Industry Advocate Bill

Ms CHAPMAN ( BraggDeputy Leader of the Opposition) (17:15): I rise to speak on the Industry Advocate Bill of 2017 and acknowledge the Assistant Minister to the Treasurer's introduction of the bill on 31 May. It had a gestation period of consultation over a number of months and follows the government's announcement that they would initiate this statutory body. Essentially, the bill proposes to enshrine the role of the Industry Advocate by statute.

Currently, Mr Ian Nightingale is the Industry Advocate, appointed in February 2013, so he has operated over a number of years to date. That followed the government's introduction of an industry participation policy in July 2012, which they claimed aimed to deliver an economic benefit to South Australia via procurement. Essentially, in that regard, where appropriate, it is to give some weighting for local employment, product and service in the procurement that is offered by contract in the development of their infrastructure, etc. It is a valuable pool of money, so it is not hard to identify the significant extra economic benefit to the state if, in fact, local produce and labour are employed. 

It should be noted that the government continues to maintain a procurement board, which provides an annual report to the parliament. The State Procurement Board report for 2015-16 was published and I wish to refer to three features in respect to that report. Firstly, the functions of the board, as far as affecting members of the public, are described as follows: 

As the Government's principal procurement body for goods and services, the Board's objective is to oversee a system of procurement for public authorities directed towards obtaining value for money in the expenditure of public money, providing for ethical and fair treatment of participants and ensuring probity, accountability and transparency in procurement operations. 

Whilst there are a number of strategies that support this board that it operates under, including to ensure that there is a level of probity in respect to the procurement offered by a number of public authorities, it clearly identifies a value for money principal objective. It seems to me, with the establishment of the Industry Participation Policy and development in that regard (through a different entity, admittedly) that there needs to be some consistency. 

Clearly, the public authorities, which are basically the government departments and which operate under the rules that are applied and supervised by this board, have a number of exemptions. Included in those are a number of statutory authorities, such as the Motor Accident Commission, the Return to Work Corporation and the Urban Renewal Authority. If ever there were a body that should be under supervision, it ought to be that body, in my view. Fortunately, there are other means to manage some of the projects they undertake, not the least of which is the one sitting out the back of this building and which seems to have haemorrhaged into dysfunction in recent times. 

Let me go back to the fact that the State Procurement Board, under the Freedom of Information Act, is obliged in its annual report to the parliament to tell us about information that is to be published pursuant to section 9 of that act. I mention the fact that it is not an exempt agency under the Freedom of Information Act. The member for Mitchell has identified that we will be supporting the passage of the bill. There has been a call for the commitment to ensure that there be an industry participation policy and that we have some process by which to implement that. 

Over the last three years, that has been under the supervision of the Industry Advocate, as I have said. It seems, on inquiry to Mr Nightingale, that there has not been, in the three years of his office, one single occasion when he has sought information from a contracting party under the definitions of this act, or anyone else he might have asked, for that matter, when information and documents have not been provided for his scrutiny. So, it begs the question why it is necessary to introduce a regime of a statutory body under which there is a penalty of up to $25,000 for failing to provide information or documents. 

As others no doubt will identify, including the Law Society, there is no definition in this bill of what is to be covered by 'information or documents'; nevertheless, the potential $20,000 penalty for noncompliance is there. Members should be aware that there is also a confidentiality obligation and a proposed penalty of up to $20,000 for noncompliance with that on a person, who is presumably the Industry Advocate or any employees in his mini-department, who receives information or documentation. 

There is one aspect of that I find concerning; that is, it is confidential, subject to legal proceedings. There is no identification of what the legal proceedings are. I raise this in respect of the question of how we deal with the obligation under this proposed legislation on someone who is a party to a contract, within the definition, but is also a party to litigation with the government in respect of a legal dispute, to produce a document to the Industry Advocate. Quite clearly, in those circumstances, we would suggest there should be no obligation to produce that material. 

Let me raise a couple of other general matters in respect of the bill. The government claims that the bill is modelled on the Small Business Commissioner Act, which is an entity established by the government. John Chapman is the Small Business Commissioner in this state, and he has a role to manage and mediate disputes, frequently between contractors—small business—and the government because they are not being paid or whatever. Nevertheless, he is playing a useful role in that sense. 

We from our side of the house did not see that as a necessary statutory role, but that does not mean he is not doing good work in trying to manage what has really been a burdensome job for the small businesses of South Australia in dealing particularly with government in respect of their rights being enforced. Notwithstanding that, it should be noted that the Small Business Commissioner model, under his act, does not make provision for that agency to be exempt under the Freedom of Information Act. They, too, have a model in which there is a penalty for not complying with a request to produce information or documents. 

The Kangaroo Island commissioner is another commissioner of this government. There are plenty of them. In the last 15 years that I have been here, we seem to have been swimming in them. That is another one where there is a financial penalty if you do not produce documents or information. Indeed, even contracts of a local government have to be produced. There is a financial penalty together with this powerful weapon of reporting them to the parliament if they do not do as they are told. 

If the education department at Kingscote does not tell the KI commissioner about what they propose to do in a certain area, they can report them to the parliament. Presumably, the KI minister, who I think still is the Attorney-General, is then able to march into the cabinet, armed with this report from the KI commissioner and say, 'These are naughty people from the other departments. Minister Close, what are you doing in your education department? Why haven't you given this information?' It is almost laughable. 

Nevertheless, we have this concept where people have a financial penalty if they do not comply, or in the case of the KI commissioner, they are reported to the teacher. Under this bill, we are also going to have a report to the teacher process, where you give a report to the minister if they do not do what they say they are going to do under a contract. Presumably the Industry Advocate rings the minister—presumably he already does this if there is some difficulty in this regard—and I am not sure which one it will be yet. Let us say it is the Minister for Finance; he says, 'Dear minister, we've got a recalcitrant party here and we want some action.' 'Well, report to the teacher.' Big deal, I say. 

In any event, the KI commissioner, under her legislation, is not exempt, an exempt agency. We have exempt agencies under the FOI Act for the ICAC commissioner, for SAPOL, for the Ombudsman's office. There are obviously investigative agencies, not a statutory inspector, for the government, which is what the advocacy bill will produce. They are not, and should not be, an exempt agency. It is as simple as that. There is no basis whatsoever for that to occur.     

What has been presented to us is that there needs to be a level of trust by the people who are going to give the information that there will not be a breach of confidentiality in respect of what is commercial-in-confidence. Well, hello—that is exactly what is already in the Freedom of Information Act, which enables a document, or a part thereof, to be redacted or withheld on the basis of something being commercially sensitive, along with other things, including being exempt for the purposes of being a cabinet document, including personal information and the like. That is all in the Freedom of Information Act. 

We do not need that in this act by declaring this an exempt agency and then having some clawback in clause 17 of the bill that purports to exempt in a sort of reverse way the agency, save and except for the financial and administrative information relating to the operation of the Industry Advocate—whatever that is—and statistical information that does not identify any particular personal business. There is no definition of these matters in this new bill. It is completely novel in this legislation. 

It is completely unnecessary in the context of it being a freedom of information exempt agency because the Freedom of Information Act makes it very clear that the protections that are sought in this regard are already covered under the Freedom of Information Act. Is there not already an anticipation that the government will say that there should be some very explicit provision in this bill and it should be done in the reverse? There should not be an exempt agency under the Freedom of Information Act. In my view—and I will move an amendment accordingly—clause 17 should be deleted. There should not be an exempt agency at all. 

I agree that proposed clause 13 can be amended to specifically protect commercial‑in‑confidence documents. That can be specifically there. It has to be in the same wording as the Freedom of Information Act. Furthermore, as has been pointed out by the Law Society, it is completely unacceptable that the government should be given the right via the Industry Advocate or any other party to demand, under threat of penalty of a major fine, documents or information when the party concerned may already be in litigation with the government. They are the party to these contracts. It is totally unacceptable. It is a backdoor disclosure or discovery process that is completely unacceptable. I am absolutely amazed that no-one from Business SA or anyone else, other than the Law Society, has screamed out about this. It is just completely unacceptable. 

I say to the government: if you want to have this statutory provision in respect of the Office of the Industry Advocate, so be it, but do not try to cherrypick out bits of things that you say are going to be a helpful instrument in trying to ensure that procurement and the local use of a product or service or employment is going to be an advantage economically for the state by using this as some battering ram for the purposes of obtaining information in circumstances that you should not, or, further, using it as a means by which you can protect yourself against scrutiny, the same as any other government agency, in respect of what you do. That is the message I give clearly to the government. 

Can I say that there must be some capacity to review an industry advocate's notice to demand the production of information. It is administrative law; it is administrative law 101. It is not acceptable that a person, whether they call themselves an industry advocate, a commissioner, the head of a department or anyone else, has the power to require a certain thing to happen and there is no capacity for administrative review, other than to apply to the Supreme Court of South Australia as an administrative act, and that in itself is limited. 

What is entirely appropriate here, the same as for any other act of a public sector employee or, indeed, a minister in this regard, is that there must be a review process. We would suggest that be via an option through the SACAT, which is supposed to be the streamlined, new, efficient, humming, multijurisdictional tribunal for the purposes of sorting out with a quick and efficient capacity of review. 

I say that, with those three matters to be considered in the amendments, which I will move in committee, it is important that the government recognise that the importance of accountability is very, very significant here. It has some ironing out to do in respect of its inconsistency with the Procurement Board. I hear Mr Nightingale's plea not to overload him with the current work of the Procurement Board, and it may be that issue has to be looked at, but certainly some streamlining of the strategy needs to be dealt with. It does not have to be put into statute, but we need to have it dealt with. 

Finally, in respect of transparency generally, the Freedom of Information Act needs reform, and we have been waiting years for the government to undertake Mr Lander's recommendations in respect of freedom of information reform. It still sits languishing, just like the whistleblower reform in this state—and that is deadlocked in a conference at this point and the government seems to have no appetite to move—and consistent with that is the government's approach not even to have open hearings for ICAC in respect of maladministration and misconduct matters. 

At every level, the government appears to be closing down, shutting down and excluding the capacity for anyone to scrutinise their management or mismanagement of this state. The secrecy surrounding the information on which they rely, closeting it in a bubble of concealment, is completely unacceptable. By all means, move to a statutory body if you want to. It seems there is no reason that we have to have a statutory body. It seems there is not one single case of anyone not complying—and, frankly, why would they not comply? Most of them are desperate to get a job. They want the contract signed. 

Nevertheless, if that is the way the government want to go through, we can see how that operates. In the meantime, do not try to cover it up with some secret cover and cloth of concealment as though this is going to be some agency of economic benefit for the state but it has to be done in some secret Star Chamber, unreviewable and with no protection for those who may find themselves prosecuted for their failure to provide a document or information. 

As I said to Mr Nightingale during the briefings, it is not just the documents that you say you are going to rely on for the modelling, etc., that are later attached to the contract stating how many local people are going to be employed, what steel is going to be used, etc. The information is not defined. You can ask, 'Are you sleeping with the contractor's wife?' There is absolutely no definition in this bill, and we need to have some idea about what the rules are going to be. 

The government, and in particular the Assistant Minister to the Treasurer, has a little bit more work to do. I hope that he will look sympathetically at our amendments because they are presented in good faith and try to make the Industry Advocate role continue to be productive, which I think it is. There is no provision in here for an annual report to the parliament—there is a report to the minister, and goodness knows what happens to it after that—but I think there should be. Nevertheless, I ask that we maintain some transparency and accountability and that the amendments are considered favourably.