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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-11-15 Daily Xml
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Bills

Hydrogen and Renewable Energy Bill

Committee Stage

In committee (resumed on motion).

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 8, line 35 [clause 4(1), definition of commercial purpose]—After 'include' insert:

generating hydrogen for residential use or for

This amendment would prevent hydrogen being used for residential purposes. We understand that the government intend to blend up to 20 per cent hydrogen with methane gas into residences. They claim that this is to support gas users to decarbonise; however, the Greens are concerned that this also provides a pathway to perpetuate methane gas use. For this reason, we are seeking to strike it out of the bill.

The Hon. C.M. SCRIVEN: The government opposes this amendment because it actually would not prevent the generation of hydrogen for residential purposes, according to my advice. Indeed, if accepted this amendment would mean that the proposed Hydrogen and Renewable Energy Act would not license hydrogen generation for a commercial purpose where there is residential end use and, as a result, these activities would be authorised under the Planning, Development and Infrastructure Act 2016.

Furthermore, the blending of hydrogen into domestic gas networks is covered separately by the Gas Act 1997. Hydrogen blending enables the state to transition to a lower emissions future through the decarbonisation of the existing gas network. Licensing hydrogen generation for a commercial purpose where there is residential end use under the HRE Bill ensures a fit-for-purpose regulatory framework exists to license and construct these projects that can provide the necessary ongoing monitoring, compliance and safety considerations in such projects.

The Hon. N.J. CENTOFANTI: I rise to indicate that the opposition will not be supporting the Hon. Rob Simms' amendment to this clause.

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 2 [Simms–1]—

Page 9, line 36 [clause 4(1), definition of generating hydrogen]—Delete 'processes such as the electrolysis of water or the reformation of natural gas' and substitute:

the process of electrolysis of water

This amendment excludes hydrogen derived from methane gas—that is, blue hydrogen. The government has publicly stated they support blue hydrogen or are agnostic around the question of blue hydrogen, but the Greens have argued consistently that we want to see a green hydrogen industry in our state consistent with the position that the Labor Party took to the last election as part of their green hydrogen plan. I indicate, to save members' time, that I will call a division on this and the next amendment, which also relates to fossil fuels.

The Hon. N.J. CENTOFANTI: I indicate that, again, while we appreciate Mr Simms' amendment, the opposition will not be supporting it.

The Hon. C.M. SCRIVEN: The government opposes this amendment also. According to my advice, this amendment would also not prevent blue hydrogen being generated in South Australia. The amendment would mean that the proposed Hydrogen and Renewable Energy Act would not license blue hydrogen generation, and as a result it will be authorised under the Planning, Development and Infrastructure Act 2016. As a result, there would be no dedicated regulatory framework in place to cover the safe creation and storage of blue hydrogen, which would expose the state to unacceptable risks.

As mentioned in earlier contributions, the Hydrogen and Renewable Energy Bill is agnostic to the technology used to generate hydrogen. This legislation will enable the market to determine commercially viable hydrogen projects based on all technologies available to it, including green hydrogen, from the electrolysis of water using renewable energy, and blue hydrogen, from the reformation of methane combined with carbon capture and storage.

All types of hydrogen generation will contribute to building the necessary infrastructure required in the transition to a future clean hydrogen industry. Allowing all hydrogen types encourages the industry to develop and test economically feasible technologies, which will ultimately bring down the cost of hydrogen production. It is the role of other legislation to determine how South Australia and the country more broadly will meet our decarbonisation goals. If this amendment was to be accepted it would limit the state's ability to decarbonise and would also prevent a sensible market-based transition to a green hydrogen economy.

The committee divided on the amendment:

Ayes 2

Noes 16

Majority 14

AYES

Franks, T.A. Simms, R.A. (teller)

NOES

Bonaros, C. Bourke, E.S. Centofanti, N.J.
El Dannawi, M. Girolamo, H.M. Hanson, J.E.
Henderson, L.A. Hood, B.R. Hunter, I.K.
Lee, J.S. Maher, K.J. Martin, R.B.
Ngo, T.T. Pangallo, F. Scriven, C.M. (teller)
Wortley, R.P.

Amendment thus negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 3 [Simms–1]—

Page 10, after line 2 [clause 4(1), definition of generating hydrogen]—Insert:

but does not include operations for the creation of hydrogen by a process that utilises fossil fuels

Just to assist members, I will call a division on this amendment. As I have indicated previously, the Greens are concerned about the potential for blue hydrogen to be facilitated by this bill. Blue hydrogen is derived, as we know, from fossil fuels through the reformation of methane gas. We want to make it very clear that that should not be allowable under this bill. My amendment would make that clear.

The Hon. C.M. SCRIVEN: The government opposes this amendment on similar reasons: if the amendment was accepted it would limit the state's ability to decarbonise and it would also prevent a sensible market-based transition to a green hydrogen economy.

The amendment would not prevent blue hydrogen being generated. Instead, it would mean that it would be authorised under the Planning, Development and Infrastructure Act and, as a result, there would be no dedicated regulatory framework in place to cover the safe creation and storage of blue hydrogen. That would expose the state to unacceptable risks.

The Hon. N.J. CENTOFANTI: I rise to indicate that the opposition will not be supporting the Hon. Mr Simms' amendment.

The committee divided on the amendment:

Ayes 2

Noes 16

Majority 14

AYES

Franks, T.A. Simms, R.A. (teller)

NOES

Bonaros, C. Bourke, E.S. Centofanti, N.J.
El Dannawi, M. Girolamo, H.M. Hanson, J.E.
Henderson, L.A. Hood, B.R. Hunter, I.K.
Lee, J.S. Maher, K.J. Martin, R.B.
Ngo, T.T. Pangallo, F. Scriven, C.M. (teller)
Wortley, R.P.

Amendment thus negatived.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–2]—

Page 11, after line 14 [clause 4(1), definition of owner of land]—After paragraph (f) insert:

(fa) the holder of an aquaculture lease or aquaculture licence under the Aquaculture Act 2001; or

This is a standalone amendment, but I will speak to it in relation to the other amendments I am moving as well, because effectively they all deal with the same issue, namely, to ensure that there is provision for compensation for those holders of licences or leases under our Aquaculture Act and under our Fisheries Management Act. This specific amendment deals with the Aquaculture Act. We have spoken today about the offshore wind farm proposal in Port MacDonnell and the impacts that would have on that community but also on those individuals who have access rights and authorisations in waters where these wind farms are proposed.

Whilst aquaculture is dealt with a little differently under this bill from what fisheries is, because fisheries were not dealt with, it is certainly my intention to ensure that, even though we have gone about it in two different ways, those with aquaculture authorisations and those with fisheries management authorisations, which we will get to a little bit later, firstly, have a prescribed right to compensation, subject to a number of qualifications similar to those we are already familiar with—for instance, under the marine parks legislation—in terms of being able to establish displacement and impact in terms of catch levels and economic impact.

The purpose of this is to amend the definition of 'owner of land' to ensure that it also covers the holder of an aquaculture lease or aquaculture licence under that act and ensure that they are captured by the subsequent provisions which would otherwise apply to onshore proposals. That is about it. I commend the amendment to the chamber.

The Hon. N.J. CENTOFANTI: In regard to stakeholder consultation, can the member please give the chamber—it does not need to be specific names—an indication of the stakeholders that the member has consulted with in regard to her amendment?

The Hon. C. BONAROS: I think the member would know that there are peak bodies in this jurisdiction which I would obviously consult with. The South Australian seafood association is one of those. The Port MacDonnell situation at the moment should speak volumes in terms of the general views of those who fall within both the aquaculture and fisheries management acts and industries. These are issues that they have been advocating for for a very long time, so it is a well-established view amongst those various associations across the state, which we are all familiar with, that this is something they are particularly keen on seeing incorporated into the bill.

In short, yes, I did consult with all the usual bodies in this space. I reiterate that this is a long-held view of theirs. As I said during the second reading debate, we are also dealing more generally with wind farm proposals specifically. It might not be a wind farm proposal. It might be something else, but one of the things that I did speak to in this bill during the second reading was the fact that this bill does allow for those offshore wind farm proposals.

Regardless of what the proposal is, the intention is to effectively treat those who fall under those in the same way that we would treat land pastoralists or landholders. There is no rhyme or reason as to why we should treat them any differently. They have authorisations, they have leases, they have licences, which they pay a hell of a lot of money for each and every year, and there is absolutely no doubt that they would like a prescribed protection in the act, particularly as opposed to having something left to regulation. That is the genesis, if you like, of these amendments.

The Hon. N.J. CENTOFANTI: I thank the member for that information. With that, I am certainly happy to indicate that the opposition will be supporting the honourable member's amendment.

The Hon. C.M. SCRIVEN: I am advised that ordinarily aquaculture leases will already be captured by the definitions of 'land' and 'owner of land' within the bill, so it is implicit. However, this amendment makes it explicit. That is absolutely fine and so the government will be supporting this amendment.

The Hon. R.A. SIMMS: I indicate that the Greens will not be supporting this amendment, or indeed any amendments advanced by the Hon. Connie Bonaros.

Amendment carried; clause as amended passed.

Clause 5 passed.

Clause 6.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 1 [Centofanti–1]—

Page 15, after line 7 [clause 6(4)]—Insert:

and

(d) take into account—

(i) the objects of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth; and

(ii) the objects of the Native Vegetation Act 1991.

The bill specifies a number of acts that the minister takes into account. So that the hydrogen and renewable energy projects do not diminish the natural environment, this amendment adds a specific requirement for the minister to take into account the Native Vegetation Act 1991 and the Environment Protection and Biodiversity Conservation Act 1999.

The Hon. C.M. SCRIVEN: The acts that are currently referenced in clause 6 are listed in order to ensure that they can operate in conjunction with the new Hydrogen and Renewable Energy Act. The new act does not impact on the operation of the Environment Protection and Biodiversity Conservation Act and the Native Vegetation Act. On that basis, we will not be supporting this amendment.

The Hon. R.A. SIMMS: The Greens will be supporting this amendment advanced by the opposition. It does add in some important environmental protections into the act, but I do indicate the Greens will not be supporting the other amendments advanced by the opposition.

The council divided on the amendment:

Ayes 8

Noes 9

Majority 1

AYES

Centofanti, N.J. (teller) Franks, T.A. Girolamo, H.M.
Henderson, L.A. Hood, B.R. Lee, J.S.
Pangallo, F. Simms, R.A.

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Scriven, C.M. (teller) Wortley, R.P.

PAIRS

Lensink, J.M.A. Game, S.L. Hood, D.G.E.
Martin, R.B.

Amendment thus negatived; clause passed.

Clause 7.

The Hon. N.J. CENTOFANTI: Can the minister outline to the chamber the reasons as to why the minister would explore for a renewable energy resource?

The Hon. C.M. SCRIVEN: I am advised that the reason would be so that government can explore on freehold land to better understand the resource or if required for something such as needing access to a road. The government will be initially targeting only Crown land, but it is accurate that the government can also explore on freehold land.

The Hon. N.J. CENTOFANTI: Would the government be using this clause to interfere if there was a dispute between a landowner and an energy company who are at an impasse?

The Hon. C.M. SCRIVEN: My advice is that in the case of a dispute, as mentioned by the honourable member, the formal dispute resolution process would be the appropriate one and that is where the minister can be involved in mediation, and if that is not resolved through that process could then potentially go to the ERD Court.

The Hon. N.J. CENTOFANTI: In regard to authorised persons, can the minister give an indication as to how many authorised persons there may be that this clause may give powers to?

The Hon. C.M. SCRIVEN: I am advised that the bill does not prescribe a number, simply that it can be the minister or the authorised persons.

The Hon. N.J. CENTOFANTI: Can the minister define an 'authorised person' for the chamber please?

The Hon. C.M. SCRIVEN: I refer the honourable member to the interpretation section and the definitions. 'Authorised person means a person authorised by the Minister under section 7(1) to explore renewable energy resources'. I am further advised that 'person' has the usual meaning in such legislation, so that can include an individual person or other entity or company.

The Hon. C. BONAROS: I apologise that I missed the beginning of the opposition leader's question, but just generally can the minister outline how this exploration will work in practice and will it extend to industry also undertaking investigations?

The Hon. C.M. SCRIVEN: I am advised that a person, which could include industry, can also carry out their own investigations outside of release areas if authorised by the minister.

The Hon. N.J. CENTOFANTI: Going back to the authorised person, can the minister indicate how many authorised persons are expected with this clause and whether any specific qualifications are required for those authorised persons?

The Hon. C.M. SCRIVEN: I am advised that there have not been estimates made of the numbers of authorised persons. In terms of qualifications, given that the authorised persons are appointed by the minister, it would be for each particular circumstance for that to be determined.

Clause passed.

Clause 8.

The Hon. N.J. CENTOFANTI: What is the current process for gaining a feasibility permit?

The Hon. C.M. SCRIVEN: The purpose of the renewable energy feasibility permit is to authorise construction of infrastructure for feasibility activities on areas of land that are not designated land. This means any land other than pastoral or Crown land.

Unlike a renewable energy feasibility licence, a permit will not confer an exclusive right to undertake feasibility activities. This is because it is not considered appropriate for potentially large areas of freehold land, for example, to be exclusively allocated or banked, given the comparatively small area required to set up fixed structures for collecting feasibility data. Feedback indicated that the permit structure is more akin to the early development stages of projects on freehold land which the government is seeking to preserve.

In terms of process, the proponent must negotiate land access with the landowner before a permit is issued by the minister responsible for the HRE Act. Further, a permit will allow fixed structures, such as meteorological masts, to be constructed, operated and maintained for the purpose of assessing the feasibility of generating renewable energy. A permit will also require such infrastructure to be decommissioned in a responsible manner.

Additional information is that a permit cannot be issued by the minister until the applicant has negotiated land access with the landowner.

The Hon. N.J. CENTOFANTI: Can the minister confirm that that process is the same no matter the technology—wind, solar, etc.?

The Hon. C.M. SCRIVEN: I am advised that is for all renewable energy technology for infrastructure.

The Hon. C. BONAROS: I have a question that probably relates to clauses 8 and 9, just in terms of the time frame around those permits, namely up to five years. What is the rationale for the permit periods that have been prescribed, and why did the government land on the five years?

The Hon. C.M. SCRIVEN: I am advised that the term of five years is considered to provide sufficient time for proponents to collect the feasibility data to inform their final investment decision. Again, it is for construction of renewable energy infrastructure.

The Hon. C. BONAROS: Can the minister just confirm if those terms were designed in consultation with industry when it comes to that period?

The Hon. C.M. SCRIVEN: I am advised that, yes, that is the case.

The Hon. F. PANGALLO: Just in relation to maximum penalties, how were those figures arrived at and why is there a discrepancy between (7) and (8)?

The Hon. C.M. SCRIVEN: I am advised that that outlined in subclause (7) refers to the permit holder, so the licensee, and therefore it is appropriate to be a higher penalty. They have been granted a licence, and if they contravene that that is clearly most inappropriate. The one referred to in subclause (8) can be any person who, without lawful excuse, is obstructing or hindering the holder of an energy feasibility permit in the reasonable exercise of rights.

The Hon. F. PANGALLO: Why are the figures so high?

The Hon. C.M. SCRIVEN: I am advised that they were based on the mining and petroleum act and therefore have similar penalties.

Clause passed.

Clause 9.

The Hon. C. BONAROS: Following on from my previous question, can the minister clarify whether, in addition to allowing sufficient time to conduct activities, one of the incentives also was to remove or at least decrease as far as possible the risk of land banking activities?

The Hon. C.M. SCRIVEN: That is correct. I think I may have referred to that in an earlier question, but just for a little bit of extra information, I am advised that licence and permit terms within the bill have been designed in consultation with industry to achieve a balance between current practices and requirements and to avoid land banking by developers. The terms are intended to allow sufficient time to conduct the necessary activities under the relevant licence by removing the risk of land banking.

Clause passed.

Clause 10.

The ACTING CHAIR (The Hon. R.B. Martin): There is an amendment in the name of the Hon. N.J. Centofanti.

The Hon. N.J. CENTOFANTI: If I am able to ask a question of the minister before I move my amendment, can the minister explain why there is no legislative requirement to consult with pastoral lessees or the Pastoral Board before awarding a successful tender?

The Hon. C.M. SCRIVEN: Can you just ask the question again?

The Hon. N.J. CENTOFANTI: I am happy to repeat the question. I asked whether the minister can explain why there is no legislated requirement to consult with pastoral lessees or the Pastoral Board before—sorry, not awarding a successful tender, but declaring a release area.

The Hon. C.M. SCRIVEN: I am advised there will be a number of parties that will need to be consulted with under the act that will be prescribed in the regulations. We will be opposing the amendment if it is moved by the honourable member because, by listing only the Pastoral Board and pastoral lessees in section 10 of the act, it may give the wrong implication that these two groups are the only groups to be consulted with. But I can certainly commit that a requirement to consult with the Pastoral Board will be in the regulations.

The Hon. C. BONAROS: Can the minister confirm how release areas will be identified? I appreciate that she has just said that there will be a regulatory regime around that, but what will be required before declaring a release area?

The Hon. C.M. SCRIVEN: I am advised that the identification of release areas will be informed by formal consultation requirements with co-regulators, native title holders and other landowners, including pastoral lessees and impacted communities. A pre-competitive multicriteria analysis will ensure the most appropriate areas of pastoral land and state waters for renewable energy development are identified in consultation with native title holders, pastoral lessees and other landowners.

This process will consider existing land uses as well as environmental, heritage and cultural sensitivities. Consultation will identify potential social, environmental and economic impacts, including benefits and risks, and provide an opportunity for stakeholders to share thoughts on what renewable energy development can mean for them. In terms of the consultation that will be required before declaring a release area, which I think is also a matter of interest for the honourable member, the minister is required to undertake consultation in a manner that is prescribed by regulations.

The intention is that consultation will be undertaken with landowners, including native title holders, pastoral lessees and resource tenement holders and other persons with an interest in the relevant land to ensure that their views and impacts are properly considered. This will provide an opportunity for early communication of key issues. It will also help to inform the criteria against which tenders within the release area may be assessed and the terms and conditions that will be applied to licences in that area.

The Hon. C. BONAROS: Given what the minister has just said, and if we go back to one of the first provisions in this bill in terms of the objects, there is a general theme in the bill in terms of that community benefit, environmental benefit consultation, and that will inevitably include and incorporate all those who are impacted by anything that is proposed. Is that a fair summation of what we are doing in the bill?

The Hon. C.M. SCRIVEN: I am advised that, yes, it is a fair summation of that.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 2 [Centofanti–1]—

Page 18, after line 17—Insert:

(6a) The Minister must, before declaring a release area, if any part of the proposed release area comprises pastoral land, consult with—

(a) the Pastoral Board established under the Pastoral Land Management and Conservation Act 1989; and

(b) the holder of a pastoral lease in respect of the proposed release area.

Whenever an action is undertaken by the state government under the framework of this bill relating to pastoral land, the Pastoral Board must be consulted. Additionally, the amendments make it a requirement that consultation with pastoral lessees is explicitly required if a release area or licence is to occur on their pastoral lease.

We do think that this amendment is worth putting forward to ensure it is a legislative requirement that the minister, before declaring a release area, if any part of the proposed release area comprises pastoral land, must at least consult—and it is certainly and absolutely not saying that the consultation should be limited but at the very least—with the Pastoral Board and the holder of the pastoral lease with respect to the proposed release area.

The Hon. C.M. SCRIVEN: As I indicated, the government will not be supporting this amendment. I would just like to reference what the honourable member has said with regard to it needing to be a legislated requirement. The minister in the other place has committed to consultation with the Pastoral Board and pastoral lessees being in the regulations, as have I, again, tonight in this place. Regulations, of course, are legislative requirements.

The committee divided on the amendment:

Ayes 6

Noes 11

Majority 5

AYES

Centofanti, N.J. (teller) Girolamo, H.M. Henderson, L.A.
Hood, B.R. Lee, J.S. Pangallo, F.

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Franks, T.A. Hanson, J.E. Hunter, I.K.
Maher, K.J. Ngo, T.T. Scriven, C.M. (teller)
Simms, R.A. Wortley, R.P.

PAIRS

Lensink, J.M.A. Game, S.L. Hood, D.G.E.
Martin, R.B.

Amendment thus negatived; clause passed.

Clauses 11 to 16 passed.

Clause 17.

The Hon. N.J. CENTOFANTI: Whilst referring to the minister to whom the Pastoral Land Management and Conservation Act 1989 is committed and to seek the concurrence of the minister for whom the Harbors and Navigation Act 1993 is committed, can the minister explain why she would not refer to the Pastoral Board itself?

The Hon. C.M. SCRIVEN: I am advised that the Pastoral Board would have already been consulted at the release area stage. This would chronologically come afterwards in terms of granting the renewable energy feasibility licence. That is my advice.

The Hon. N.J. CENTOFANTI: After seeking the concurrence of the minister for whom the Harbors and Navigation Act 1993 is committed, what balance does the minister for the Harbors and Navigation Act 1993 have, and what if there is a disagreement between the ministers? I might just note that at the moment they are the same person, but they may not be in the future.

The Hon. C.M. SCRIVEN: I am advised that, whilst the minister must seek the concurrence of the minister to whom the Harbors and Navigation Act is committed, in the event that that minister did not agree, the minister responsible for the Hydrogen and Renewable Energy Act would have the ability to proceed in any case. However, it is considered to be most unlikely that would occur. Seeking the concurrence means that the goal is to have agreement.

Clause passed.

Clause 18.

The Hon. N.J. CENTOFANTI: Can the minister advise under this clause how many renewables would be allowed? Will there be a threshold with the number of times that someone can renew a licence? Is there a limit to that, or can they just continue to renew a licence?

The Hon. C.M. SCRIVEN: I am advised there is no limit to the reviews, but it is all subject to the minister's approval. Therefore, if there were ongoing renewals, they would not necessarily be granted. The minister would have that prerogative.

The Hon. N.J. CENTOFANTI: Is there any concern about the potential for holding of those rights in regard to those licences without any moves to act or improve on?

The Hon. C.M. SCRIVEN: I am advised that, given that we do not want land banking, which I mentioned in an earlier answer this evening, there would have to be a demonstrated good reason as to why it should be renewed if nothing had progressed, as the honourable member outlined.

Clause passed.

Clause 19 passed.

Clause 20.

The Hon. N.J. CENTOFANTI: Given that I think the default term of a renewable energy infrastructure licence is 50 years, if it is longer or shorter how is that determined by the minister—under what situation or circumstance?

The Hon. C.M. SCRIVEN: I am advised that the purpose of that provision is to provide flexibility so that the individual circumstances of particular projects can be taken into account. Given that we do not know the exact types of projects that might be proposed, this gives the flexibility while still providing a guide that the default—as the honourable member used that term—would be 50 years, but the minister can make amendments to that, granting a shorter or longer term as may be appropriate.

The Hon. N.J. CENTOFANTI: Given that prior to this bill the terms of renewable energy infrastructure licences are 40 years, can the minister outline to the chamber why the change? Why the difference in 10 years?

The Hon. C.M. SCRIVEN: My advice is that the change was made in response to consultation with industry, but because there is that opportunity for the minister to grant a shorter or longer term that still provides additional flexibility.

The Hon. N.J. CENTOFANTI: Finally, again, what is the minister doing, or what is being done, to prevent land banking?

The Hon. C.M. SCRIVEN: I am advised that once the licence is granted a work program is put in place. If they fail to meet any of that work program, the licence can be revoked.

Clause passed.

Clause 21 passed.

Clause 22.

The Hon. N.J. CENTOFANTI: What is the minister's view of an appropriate initial term for a renewable energy research licence?

The Hon. C.M. SCRIVEN: I am advised that there is no term nominated within the bill because the nature of research is that it can be very, very different and therefore be decided on a case-by-case basis.

The Hon. N.J. CENTOFANTI: Would there be a maximum term and, if so, would that include renewals?

The Hon. C.M. SCRIVEN: I am advised that it is on a case-by-case basis and the minister can make that determination.

The Hon. N.J. CENTOFANTI: Can I ask the minister why there is not a term set out at all, and at least a maximum given? I hear the minister's comments about research and it being a case-by-case basis, but surely there has to be at least a maximum or at least a time that is required for them to then seek a renewal?

The Hon. C.M. SCRIVEN: I am advised that because this is a research licence only it does not give any rights to the owner of that licence to, for example, construct infrastructure, and therefore there is no risk, for example, of land banking, which is one of the reasons for having the limit on other types of provisions in this bill. The nature of research is you might have a relatively small research project or a vast one, and therefore it needs to be flexible to meet those requirements.

Clause passed.

Clause 23 passed.

Clause 24.

The Hon. N.J. CENTOFANTI: I have similar questions regarding clause 24 as I had at clause 22 around the fact that there is no appropriate term set in this clause for an associated infrastructure licence. I guess my questions would be to the minister again, and I am pretty sure I am going to know what the answers are, but what is the minister's view of an appropriate initial term, and why is there no maximum?

The Hon. C.M. SCRIVEN: I am advised that the infrastructure licence does not confer any right to construct, for example, wind farms or natural projects. It is simply the infrastructure, which could be, for example, transmission lines. Further common sense would dictate that the infrastructure required is going to be directly linked to what the actual renewable energy project is, and therefore it would not be necessary or appropriate to prescribe a time in the act as it will be linked and, in any case, the minister will be making the final determination.

Clause passed.

Clause 25.

The Hon. N.J. CENTOFANTI: I might ask a couple of questions of the minister before I move my amendment. Can the minister please advise what would constitute an example of a project of major significance?

The Hon. C.M. SCRIVEN: Whether a project is of major significance to the economy of the state will depend on the nature and scope of the project and the value and benefits it will provide to South Australia. The threshold assessment will take into account multiple factors, which may include considerations otherwise outside of the HRE Act's scope. The Governor will decide whether an activity proceeds on advice from cabinet.

The Hon. N.J. CENTOFANTI: Is that the usual process for the Governor to decide?

The Hon. C.M. SCRIVEN: I am advised it is modelled on similar provisions in the Mining Act for a special mining enterprise licence.

The Hon. N.J. CENTOFANTI: Can the minister confirm to the chamber that, despite a major significance to the economy-type project, this bill has no powers to seek to compulsorily acquire land and that the landowners will still retain ownership?

The Hon. C.M. SCRIVEN: My advice is that, yes, I can confirm that the special enterprise licence is not compulsory acquisition. A special enterprise licence confers rights to access and use land to facilitate regulated activities. It is not intended to permanently acquire or extinguish any rights and interest in land, including native title. Like other licences granted under the HRE Act, activities under a special enterprise licence are intended to coexist with other land uses to the extent that is possible.

The Hon. N.J. CENTOFANTI: Can the minister elaborate on that last statement: 'to the extent that is possible'?

The Hon. C.M. SCRIVEN: One of the goals of the act is to be able to have multiple land uses and to have activities to coexist. Therefore, the special enterprise licence may be exercised as a last resort to enable appropriate enterprises to proceed where access to the relevant land or waters is not able to be agreed.

A proponent who is seeking agreement with the minister for the grant of a special enterprise licence must as a first step initiate consultation with the minister by an application, which is the concept phase. The minister must, among other things, be satisfied the proponent has taken reasonable steps to obtain any permissions, authorisations, consents or other approvals of an owner of land, including the authorisation of the native title holders in a native title agreement or the grant of a right or interest from a freehold landowner.

If the minister advises the proponent that the matter may proceed, the proponent will be entitled to make an agreement with the minister in relation to the grant of a special enterprise licence. The minister will be required to consult with owners of land, including native title holders and freehold landowners on receipt of an application and to have regard to matters specified in any guidelines.

Any agreement between the minister and a proponent for the grant of a special enterprise licence will only be effective if the Governor ratifies the agreement, and before this can occur the Governor must be satisfied that an enterprise is of significance to the economy of the state and it is in the state's interests to grant the licence.

The Hon. N.J. CENTOFANTI: I am not sure that the coexisting of special enterprise and farming land is occurring all that well over in Victoria. Can the minister give an assurance to the chamber that what she has outlined in terms of the bill having no powers to seek to compulsorily acquire land applies to the whole of the bill in that the whole bill does not have those powers to compulsorily acquire land?

The Hon. C.M. SCRIVEN: Yes, I am advised that this bill does not have any powers to enable compulsory acquisition.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 3 [Centofanti–1]—

Page 30, line 38—After 'access to' insert 'designated'

This amendment alters the framework of the special enterprise licence to only be applicable to designated land as defined in the interpretation. This amendment has the effect of not allowing the minister to grant a special enterprise licence on freehold land.

The Hon. C.M. SCRIVEN: The government does not support this amendment. The special enterprise licence should not be limited to designated land only, because it is an appropriate power of last resort over all land. It is worth noting that it is a lesser intervention than is currently provided for under other legislation such as the Electricity Act 1996 and, again, to emphasise unlike an ordinary power of compulsory acquisition, the grant of a special enterprise licence has been designed so as to not extinguish the rights of the landowner. Therefore, the wording in the existing bill is considered appropriate.

The CHAIR: The Hon. Mr Simms?

The Hon. R.A. SIMMS: I indicated at the start we would not be supporting any of the amendments.

The committee divided on the amendment:

Ayes 6

Noes 11

Majority 5

AYES

Centofanti, N.J. (teller) Girolamo, H.M. Henderson, L.A.
Hood, B.R. Lee, J.S. Pangallo, F.

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Franks, T.A. Hanson, J.E. Hunter, I.K.
Maher, K.J. Ngo, T.T. Scriven, C.M. (teller)
Simms, R.A. Wortley, R.P.

PAIRS

Hood, D.G.E. Game, S.L. Lensink, J.M.A.
Martin, R.B.

Amendment thus negatived; clause passed.

Clauses 26 and 27 passed.

Clause 28.

The Hon. N.J. CENTOFANTI: Before moving my amendment, I would like to ask a question of the minister. Can the minister indicate what, if any, limits are put on the ministerial powers under this clause?

The Hon. C.M. SCRIVEN: The special enterprise licence requirements have already been outlined. My adviser and I are not clear exactly what the honourable member is asking about, other than what has already been stated and stated in the bill as to what is required for a special enterprise licence to be granted. That includes final approval by the Governor.

The Hon. N.J. CENTOFANTI: Is the minister confirming that it is only under the requirements of economic significance?

The Hon. C.M. SCRIVEN: My advice is, yes, under economic significance.

The CHAIR: Are you going to move your amendment?

The Hon. N.J. CENTOFANTI: I will not be moving amendment No. 4 standing in my name. This is consequential to amendment No. 3.

Clause passed.

Clause 29.

The Hon. R.A. SIMMS: I move:

Amendment No 4 [Simms–1]—

Page 33, line 33 to page 34, line 14—This clause will be opposed.

This opposes the clause that allows the minister to exempt social licence holders from any provision of the act. Just so that members are clear on the particular provision, the special enterprise licences are established under the bill. The government have indicated that this will be a licence of last resort. However, we are concerned that the minister, at their discretion, may make these licence holders exempt under any provision of the act. This is an issue that was raised with the Greens by the Law Society. It does give the minister sweeping powers and that is why we are opposed to it.

The Hon. C.M. SCRIVEN: I am advised that the way this clause has been characterised by the honourable member is incorrect and that this allows exemption only from other parts of this act under the special enterprise licence.

The Hon. R.A. SIMMS: Sorry, I thought that was what I said: exempt from any provision of this act.

The Hon. C.M. SCRIVEN: Possibly I misheard the honourable member. Clause 29 is mirrored on section 56C of the Mining Act 1971 as part of the special mining enterprises provisions under part 8A to allow flexibility. The aim of this clause is to allow an appropriate level of flexibility to the development of projects of major state significance, allowing the legislative framework to adapt to an evolving and constantly changing sector. Further, retaining this clause will provide for regulatory consistency across similar frameworks, which will aid regulators in administering the scheme.

The Hon. R.A. SIMMS: By way of clarification, maybe I misspoke. What I thought I had said is that it is my understanding that this gives the minister discretion to make the special licence holders exempt from any provision of this act, not any piece of legislation, so I apologise if I misspoke. In any case it is not being supported, so it is a moot point.

Clause passed.

Clauses 30 to 35 passed.

The CHAIR: The next indicated amendment is in the name of the Hon. N.J. Centofanti to insert new clause 35A.

The Hon. N.J. CENTOFANTI: I rise to indicate I will no longer be moving this amendment given it is consequential to my amendment No. 2, which was lost.

Clauses 36 to 40 passed.

Clause 41.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 6 [Centofanti–1]—

Page 38, after line 35 [clause 41(2)]—After paragraph (b) insert:

(ba) rent payable by a licensee for use of land in the licence area;

The current wording of the bill does not preclude pastoral lessees from being able to negotiate other benefits such as rent; however, it is not explicit in this bill. This amendment makes a further provision for an access agreement to address the payment of rent to the pastoral lessee as one of the matters required.

The Hon. C.M. SCRIVEN: The government will not be supporting this amendment, as the policy position is to provide for compensation only under access agreements. Rent is not a matter to be provided for in an access agreement. It is not a rental payment to the pastoral lessee in any event because the pastoral lessee is not the owner of the land and they are not conferring a right to access the land.

The committee divided on the amendment:

Ayes 6

Noes 11

Majority 5

AYES

Centofanti, N.J. (teller) Girolamo, H.M. Henderson, L.A.
Hood, B.R. Lee, J.S. Pangallo, F.

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Franks, T.A. Hanson, J.E. Hunter, I.K.
Maher, K.J. Ngo, T.T. Scriven, C.M. (teller)
Simms, R.A. Wortley, R.P.

PAIRS

Hood, D.G.E. Game, S.L. Lensink, J.M.A.
Martin, R.B.

Amendment thus negatived; clause passed.

Clauses 42 to 59 passed.

Clause 60.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 50, lines 22 to 24 [clause 60(1)]—Delete subclause (1) and substitute:

(1) The Minister must, for the purposes of this Division, assess the environmental impact of authorised operations against the following criteria (the environmental impact assessment criteria):

(a) the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment:

(i) the precautionary principle;

(ii) intergenerational equity;

(iii) conservation of biological diversity and ecological integrity;

(b) any commonwealth or state government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development;

(c) any relevant environmental impact study, assessment or report;

(d) the character, resilience and values of the receiving environment;

(e) the best practice environmental management for relevant authorised operations;

(f) the financial implications of complying with the matter set out in paragraph (e);

(g) the public interest;

(h) any other prescribed matter.

Amendment No 2 [Franks–1]—

Page 50, lines 27 to 31 [clause 60(3)]—Delete subclause (3) and substitute:

(3) The Minister must, in undertaking a review of the environmental impact assessment criteria, consult with persons or agencies prescribed by the regulations in a manner prescribed by the regulations.

(4) In this section—

Intergovernmental Agreement on the Environment means the agreement made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association.

Note—

A copy of the Intergovernmental Agreement on the Environment is in Schedule 1 of the National Environment Protection Council (South Australia) Act 1995.

Amendment No. 1 [Franks-1], as I mentioned in the second reading debate, is an amendment that includes the environmental impact assessment criteria in this legislation, not leaving it to the minister to determine by regulation. It is putting this important facet of the bill in the act rather than waiting for the delegated legislation.

The amendment is quite comprehensive, and it is something we have already signed up to, so one would have thought that there would not be an aversion to placing this within the act, rather than telling us that the regulations will sort it out down the track. It is very similar to the legislative requirements in Queensland and built on that Intergovernmental Agreement on the Environment.

I note that, given the high-impact nature of hydrogen projects and their potential to negatively impact our cherished landscapes, unique wildlife and cultural heritage, there is no reason for these particular considerations to be left out of this bill when it becomes an act and, indeed, left to the power of the minister to make under regulations. We need to ensure as a parliament that we put into law a framework for promoting sustainable development and safeguarding ecosystems for present and future generations.

Speaking to amendment No. 2 [Franks-1], that certainly looks at the environmental impact assessment criteria, which is consequential to the first amendment and imposes obligations on the minister to undertake consultations with relevant parties on the criteria outlined in the first amendment. I commend the amendments—they are very good.

The Hon. C.M. SCRIVEN: The government will be opposing these amendments. Environmental impact assessment criteria will be developed by the minister in consultation with persons or agencies prescribed by regulations and gazetted prior to the approval of any environmental impact report and statement of environmental objectives.

Being an objective, risk-based regulatory regime, as opposed to a prescriptive regime, allows for the regulators to ensure that industry is continuously improving and adopting leading practice for environmental protection. Prescribing these principles in legislation removes the necessary flexibility to adapt to changes that ensure that leading practice is maintained.

Amendment No. 2 [Franks-1] is consequential upon amendment No.1. As we are opposing amendment No. 1, it is important that the original provisions within the bill remain as currently structured to provide a process where consultation will occur on both the establishment of criteria and reviewing the criteria.

The Hon. T.A. FRANKS: Minister, what is the problem with ensuring consultation with regard to this particular provision?

The Hon. C.M. SCRIVEN: As I just outlined, there is consultation on these matters.

The Hon. N.J. CENTOFANTI: I rise to indicate that we unfortunately will not be supporting the Hon. Tammy Franks's amendments.

Amendments negatived; clause passed.

Clauses 61 to 72 passed.

Clause 73.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–4]—

Page 58, after line 34—After subclause (9) insert:

(10) In this section—

prescribed body means—

(a) the Minister to whom the administration of the Aquaculture Act 2001 is committed; and

(b) the Minister to whom the administration of the Fisheries Management Act 2007 is committed; and

(c) the Minister to whom the administration of the Livestock Act 1997 is committed; and

(d) any other body prescribed by the regulations for the purposes of this definition.

This amendment relates to matters set out in clause 73 of the bill. The Leader of the Opposition might be particularly interested to hear about this one insofar as it relates to the consultation process that the minister has to undertake. Of course, the minister has told us that it is envisaged that there will be consultation with relevant groups who fall under whatever piece of legislation they fall within.

I mentioned earlier that there is a general theme to the consultation that applies throughout this bill. Because I have added explicitly aquaculture and then there are further provisions around fisheries management, regardless of the fact that this is going to occur in the regulations, to provide some certainty for those watching as this bill progresses I have listed at least three bodies that would fall within the scope of the consultation.

I think it is worth noting though, and I will ask the minister to confirm this because it is something that I omitted to think of when I was drafting this, that my understanding is that the regulations will also apply to the Pastoral Act. The catch-all that I drafted when we did this was to ensure that we have 'any other body' prescribed by regulation for the purposes of this definition.

I am going to ask the minister to confirm that that will include the Pastoral Act. The three that I have listed are the Aquaculture Act, Fisheries Management Act and the Livestock Act, but I would again ask the minister to confirm that those regulations will also cover the Pastoral Act and, indeed, any other body that needs to be consulted with.

I do this in contemplation of the previous amendment that I already moved and also in contemplation of the next amendment that I move to make it explicit in the bill that those groups that I have identified are actually captured within these provisions.

The Hon. C.M. SCRIVEN: I can confirm, according to my advice, that that will include the minister responsible for the Pastoral Act and so on in the regulations.

The CHAIR: Minister, are you indicating how you are going to vote or not?

The Hon. C.M. SCRIVEN: The government will be supporting this amendment.

The Hon. T.A. FRANKS: Can the minister confirm that the government is supporting the consultation provisions in this clause, yet did not want to put it into the act in the previous clause that we just debated and was happy to wait for that consultation process to be done in the regulations? Just so I am getting this right.

The Hon. R.A. Simms interjecting:

The Hon. T.A. FRANKS: I cannot imagine why this would be.

The Hon. C.M. SCRIVEN: There are two different amendments. I have indicated the government will be supporting the amendment moved by the Hon. Connie Bonaros.

Amendment carried; clause as amended passed.

Clause 74 passed.

New clause 74A.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–1]—

Page 59, after line 6—Insert:

Subdivision 7—General duty of care

74A—General duty of care

(1) A person undertaking authorised operations must take all reasonable measures to prevent or minimise any harm to the environment within the licence area.

Maximum penalty: $250,000.

(2) For the purposes of subsection (1)—

(a) harm includes—

(i) a risk of harm, and future harm; and

(ii) anything prescribed by the regulations to be harm to the environment; and

(b) harm need not be permanent but must be more than transient or tenuous in nature; and

(c) in determining what measures are required to be taken, regard must be had, amongst other things, to—

(i) the nature of the harm; and

(ii) the sensitivity of the environment that may be affected and the potential impact of the harm environmentally, socially and economically; and

(iii) the practicality and financial implications of any alternative action, and the current state of technical and scientific knowledge; and

(iv) any degrees of risk that may be involved; and

(v) the significance of the environment within the licence area to the State and to the environment and economy of the State; and

(vi) the need to protect biodiversity in the environment within the licence area; and

(vii) any measures required to mitigate the effects of climate change; and

(viii) the extent to which an act or activity may have a cumulative effect on the environment within the licence area; and

(ix) insofar as is reasonably practicable and relevant, any assessment undertaken under this Act of potential harm to the environment within the licence area as a result of the relevant action or activity, and the extent to which any such harm was intended to be prevented or minimised by—

(A) licence conditions; or

(B) a statement of environmental objectives; or

(C) an operational management plan.

(3) A person will be taken not to have contravened subsection (1) if the person is acting in circumstances prescribed by the regulations.

This amendment will insert a general duty of care clause to provide protections against both risk of harm and future harm to provide additional statutory protections for biodiversity, mitigate the effects of climate change and further protect environmental harm. We must hold project proponents to the highest standard of care, and we need to ensure our lands and waters are protected for future generations. There cannot be any activity that causes harm, and all reasonable steps need to be taken to prevent this.

This will also insert a maximum penalty for contravening the provision. The maximum penalty will mean that a person can be prosecuted for an offence or that the breach can be subject to the suite of compliance and enforcement measures provided for in part 7, which includes compliance directions and enforceable voluntary undertakings.

The Hon. C.M. SCRIVEN: The government will be opposing this amendment. Authorised activities under the bill are recognised to have an impact to the environment as infrastructure projects. Our framework is designed to identify, manage and minimise those impacts up until rehabilitation at end of life. The Environmental Impact Report, the Statement of Environmental Objectives and operational management plan within the bill will identify the specific risks and impacts of individual projects subject to consultation requirements, and provide the procedures and legislated requirements a licensee must undertake to minimise and manage impact to the environment.

The drafting of a general duty of care with the specificity included regarding preventing harm could severely limit the activities that could be undertaken under the bill and create uncertainty for licensees, who will not be able to rely on compliance with their statement of environmental objectives and operational management plan.

The Hon. N.J. CENTOFANTI: I rise on behalf of the opposition to say that the opposition will not be supporting this amendment by the Hon. Tammy Franks.

New clause negatived.

Clause 75 passed.

Clause 76.

The Hon. R.A. SIMMS: I move:

Amendment No 5 [Simms–1]—

Page 60, line 11 [clause 76(5), definition of owner of land]—Delete 'the holder of a licence under this Act.' and substitute:

—

(a) the holder of a licence under this Act; and

(b) an owner of land that is adjacent to the licence area.

This amendment would ensure that adjoining property owners receive the same notifications as landowners. It is based on feedback received from the Law Society. As the Greens indicated in our second reading remarks, we do believe it is important there is community consensus around hydrogen projects and indeed renewable energy projects, and we felt it was appropriate that adjacent landholders be given some notification.

The Hon. N.J. CENTOFANTI: I rise to indicate that the opposition will be supporting the Hon. Rob Simms' amendment. We feel that it is entirely appropriate, when it comes to notice of entry, that the owner of the land that is adjacent to the licence area also be included in these notification processes, particularly given this provision can relate to special enterprise licences.

The Hon. C.M. SCRIVEN: The government does not support this amendment. The proposed amendment to include an owner of land that is adjacent to the licence area is a major change that is not incorporated in existing resource legislation within the state, either the Mining Act 1971 or the Petroleum and Geothermal Energy Act 2000.

If the amendment were to pass, it would cause significant inconsistencies across resource extraction frameworks that often interact and coexist within the same areas of land. Such inconsistencies could lead to ineffective and inconsistent regulation due to varying requirements and expectations on landowners.

All affected parties will be consulted as part of the environmental assessment process—and I would point out that all affected parties necessarily includes the owners of land adjacent to the licence area—to ensure potential impacts are appropriately managed to the satisfaction of the minister and coregulatory agencies.

The committee divided on the amendment:

Ayes 7

Noes 10

Majority 3

AYES

Centofanti, N.J. Franks, T.A. Girolamo, H.M.
Henderson, L.A. Hood, B.R. Lee, J.S.
Simms, R.A. (teller)

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Scriven, C.M. (teller)
Wortley, R.P.

PAIRS

Game, S.L. Hood, D.G.E. Lensink, J.M.A.
Martin, R.B.

Amendment thus negatived; clause passed.

New clause 76A.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 7 [Centofanti–1]—

Page 60, after line 11—Insert:

76A—Notice to pastoral lease holder

(1) A licensee must, if any part of the licence area comprises pastoral land, at least 42 days before entering the licence area, give to the holder of a pastoral lease in respect of the licence area a written notice in the form required by the regulations of the licensee's intention to enter the area.

(2) A notice under subsection (1) must set out the measures that the licensee will undertake, or has undertaken, to satisfy the requirements under any other Act or law relating to the management and prevention of biosecurity risks in the area.

(3) The holder of a pastoral lease who is entitled to receive a notice under subsection (1) may, by written notice, reduce the required period of notice.

(4) A licensee is not required to give a notice under this section to the holder of a pastoral lease who is otherwise entitled to receive a notice if the licensee has entered into an access agreement with the holder of the pastoral lease in accordance with Part 4 Division 3 Subdivision 6 that addresses the matters required to be set out in the notice required to be given under this section.

(5) In this section—

licence area includes—

(a) the area of land on which an activity is authorised to be undertaken under section 7; and

(b) a permit area;

licensee includes—

(a) a person authorised to undertake an activity under section 7; and

(b) the holder of a renewable energy feasibility permit.

The act is silent on issues of biosecurity when it comes to accessing land. I note previous comments by the minister regarding statements of environmental objectives and environmental impact reports, but in our opinion there should be a legislative requirement that any proponent when accessing land is required to comply with all relevant biosecurity requirements, including any reasonable requirements of the landowner and/or pastoral lessee. This is critically important to keeping out endemic pests and diseases, many of which have serious economic implications.

Therefore, this amendment has been drafted, which seeks to include a new clause 76A addressing the matter of biosecurity. It also includes amendments to clause 78—amendment No. 8, which will be consequential—to extend the right of objection to pastoral leaseholders.

The Hon. C.M. SCRIVEN: The government will be opposing this amendment on the grounds that the management and prevention of biosecurity risks are already addressed through the environmental impact report and the statement of environmental objectives process.

The role of a statement of environmental objectives is to outline the obligations for a specified activity and area. It will establish particular objectives regarding the management and prevention of biosecurity risks to ensure that landholders are protected from any incursion. A statement of environmental objectives is developed through an open, consultative process, including with affected pastoralists.

There is nothing in the Hydrogen and Renewable Energy Bill that seeks to override existing biosecurity legislation and requirements. All activities must be conducted in accordance with existing frameworks, along with the requirements of access agreements and approved statement of environmental objectives.

The committee divided on the new clause:

Ayes 6

Noes 11

Majority 5

AYES

Centofanti, N.J. (teller) Girolamo, H.M. Henderson, L.A.
Hood, B.R. Lee, J.S. Pangallo, F.

NOES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Franks, T.A. Hanson, J.E. Hunter, I.K.
Maher, K.J. Ngo, T.T. Scriven, C.M. (teller)
Simms, R.A. Wortley, R.P.

PAIRS

Hood, D.G.E. Game, S.L. Lensink, J.M.A.
Martin, R.B.

New clause thus negatived.

Clause 77 passed.

Clause 78.

The Hon. N.J. CENTOFANTI: I rise to indicate that I will not be moving [Centofanti-1] amendments Nos 8 through 14, as I understand they are all consequential on amendment No. 7.

Clause passed.

Clause 79.

The Hon. N.J. CENTOFANTI: Can the minister please confirm that legal assistance will be included in this clause, particularly in relation to compensation?

The Hon. C.M. SCRIVEN: I am advised that clause 79(3) provides that compensation may include an additional component to cover reasonable costs incurred by an owner of land in connection with any negotiation or dispute. This clause is mirrored in the Mining Act and is a well-established principle to cover costs that might arise during negotiation. That of course includes legal costs.

The Hon. N.J. CENTOFANTI: Can the minister confirm to the chamber that that is in addition to the compensation provided for any economic loss, hardship or inconvenience suffered by the landowner?

The Hon. C.M. SCRIVEN: I am advised that clause 79(1), which talks about economic loss, hardship or inconvenience suffered by the owner in consequence of authorised operations, includes the type of expense that we just referred to.

The Hon. N.J. CENTOFANTI: When this amendment was moved in the other place, the minister in the other place said, as I alluded to in my second reading speech, that they did not vote for this amendment because they did not want to limit the amount of compensation that a landowner could recover. Can the minister confirm that that is the case?

The Hon. C.M. SCRIVEN: I was under some confusion because I thought we were referring to the Bonaros amendment, but I think the honourable member is referring to the amendment that was moved in the other place. The answer is that the government does not wish to set a cap, which is not considered desirable. I think that is the essence of what the honourable member was asking.

The Hon. N.J. CENTOFANTI: Are we able to clarify my previous question, in terms of you confirmed that legal assistance is included in that compensation? That question again is: would the legal assistance be in addition to the compensation provided for any economic loss, hardship or inconvenience suffered by the owner?

The Hon. C.M. SCRIVEN: Legal costs would be a component of that economic loss, hardship or inconvenience suffered by the owner in consequence of authorised operations, so it is a component of it.

The Hon. N.J. CENTOFANTI: But there is not necessarily a maximum payment?

The Hon. C.M. SCRIVEN: That is correct.

The Hon. N.J. CENTOFANTI: I inform the chamber that I will not be moving amendment No. 15 standing in my name.

Clause passed.

New clause 79A.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–2]—

Page 63, after line 28—Insert:

79A—Compensation for material diminishment of rights

(1) Subject to this section, a person who holds a relevant authority is entitled to receive compensation from a licensee for any loss suffered by them in consequence of authorised operations that have materially diminished the rights of that person (and the onus of proving this matter is on that person).

(2) The amount of compensation under subsection (1) is to be determined by agreement between the person who holds the relevant authority and the licensee, or in default of agreement, by the ERD Court.

(3) For the purposes of subsection (1), authorised operations will not be taken to have materially diminished the rights of a person who holds a relevant authority merely because—

(a) those operations were undertaken on an area of land on which the holder of the relevant authority had a right to undertake activities pursuant to that authority; and

(b) of such matters of a kind prescribed by the regulations.

(4) Regulations made for the purposes of this section may prescribe—

(a) the matters to which a person or the ERD Court (as the case may be) must have regard in determining whether or not there has been material diminishment of the rights of a person who holds a relevant authority; and

(b) the matters that may be taken into account in assessing the amount of compensation payable to a person under this section; and

(c) limitations on the amount of compensation payable to a person under this section, including limitations that may apply if the person is entitled to receive compensation under another provision of this Act or any other Act or law.

(5) In this section—

relevant authority means an authority under the Fisheries Management Act 2007.

Members will recall that at clause 4 I moved an amendment to ensure that it is explicit in the bill that 'owner of land' includes those with authorisations and licences under the Aquaculture Act, which was the government's intention, and, as such, they will fall within the provisions that are outlined in clause 79 of the bill, which deals with compensation.

New clause 79A, which is a new insertion, takes a slightly different approach and, indeed, adopts the method outlined in the Mining Act, and rights that apply under that piece of legislation when it comes to the conferral of compensation rights for those individuals with relevant authorities and licences under the Fisheries Management Act.

In essence, it is the same in terms of prescribing in the bill an entitlement to compensation subject, of course, to being able to show displacement or loss of effort and economic impact. It is just a different way of doing it, and because we are dealing with another piece of legislation here—and I note that, based on the discussions that I had with the relevant minister, there was absolutely to be no suggestion, and there is no suggestion, that this confers any property rights on those that fall under the Fisheries Management Act, but it does confer on them a prescribed entitlement to compensation if they suffer loss in consequence of authorised operations that have materially diminished the rights of that person, and of course the onus of proving that is on the person themselves.

Further to the questions that were just addressed by the minister, the provision then sets out a further framework in relation to the role of the ERD Court where there cannot be agreement reached between the individual impacted and the licensee. So, in essence, it is the same as what we are doing in clause 79, but it is just a different way of doing clause 79. It is absolutely clear we are not conferring any property rights, and it is absolutely clear that aquaculture will fall within compensation offered under clause 79, and compensation entitlements for those that fall under the Fisheries Management Act will be captured by this new clause 79A on the basis of material diminishment of rights, which is consistent with those provisions that already exist under the Mining Act.

The Hon. C.M. SCRIVEN: The government is happy to support this amendment.

The Hon. N.J. CENTOFANTI: I rise to say that the opposition is also happy to support this amendment.

New clause inserted.

Clauses 80 to 113 passed.

Clause 114.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–2]—

Page 85, after line 31—After subclause (5) insert:

(5a) A regulation may not be made under this Act except in accordance with a resolution passed by both Houses of Parliament.

This amendment provides that a regulation may not be made under this act except in accordance with a resolution passed by both houses of parliament. This takes delegated legislation and regulations and it ensures that the parliamentary scrutiny that should be applied to those pieces of legislation is actually applied. In this case, given so many of the things that the Greens have raised in terms of environmental protection and other aspects of this bill are going to be put in regulation, we think it is only fit and proper that this parliament have proper scrutiny of that.

We know that we are one of the few jurisdictions in the country where, should we seek to disallow regulations, as we have had debated today, we have to either do the entire regulation or none at all. We cannot pick the particular offending pieces out as other jurisdictions are able to do and simply disallow those parts. Indeed, once we are presented with the set of regulations, it is the whole set or it is nothing.

We also know that the legislative load of bodies such as the Legislative Review Committee do get the burden of looking at this, but it is certainly not the entire parliament. When we are saying we want this legislation to be setting the standard, world leading, taking us where we have not gone before, being bigger and better, then why not ensure the parliament's scrutiny of the regulations that we have been promised are going to be so great is actually done by the parliament?

With that, I commend this amendment and I note that I look forward to it probably being opposed by all sides and note that every single time we have raised another issue in this debate we have been told it will be done in the regulations. Well, bring the regulations back to the parliament, then we will have the proper debate that should have been had today.

The Hon. C.M. SCRIVEN: This amendment is opposed as the making of regulations in South Australia is appropriately covered by the Legislative Instruments Act 1978. Prescribed within that act are appropriate checks and balances for the making of regulations. The ordinary means by which parliament retains control over the exercise of regulation-making powers is through its ability to disallow regulations.

In addition, parliament can amend the legislation under which the regulations are authorised. Parliamentary counsel has confirmed that no such power exists in any legislation in South Australia. As such, the government considers that the Legislative Instruments Act 1978 appropriately provides the necessary rigour and is the established and consistent process for the making of regulations in South Australia.

The Hon. T.A. FRANKS: Time and time again, I have heard debates about regulations where it has been bemoaned that we have to either pass the whole lot, accept the whole lot, that we cannot pick out the offending bits and that, 'Isn't it terrible that we have stuck with this system?' Time and time again, we have also been told that we are going to set the pace with this legislation.

Just because it has not been done before in this parliament does not mean it cannot be done in this legislation. I thought this legislation was meant to lead the way, be better for democracy and reflective, indeed, of parliamentary democracy, rather than continuing to put things into delegated legislation where appropriate scrutiny is never going to be as high.

The Hon. C.M. SCRIVEN: The suggestions that the honourable member makes in terms of being able to disallow parts of regulations would be more appropriately addressed through changes to the Legislative Instruments Act 1978.

The Hon. N.J. CENTOFANTI: I rise to indicate that I certainly appreciate the honourable member's frustration. We, too, on this side have had a lot of frustration in regard to executive and government continually relying on more and more bits of legislation through regulations or pieces of delegated legislation, so I can absolutely understand the reasoning for the honourable member putting forward this amendment. However, I do rise to indicate that we will not be supporting this amendment, only because I think doing it in this manner has the potential to set a dangerous precedent in regard to parliamentary process.

The Hon. C. BONAROS: I note the advice that has been given by the government, but I also note the point that has been raised by the Hon. Tammy Franks because it is a point that we have all harped on about in this place for a very long time. I am a member of the Legislative Review Committee and deal with this frustration on a daily basis and so I do understand that much.

My point in relation to this—and I appreciate what we have said, that just because we have not done it before does not mean we should not do it. My concern is I have sought some advice on this prior to now and given that it is a new concept, if you like, I am not quite sure how it will work or whether indeed it is workable.

Whilst I do not disagree with the intent of what the member is doing, I am concerned about whether or not this is actually a workable solution or whether, as many of us have raised in this place time and time again, we should be looking at other changes in this place that address this issue more systemically and across the board.

I do not know if it is a dangerous precedent. I do not think any of us know if it is dangerous. I do not think any of us know if it is workable. I do not think any of us know if it is unworkable, but that is what we are being asked to decide with this amendment and I think that this is one of those times where this is an issue that we revisit outside of the scope of this bill and more generally across the board.

The Hon. T.A. FRANKS: I would just add that if people think this is dangerous, that it is dangerously democratic, then I am a bit concerned that people in this place are worried about democracy.

Amendment negatived; clause passed.

Remaining clause (115) and schedule passed.

The Hon. C.M. SCRIVEN: I seek leave to table some answers to questions that were taken on notice during the morning sitting today, asked by the Hon. T.A. Franks.

Leave granted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. C.M. SCRIVEN (Minister for Primary Industries and Regional Development, Minister for Forest Industries) (22:49): I move:

That this bill be now read a third time.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (22:49): I rise to make a small contribution, noting that most of our concerns have been expressed during my second reading contribution. I do think it is important, though, to again place on the record that we the opposition believe it entirely appropriate for a bill of this magnitude, that has the ability to have huge impacts on a number of landholders and licensees, to be scrutinised by this parliament. It is disappointing that the motion by the Hon. Robert Simms was blocked today and that this government has continued to push this piece of legislation through this chamber.

That said, overall, stakeholders the opposition have spoken to understand the importance of decarbonising their operations and they recognise the ability for decarbonisation to be a facilitator in diversification of income streams, particularly given the often cyclical nature of farming operations. It is our understanding that many of these stakeholders have also been given assurances by this government that many of their concerns will be addressed in the regulations. As the minister in this place pointed out, the minister in the other place, when asked directly about these concerns, stated that that would indeed occur.

The opposition certainly hope and trust that this is the case and we certainly will be scrutinising those regulations when they do come through. Because of these reasons, we certainly will not be opposing this bill, but again stress that the opposition does have significant concerns about this bill and the potential implications it will have on landholder rights into the future.

The Hon. R.A. SIMMS (22:52): I want to make some final concluding remarks on behalf of the Greens. From our perspective, we find ourselves in a disappointing position tonight because we wish we had a bill that we could support enthusiastically. Indeed, we have done everything we can to try to improve this legislation. We have moved a series of amendments to try to do so, in particular to try to prevent the use of blue hydrogen from methane gas and to try to wean South Australia off gas.

We have also tried in vain to refer this bill on to a parliamentary committee so that we were able to consider the implications of this proposal and to provide members the opportunity to conduct more consultation with their communities. This is a big opportunity for our state and there was a big opportunity for the government to do things differently and to focus purely on green hydrogen and renewable energy. That said, we recognise that there are some benefits in the legislation and we will not be opposing the bill.

The Hon. C.M. SCRIVEN (Minister for Primary Industries and Regional Development, Minister for Forest Industries) (22:53): If we pass this legislation in a moment, it will be a world first. We can expect international policymakers to look carefully at what we have achieved here today. In terms of renewable energy uptake, we are already world leaders. We should be proud of again demonstrating our leadership in the uptake of renewables. I commend this bill to the house.

Bill read a third time and passed.

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