Mr BELL: I move:

Amendment No 1 [Bell–1]—

Page 2, line 13 to page 3, line 32 [clause 3, definitions of government agency, responsible Minister and State authority]—Delete the definitions

Mr WHETSTONE: With regard to the interpretation of the act and the commissioner, there has been an amendment put forward by the member for Mount Gambier to delete the definition of 'government agency'. Minister, can you give me an understanding of why we will not want to have those definitions of the responsibility of the 'government agency', 'responsible Minister' and 'State authority', and we understand who the responsible minister will be?

The ACTING CHAIR (Mr Odenwalder): I understand that question was on the amendment. The member for Mount Gambier can respond.

Mr BELL: I thank the member for Chaffey for his question. As the amendment stands, once the amendments go through, there is no requirement for those definitions to be referred to in the bill because they actually will not appear in the bill, so to keep those in there is unnecessary. Again, this is a process of streamlining and simplifying the legislation. The definitions do not need to be there because they will not appear further in the bill once the other amendments go forward.

Mr WHETSTONE: Thank you, member for Mount Gambier. We understand the responsible minister will be the minister for regions, but can the member explain how the delegation process will go from the minister to—or how the commissioner will be appointed?

Mr BELL: It is my understanding—and again I am happy to defer to the government on this—that the position will be advertised, nominations sought as normal and a process carried out to appoint the inaugural Cross Border Commissioner under the Cross Border Commissioner Bill 2022.

The ACTING CHAIR (Mr Odenwalder): I think the minister may also have a response.

The Hon. A. KOUTSANTONIS: I am advised the definitions are no longer required if the amendment is successful. The consequence is that the 'government agency' definition will be removed due to the amendment filed regarding the removal of clause 9—Annual plan. The 'responsible Minister' definition will be removed due to the amendment filed regarding removal of clause 9—Annual plan. The 'State authority' definition will be removed due do the amendment filed regarding clause 9—Annual plan.

I understand that the cross-border commissioner 'should' live in a cross-border community, rather than 'must'. It is the aspiration of the act that they live there. I hope this goes some way to answering the member's question. If there is something else I can get him a briefing on, I will be happy to do so.

Mr WHETSTONE: Thank you, minister. I guess I am a little concerned that you are talking about an aspiration. That is no clear indication in that application, that we have a cross-border commissioner who, as an aspiration, lives in the regions. It could potentially be a ministerial appointment out of an office—someone who lives in Adelaide and not understanding what the regional issues are as the commissioner.

The Hon. A. KOUTSANTONIS: I understand that the democratic process in the upper house has given us a bill that says that a cross-border commissioner should live in the regions rather than must, and we respect that democratic process.

The ACTING CHAIR (Mr Odenwalder): I will be generous and allow you one more question on this clause, either to the amendment or to the clause itself.

Mr WHETSTONE: My question is to the amendment and to the member for Mount Gambier. The member has made it very clear that he will delete the definitions of the 'agency', the 'Minister' or the 'authority'. To the member: can you give me an undertaking of your desire to have a specific person living in the region, or what the call for that position would be if it is someone living within a cross-border community?

Mr BELL: It is my understanding that the minister has given that undertaking and that it will be advertised. It is also my understanding that you cannot legislate, which is what this is, where somebody lives. The emphasis on 'should live' is a strong indication that they should be living in the cross-border region, and I believe Mount Gambier has been identified. Legislating where somebody must live would be highly peculiar, and there would be legal argument on whether or not you could legislate where somebody actually must live.

The clear intent in this, of course, is that this person should and for all intents and purposes will be living in Mount Gambier. The conversation I had around this was: let's say somebody is appointed, they are living in Mount Gambier, and then a family tragedy occurs and they are required back in Adelaide for a period of time. The notion legislatively, and in terms requiring them under legislation, is something that would be highly peculiar and not known to be done in any other piece of legislation in South Australia.

Of course, it is the clear intent and I believe that the minister who has carriage of this bill in the other house has indicated that desire. 'Should' is in the legislation, and a process will be undertaken which is open and transparent.

The ACTING CHAIR (Mr Odenwalder): Minister, do you have anything to add to that? You do not have to.

The Hon. A. KOUTSANTONIS: I concur with what the member has said. It would be impractical legislatively to make it a requirement where people should live within a state. I am not even sure it would be constitutionally lawful. The intent here is very clear and, obviously parliament can send a signal, as we do—we do so through our second reading speeches, we do so through our language in our legislation—and this is a clear indication to people within the department and the minister's office who are in the process of employing a cross-border commissioner that the intent and will of the parliament is that this should be a person who is from a regional community.

Amendment carried; clause as amended passed.

Clause 4.

The ACTING CHAIR (Mr Odenwalder): I understand there is an amendment which essentially deletes clause 4 in the name of the member for Mount Gambier.

Mr BELL: I am not progressing with amendment No. 2 on clause 4.

The ACTING CHAIR (Mr Odenwalder): In that case, are there any questions on clause 4 as printed? No.

Clause passed.

Clause 5.

Mr BELL: I move:

Amendment No 3 [Bell–1]—

Page 3, lines 36 to 39—This clause will be opposed

This amendment removes clause 5 as an act to bind the Crown. The information I have been given is it is impractical to have this in. This is a direct copy and paste from the Commissioner for Kangaroo Island Bill 2014. It perhaps did not cause issues in that bill, but with the power of hindsight may going forward, and that is around binding other agencies and parliaments such as the commonwealth, the local government, even down to planning.

If this clause stays in there, it is unenforceable to bind the commonwealth with state legislation. That is what this would in actual fact be aiming to do. Again, for simplicity, to streamline the bill it seemed prudent to amend that and take that out because in practice it is not workable at that level.

Clause negatived.

Clauses 6 and 7 passed.

Clause 8.

Mr BELL: I move:

Amendment No 4 [Bell–1]—

Page 5, line 13 [clause 8(g)]—Delete ‘in accordance with section 9’ and substitute:

in consultation with the Minister

Amendment carried; clause as amended passed.

Clause 9.

Mr BELL: I move:

Amendment No 5 [Bell–1]—

Page 5, line 18 to page 6, line 27—This clause will be opposed

Mr WHETSTONE: I have a question. If we are prepared to embark on a commissioner, the annual plan, I have concerns around the commissioner in relation to the delivery of services. This is one of the main issues that we have had to deal with through implementing a cross-border commissioner, that we have been held back with the delivery of services, particularly with cross-border communities—services that are provided one side of the border or the other.

The annual plan is about understanding how we define what services will be impeded through the implementation of the commissioner and how they can deal with the services that have been impeded through different regulation or legislation either side of the border. Can you please give me a better understanding of why you are opposing the annual plan?

Mr BELL: This is a really important point: there will be an annual plan. It says so in clause 8(g), which we just amended to read 'to prepare an annual plan in consultation with the minister'. So there will definitely be an annual plan. This has been a little bit confused between the houses, but it is there in black and white.

What we are opposing is the prescriptive nature of that annual plan because, quite frankly, we do not know what we do not know yet, and if you go with a very prescriptive method of how you are going to set out that annual plan what you are really doing is locking the commissioner into a whole set of procedures that may or may not be relevant going forward.

To give comfort to people around this, look at clause 8—and I will read this out:

The functions of the Commissioner are as follows…

(b) to work and engage with all tiers of government, businesses and the community to ensure the needs of cross border communities are considered in the development and implementation of policy, procedures and legislation;

So there is consultation scripted in this legislation. The annual plan has to be done; that is under clause 8(g). We have the annual plan and we have the prescription that you have to consult with all the stakeholders. The part that I am opposing is under clause 9, where it sets out in a very prescriptive way how that is to occur. The reality is that everybody spoke here today about cutting red tape, making sure that we do not bind this commissioner to endless plans, endless reporting and no doing. The fact of the matter is there will be an annual plan. The commissioner will take direction and work with the minister, and the commissioner will have to work and engage with all tiers of government, with business and with the community, etc.

Again, the intent of removing clause 9 is to simplify the bill, to make sure we do not inadvertently—because I think the intent of this comes from a good place—bind the hands of the commissioner. All they are doing is writing an annual plan and then reporting on that annual plan without actually doing the work that needs to be done. If I could allay people's fears, there will be an annual plan. It is in this legislation. They will have to consult and they will have to produce an annual report that is tabled here in parliament. So all those things are covered off.

What I am removing with my amendment here is the very prescriptive nature of it, and again it looks to me like it is lifted pretty closely from the Kangaroo Island bill of 2014, yet the two commissioners are set up for entirely different purposes, with entirely different outcomes that they want to achieve. One was an infrastructure one that absolutely had to put those plans together because they dealt with the council on infrastructure.

With this one there is quite a lot of stuff that will not involve a local council at all. It might be state government to state government. It might be federal government. It might be business to state government. Whilst the council is a key partner in this, they might not need to be consulted on every single piece of planning that is going forward. Again, it is really just to simplify, and not tie the hands of the commissioner before he or she is able to hit the ground and actually make some runs.

Mr WHETSTONE: We are talking about clause 9, the annual plan. Member for Mount Gambier, in your first sentence you referred back to clause 8(g) and you said to 'prepare an annual plan'—and I missed that last bit. My paper tells me it is to prepare an annual plan in accordance with section 9, so the only thing that is prescriptive is ensuring consultation with the community, and I guess there is no minimum requirement for consultation.

Mr BELL: I will address that by amendment No. 4, which is what we just passed. It was clause 8 deleting 'in accordance with section 9' and substituting 'in consultation with the Minister'. We just deleted part of that line and put consultation with the minister in there. That part has already been done.

In terms of the member for Chaffey's question, there will be consultation. It may not necessarily be with the council on that particular deliverable, KPI—whatever we want to call it—because quite frankly we do not know the scope of the issues that the commissioner will start on. What gives me comfort in this part was the previous amendment that the minister will be guiding the process and, of course, local MPs are key stakeholders. It says in clause 8(b) 'to work and engage with all tiers of government', and that obviously includes local members.

Clause negatived.

Clause 10.

Mr BELL: I move:

Amendment No 6 [Bell–1]—

Page 6, lines 28 to 33—This clause will be opposed

Amendment No. 6 in my name is that this clause be opposed; that is what the amendment says.

Mr WHETSTONE: Member for Mount Gambier, you mentioned the power to require information. What is it that you are opposing, that the commissioner should not have the power to request or require either information or the performance of the functions of the act?

Mr BELL: The information that I have is that, again, this is an unnecessary clause for two reasons. One is that it is consequential to the previous clause which, for reporting purposes, is not required, and the intent of the bill is for this position, this commissioner, to be collaborative and foster or facilitate bringing people together. If there is a need for requiring information that a department will not hand over, the commissioner has the support of the minister and the support potentially of the cabinet.

We could not think of a situation where the commissioner would be requiring or forcing a department to hand over information that they would either not be able to get or have access to, or a situation where a minister or the cabinet, if it was deemed extremely important, needed that information. It is the intent of the role to be collaborative, to bring people together, to foster solutions and not necessarily to be adversarial to other government departments. Of course, when you take the scope of this position wider than just South Australia—this is a very important point—the commissioner will have no power to compel another state government or federal body to hand over information.

If we are going to start going down this road of putting in legislation that they can compel, you are setting up an adversarial system when, quite frankly, I do not see the purpose in it nor the need for the compulsion of evidence or information that would not be able to be obtained, either through a minister, who the commissioner will be working very closely with, or the entirety of the state government.

Clause negatived.

Clauses 11 to 14 passed.

Clause 15.

Mr BELL: I move:

Amendment No 7 [Bell–1]—

Page 7, line 19 [clause 15(1)]—Delete ‘Act’ and substitute:

section

Mr WHETSTONE: Member for Mount Gambier, you are saying that you are looking to substitute 'act' with 'section'. What is it that you are deleting, as far as any delegation from the commissioner or the minister to the commissioner?

Mr BELL: Absolutely none. It is my understanding that maybe this is a typing error that has slipped through. To avoid confusion, the proper reading of this section should be as I just outlined, that subject to this section the minister and the commissioner may delegate any functions under this section. Coincidentally, I have used the Commissioner for Kangaroo Island Bill 2014 not disparagingly but as a contrast, and in this case that is exactly how it is written under the Commissioner for Kangaroo Island Bill 2014.

My advice is that it is the correct determination and it will avoid confusion, because if you keep it the way it is the delegation could be over the entire act, and that is fine but it is this section that gives that power of delegation. So instead of reading that you will delegate under this act, the correct reading of it is that you are delegating under this section of the act, and you may delegate a whole range of aspects from there.

It is really just tidying up that one word. There is no intent to remove delegation powers, change it or anything like that; it is really just tying it up. It is semantics to a degree, because we are splitting hairs on this, but my advice was that that was a word that really should read 'section' because that is the section where the delegation comes from.

Amendment carried; clause as amended passed.

Clauses 16 and 17 passed.

Clause 18.

Mr BELL: I will not proceed with my amendment on this clause.

Clause passed.

Remaining clause (19) and title passed.

Bill reported with amendment.