terms of what that allows them to do.

The Hon. T.A. FRANKS: I understand that it is not an unfamiliar term in regard to the police. The difference is: why are we introducing this and amending a piece of legislation when in fact just a couple of weeks ago we applied these emergency management powers to all people? Why is there a necessary change to specifically talk about children? Why has the language of 'reasonable force' been used, and why was it claimed in the other place, under questioning of the Attorney-General, that this had actually been consulted on with the Commissioner for Children and Young People and indeed the Guardian for Children and Young People when it clearly had not, according to both of those bodies?

The Hon. R.I. LUCAS: In relation to the consultation, I think we have been through this before. What happened was the bill was sent to the guardian and the commissioner and various others on Monday and/or Tuesday. I think in some cases it went on Monday and in some cases it went Tuesday. As I understand it, and as I am advised, we still have not received a response from them.

The Hon. T.A. FRANKS: They were not asked what their opinion was. They were just given an 'FYI, here is the bill,' not asked for feedback.

The Hon. R.I. LUCAS: I think we have had that discussion before. The bill was sent to them. We conceded that there had not been consultation with the guardian and the commissioner prior to the drafting of the bill. I am not sure we can provide any greater clarity to the member in relation to that particular issue.

In relation to why 'reasonable force', the advice I have in broad terms is that, in the interests of safety, if it is decided that they need to be able to move a young person who is not complying with the direction in relation to social distancing or that sort of safety issue, the police need the authority or the power to be able to move that young person to a safer place whether that is a home or residence or wherever it might be.

My advice is this is clarifying that the police do have the power. There is evidently some argument that they might have had the power anyway, but this is clarifying that they do have the power so that, in the interests of public health and safety, if there is a young person who is not observing a direction in relation to public health issues, they can be directed or, in the end, with reasonable force moved to a safer place whether it be a home or a residence or quarantine, for example.

Maybe—I am working on the fly here—they are required to be quarantined or isolated and they are refusing to comply with a direction. The police have the power to say to that young person, 'Hey, move on. You have to go back to your hotel or your residence and comply with this direction or order,' or 'You have to observe social distancing rules.' In the end, if they just say, 'I am not going to do it,' the police are able to use reasonable force to ensure that happens. I do not think that is an unreasonable provision, if a young person is defiantly thumbing their nose at a police officer, saying, 'I am not going to comply with your direction' in relation to a public health issue or social distancing or being isolated or quarantined.

The Hon. T.A. FRANKS: So in the last month, we passed legislation that applied to all persons. Now here we are amending it to apply to children. We are including now the discussion of force. What has happened in the past month to warrant this new tweak to our emergency management powers under these directions? I note that when I asked the question, 'Has SAPOL used powers to remove children to ensure compliance with the emergency directions under the existing legislation?' the answer that I got from the Attorney-General's office was, 'SAPOL are unable to provide data on this as it is not likely that they have used other authorities in this sense.'

So why has this amendment been brought before this bill with fewer than two days to take a look at it, with no consultation, just an, 'FYI, here is the bill. By the way, we have already started the debate,' to the Commissioner for Children and Young People and to the Guardian for Children and Young People, no consultation with the ALRM prior to it being raised by the crossbench, no consultation with the Youth Affairs Council of South Australia that vehemently oppose this, no rationale given for its necessity and no explicable reason why we have to pass it today? If this is something that the government can justify, they can bring it back in the next sitting week as a standalone consulted-upon bill.

The Hon. R.I. LUCAS: I am sure the member is entirely able to and will prosecute her particular view—it is just not the view the government shares. I have outlined, on behalf of the government, the reasons why and that is a view that needed to be clarified that if a young person just refuses to comply with a lawful direction in relation to social distancing or an issue of quarantine or isolation and thumbs his or her nose at a police officer, the police wanted to be able to clarify that they have the power to enforce that particular direction in the interests of public safety.

In the end, in most instances, a request should ensure that is the case but if, ultimately, a young person just says, 'I am not going to comply,' then the government's view, as reflected in the legislation, is that they should have the power to use reasonable force to ensure that that occurs. The honourable member does not like that and she is moving her amendment and is perfectly entitled to do it. The government will be opposing the honourable member's amendment.

The Hon. T.A. FRANKS: I will not labour the point too much more on this. I think it is quite extraordinary that it has been brought before us with literally hours and almost zero consultation and reflection upon the implications of this and certainly few answers given as to why it is necessary, noting that it has not been necessary according to SAPOL so far, so what the difference is between now and last week we have yet to learn.

I do thank the Treasurer for being quite transparent about the lack of consultation on this clause. My other concern is, I was just on the phone to the member for Hurtle Vale who indicated that under questioning by the opposition in the other place they were assured that this had been consulted on. So an FYI of the bill with no real request for feedback on Monday night is not consultation, in my view, and it is not respect for both the parliament or indeed the people of South Australia.

For the Commissioner for Children and Young People to immediately raise her concern that there seems to be a change in language around 'force' that applies specifically to children that does not necessarily apply elsewhere certainly should raised alarm bells. I would hope that members will support the deletion of this subclause right now and that the government is able to bring it back in a properly consulted and considered form in the next sitting week, should they so desire.

The Hon. K.J. MAHER: I thank the honourable member for her amendment, and they are points well made in terms of considering legislation with so little time to properly scrutinise and understand the nature and effect of this. I am not the lead minister for this particular area, and the opposition, like we did in the lower house, will be supporting the government on these amendments.

The Hon. C. BONAROS: I note the concerns that have been raised by the Hon. Tammy Franks and the advice that has been received from the government in relation to this provision. I note that this particular provision came at the request of SAPOL. We have been provided with the rationale for that. Whilst I have some sympathy for why it ought not to be supported, I am reminded of the fact that at the moment we have given SAPOL, and particularly the State Coordinator, exceptional powers in exceptional circumstances to make exceptional decisions on behalf of all of our community and that in some instances may extend to minors in the circumstances that they have set out.

I do not think it is as much an issue now as it was when the pandemic first broke out, but it is particularly in relation to those circumstances where they are exercising extreme caution at the moment in terms of using their powers to remove minors from certain social settings and gatherings. Given that we have given SAPOL and the State Coordinator these exceptional powers and that they have asked for some certainty in relation to the operation of their powers, we will not oppose this amendment. We will support the government.

The ACTING CHAIR (Hon. D.G.E. Hood): You are opposing the amendment, just to be clear?

The Hon. C. BONAROS: I am opposing the amendment, and I am supporting the government's position.

Ayes 2

Noes 14

Majority 12

AYES
Franks, T.A. (teller) Parnell, M.C.
NOES
Bonaros, C. Bourke, E.S. Centofanti, N.J.
Dawkins, J.S.L. Hanson, J.E. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Maher, K.J. Ngo, T.T. Pnevmatikos, I.
Ridgway, D.W. Wortley, R.P.

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

Amendment No 5 [Parnell–1]—

Page 14, lines 8 and 9 [clause 8(7), inserted clause 3A(a)]—Delete paragraph (a)

Amendment No 6 [Parnell–1]—

Page 14, lines 10 and 11 [clause 8(7), inserted clause 3A(b)]—Delete paragraph (b) and substitute:

(b) section 131(8)—delete '4 weeks' and substitute '15 business days'

Amendment No 7 [Parnell–1]—

Page 14, lines 12 and 13 [clause 8(7), inserted clause 3A(c) and (d)]—Delete paragraphs (c) and (d)

These are amendments similar to the ones that we accepted before, the only difference being that they relate to the Planning, Development and Infrastructure Act rather than the Development Act, but I am confident they have the support of the chamber so I will not speak to them.

The Hon. R.I. LUCAS: The government supports these amendments.

The CHAIR: The Hon. Leader of the Opposition would you like to confirm your support?

The Hon. K.J. MAHER: I confirm that I support these amendments.

The Hon. C. BONAROS: I confirm SA-Best supports these amendments.

Amendments carried; clause as amended passed.

Schedule 1.

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

Amendment No 8 [Parnell–1]—

Page 14, lines 15 to 19 [Schedule 1, Part 1]—Delete Part 1

I explained in my second reading speech that this was one of the non-temporary amendments being included in this bill. I explained in my second reading speech why I believe noncomplying development should still require the concurrence of the local council. I do understand that the government is not supporting this amendment, neither is the opposition, so I will not be dividing on it, but I do want to move it because I want Hansard to record that I did so.

The Hon. R.I. LUCAS: The government opposes the amendment. The effect of this amendment is to prevent removal of the concurrence process for noncomplying developments under the Development Act. Currently section 35(3) of the Development Act generally provides that when a development is noncomplying under the relevant development plan and where the relevant authority is the SCAP, development plan consent must not be granted unless the minister and, if the development is to be undertaken in the area of a council, that council concur in the granting of consent.

In any other case involving noncomplying development generally where the relevant authority is a council, then the SCAP must provide concurrence or, in certain circumstances under the regulations, a regional development assessment panel must concur in the granting of consent. The concurrence requirement is a dual assessment process that goes against common law principles that decision should be final and certain. This process does not exist under the Planning, Development and Infrastructure Act 2016 which is scheduled to come into operation later in this calendar year.

The government's changes will balance the need for efficiency in the process and ensure the appropriate level of scrutiny is in place for these types of development applications. The government opposes the amendment.

The Hon. K.J. MAHER: Just for the sake of absolute clarity I might get the Treasurer and/or the Hon. Mark Parnell, mover of the amendment, to indicate: these provisions are due to come into effect later this year under the PDIA, are they not? Is that correct?

The Hon. R.I. LUCAS: Yes.

The Hon. M.C. PARNELL: The honourable member is correct: eventually, when another act comes into operation, the requirement for concurrence is disappearing. I do not support that either. It is consistent for me I think to try to keep this wonderful regime going for a little bit longer but I do appreciate that the writing has been on the wall for some time and that come September, October, November—whenever the new act comes into operation—this provision will have died a natural death.

The Hon. K.J. MAHER: I thank the Hon. Mark Parnell for his contribution. He characterised the opposition's view correctly; we will not be supporting his amendment.

The Hon. C. BONAROS: I indicate that, for the precise reasons the Hon. Mark Parnell just outlined, we will be supporting the amendment.

Amendment negatived.

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

Amendment No 1 [Scriven–1]—

Page 14, line 29 [Schedule 1, clause 2, inserted subsection (2a)(b)]—Delete '1 January 2021' and substitute '30 September 2020'

First, I have some questions for the government in terms of who it consulted with in regard to the change it is proposing for apprentices and trainees to have their suspensions potentially extended until January next year.

The Hon. R.I. LUCAS: I am advised the Training and Skills Commission consulted with delegates exercising powers under the act, the Office of the Training Advocate and the South Australian Employment Tribunal.

The Hon. C.M. SCRIVEN: Can I confirm then that there was no consultation or discussions with any employee organisations, no unions, no-one actually representing the interests of apprentices and trainees?

The Hon. R.I. LUCAS: No; they are not listed on that list, so they were therefore not consulted.

The Hon. C.M. SCRIVEN: In moving this amendment, the effect of it would be to change the date that would be available for the suspension of the traineeships and apprenticeships to coincide with the end of the emergency declaration, so 30 September. It is the opposition's view that all of the legislation we are dealing with as COVID emergency legislation has that end date of 30 September and this should be no exception. There has been no good reason presented as to why it should be in January.

If the emergency extends, if it becomes clear that we do need to have further opportunities to suspend these contracts of training, there is nothing stopping the government coming back and moving for that change to happen, but so far we have not seen any particular reason as to why it should be January. My next question to the Treasurer would be: can he provide any information as to why that should be?

The Hon. R.I. LUCAS: I put on the record the government's reasons for opposing the amendment, which I think answers the honourable member's question. The effect of this amendment is that the powers conferred on the South Australian Employment Tribunal under this act will be inconsistent with the Training and Skills Commission COVID-19 related reasons for a suspension contained within its current guidelines for determining the approval of the suspension of the training contract.

The opposition's amendment will result in uncertainty and inconsistency for apprentices, trainees and employers, and may result in high numbers of requests for termination rather than suspension or other actions designed to maintain training contracts. The opposition's amendment will mean that apprentices, trainees and employers who mutually agree to a suspension as a result of COVID-19 related reasons, and have no need to apply to SAET, will be able to negotiate a period up to and including 1 January 2021, while those who apply to SAET to determine the matter on their behalf will only have access to a suspension period of up to and including 30 September 2020.

To date, the overwhelming majority of requests for suspension as a result of COVID-19 have not required the involvement of SAET. If a longer term suspension that takes account of the specific COVID-19 related circumstances cannot be resolved, this may result in the employer applying instead for termination, which is not a desirable outcome.

COVID-19 has had a substantial impact on the capacity of parties to a training contract to meet their obligations to provide and undertake work, training or supervision. In some cases, these conditions would likely persist beyond 30 September 2020, as the full economic impact of the pandemic is realised. The commission amended its guidelines on 24 March 2020 to allow employers, apprentices and trainees to apply to the commission to suspend their training contract for a period up to and including 1 January 2021 for a COVID-19 related reason.

The amended guidelines give employers, apprentices and trainees greater flexibility to deal with a significant downturn in work related to the pandemic. The guidelines require the parties to maintain contact about resumption of the training contract as soon as the parties can meet their obligations to provide and undertake work, training and appropriate supervision. This enables apprentices and trainees to remain connected to the apprenticeship system in South Australia and avoids the need for a training contract to be terminated where one or other of the parties cannot meet their obligations to each other for a period. It is for those reasons the government is opposing the amendment.

The Hon. C.M. SCRIVEN: Thank you for that explanation, which essentially says that the Training and Skills Commission implemented a guideline and therefore the Training and Skills Commission has asked that it be adopted in legislation because they have implemented it, which seems somewhat of a circular argument without giving a particularly tangible and good reason as to why it should be beyond the period of the emergency declaration. Could the Treasurer advise how many apprentices and trainees have been asked to agree to a suspension due to COVID-19?

The Hon. R.I. LUCAS: I am just advised that commissioner McMahon from the South Australian Employment Tribunal has actually requested this particular amendment. I am sure the honourable member or, if she is not, some of her colleagues will be familiar with commissioner McMahon.

Members interjecting:

The Hon. R.I. LUCAS: Never heard of him? No. He is certainly well known to some of your parliamentary colleagues, Mr Chairman. All this is not something that an evil conservative Liberal government has thought up just to cause mayhem amongst apprentices and trainees. It is something obviously to which the minister and the government have agreed. Commissioner McMahon, I am advised, has requested this particular change as being a sensible and reasonable request.

As was outlined in the explanation I put on the record, the potential is that in the alternative we may well see terminations of contracts of training rather than mere suspensions, none of them entirely palatable. It is the government's view, and obviously commissioner McMahon's and some other people's view, that a suspension is better than a termination.

The Hon. C.M. SCRIVEN: As far as I am aware, in the answers that came back to questions, it was not mentioned that commissioner McMahon had requested it. The question, I think from the briefing, which was what was the purpose, did not mention that, so that is a little bit curious in itself.

The Hon. R.I. Lucas: I just thought that might have been significant for you and for some of your colleagues.

The Hon. C.M. SCRIVEN: Thank you, Treasurer. The question I asked, though, prior to your giving that response was: how many apprentices and trainees have been asked to agree to a suspension due COVID-19 so far?

The Hon. R.I. LUCAS: There have been 998 requests for COVID-19 related suspensions since the guidelines were amended on 24 March. Of those, 868 have been approved. Of those, 287 requests are for a date beyond 30 September, so for various dates from October, November, through to 1 January 2021. The largest number of those—221—are for a request for a suspension until 1 January 2021.

To another question that someone must have asked at some stage on how many requests for COVID-19 suspension were not agreed by both parties and have been forwarded to SAET for resolution—

The Hon. C.M. SCRIVEN: Sorry, Treasurer, I cannot hear you. You are speaking a bit too fast.

The Hon. R.I. LUCAS: How many requests for COVID-19 suspension were not agreed by both parties and have been forwarded to SAET for resolution? None for a date of 1 January 2021 and less than 10 in total. That was the information provided by SAET on 13 May.

The Hon. C.M. SCRIVEN: The issue that we have here and one of the reasons for moving the amendment is that there are a number of provisions in place from the federal government, such as the JobKeeper allowance, which will end at the end of September. That has been reiterated several times this week by the federal government.

Potentially, by suspending for such a lengthy period of time as this would allow, we could well be faced with a situation where we have apprentices and trainees who have been suspended for a lengthy period of time and who may not be able to access assistance through the federal government. The JobKeeper, of course, is one thing that might have its implications, but the government has also provided information that it was not able to provide when this was debated on Tuesday night in the other place, alleging that apprentices and trainees will be eligible for a JobSeeker payment while they are on suspension. I would ask the government where it got that information and how confident it is that it is accurate.

The reason I ask that question is that in one of my previous roles, I actually worked for Centrelink for many years. In terms of being willing and available to work, there are quite stringent rules about being willing to look for full-time work and willing to take full-time work, part-time work, casual work or permanent work. My question is in regard to someone who has had their apprenticeship or traineeship suspended. Why does the government have confidence that they will be eligible for the JobSeeker payment?

The Hon. R.I. LUCAS: I am advised that the advice was sought from commonwealth officers and that was the information that was shared with the House of Assembly. Whoever answered the question in the other place was relying on advice that was provided to state government officers by commonwealth government officers. I can place no greater weight on it than that. We have shared information in another place evidently gathered from commonwealth government officers.

The Hon. C.M. SCRIVEN: The response from minister Pisoni in the other place was that that was nothing to do with them, so that was not the advice that was provided in the House of Assembly. My understanding from the emails is that has since been requested and we have an email in a general sense saying that, yes, we think that people will be eligible for JobSeeker.

I would perhaps place on the record my concern that that information is not necessarily what will occur for apprentices and trainees if they turn up to Centrelink and they have to say that they are looking for full-time work, part-time work or casual work and they are available and so on. The other thing is the reality of how many employers are going to want to take someone on who says to them, 'Come January, I am going to be going back to my traineeship or my apprenticeship.'

It is clear there is going to be double-digit unemployment. There have been a number of reputable forecasts saying that we are going to have double-digit unemployment before the end of the year. So it is naive at best to suggest that young people, apprentices and trainees will be able to go to an employer and say, 'Yes, I want to come and work for you, but I will be leaving again in January.'

The Hon. C. Bonaros interjecting:

The Hon. C.M. SCRIVEN: They are quite likely not to actually be eligible, therefore, for JobSeeker and would miss out on any kind of support whatsoever. The Hon. Ms Bonaros said that maybe they want two of them. That is certainly quite possible, whether that is in everyone's view of what would be appropriate is obviously going to be up to each individual concerned.

The Hon. C. Bonaros: Are you suggesting that is inappropriate?

The Hon. C.M. SCRIVEN: I will leave that for people to say. If someone says, 'Where do you think you are going to be in one year's time?' and the young person is forced to lie, that would not be an appropriate thing for them.

The Hon. C. Bonaros: I do not think that is a lie. You keep your options open.

The Hon. C.M. SCRIVEN: The reality is that there are so many ifs, buts and maybes that it is not giving certainty to the young person—they are mainly young people—who might be an apprentice or trainee. There is not a good reason to extend this well beyond the period of the emergency declaration. We do not know where we are going to be in September in terms of this.

From a health perspective, we have had very positive results in South Australia and, again, I place on the record our congratulations to our health staff, to Dr Nicola Spurrier and others who have been involved in our health response. But in terms of ensuring that young people have certainty, there is no reason to extend this to January at this stage. There is no reason why suspensions could not be until the end of September, and then if we need to come back at that time—after all, we are sitting in June, July and September. The government could then come back and say, 'We think this is required,' and we could move to it then.

But in order to allay the concerns, a number of organisations' unions have approached us and expressed serious concerns about this potentially being misused. If there is no potential for that, there is nothing to stop us coming back in any of those sitting times in June, July or September—by September, most likely, we will know where we are at—and then we can apply for this to be extended, or the government can apply for it to be extended.

At this stage, there is no benefit to placing the employees and trainees at the risk of potentially being without any economic support whatsoever by extending up to 30 September, having suspension until 30 September. That means there is not an ending of the contract of training and, therefore, it would be appropriate to keep it consistent with the other legislation that we have been doing in this regard.

The Hon. C. BONAROS: I want to place on the record some additional stats that were provided by the minister in this instance. I am not sure if the Leader of the Government referred to them. In the advice we received, which was exactly the same, it had a further paragraph stating:

It should be noted that 287 covid-19 related cases have been mediated by all parties with the training advocate.

Dates of suspension, mutually agreed so far

Til Oct 2020—45

Til Nov 2020—6

Til Dec 2020—15

Til Jan 2020—221

That is out of a total of 287 related cases. I am not sure if the Leader of the Government referred to those but I think that is important because it does reflect that the vast majority of those cases have already been mutually agreed and suspended until the period that we are actually talking about.

We have all argued for consistency with the September date quite strongly and, for my part, I have asked for the same for regulations that have been implemented outside the scope of the COVID emergency bills themselves because they have had indirect application to the COVID bills. But I do not accept the premise of the opposition's argument. I think in this instance if there is to be an exception, then this is it. This is because in this particular instance it makes perfect sense that we create consistency between the commission's guideline—and I note that the commissioner has made the request for this amendment—and the SAET outcomes.

This could lead to some perverse outcomes, depending on what dates you are due to appear before SAET, not being able to meet the September date. So the consistency that we are creating here between the guideline and the SAET dates makes much more sense than the consistency that we have argued for in terms of the September date. So if there is going to be one exception then I would say this is it.

In response to the Hon. Clare Scriven's response about seeking alternative employment, I do not think in these circumstances it is unreasonable whatsoever for anybody to be seeking to get other employment, if that is what they are seeking to do, if they go to the local wherever it is and seek some casual or part-time employment in the interim. It is not lying or being less than honest to take on work on an interim basis until you can return to your previous position. I do not think there is anything dishonest or unreasonable about that whatsoever, especially given the very exceptional circumstances that we are dealing with.

I have given great consideration to the proposal, but I think in this instance the consistency between the guidelines, the commissioner's request for this amendment and the SAET outcomes make much more sense than any inconsistency we would have with the September date that we have all argued for so strongly in all other aspects of this legislation. Obviously, for those reasons we are supporting the government's position.

The Hon. T.A. FRANKS: For the record, we will be supporting the opposition's amendment.

Amendment negatived; schedule passed.

Progress reported; committee to sit again.

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