Land Acquisition (Miscellaneous) Amendment Bill

Second Reading

I wish to place on the record my appreciation to all members for their contributions. I note that the opposition has indicated that they will reserve their position for now but will indicate further once the shadow cabinet and caucus have been consulted. To the best of my knowledge, briefings have been made available to those who have requested them.

I understand that the member for Badcoe has raised some matters today, which are not peculiar to issues that may prevail in just her electorate, such as the interruption of an underground area that might traverse a lawful entitlement to access to water via a bore. There are a number of rules that relate to access to water, and I think the Hon. Gail Gago, in her time as minister, undertook regulatory reform to make it more difficult for people to access bores.

This was largely as a result (and this is no reflection on her) of the 10-year drought that South Australia was undergoing at the time, so the opportunity for people to access water via bores has been more limited by virtue of other rules. Nevertheless, they are matters on which advice is still being obtained and, as with any other matters raised, we will ensure that that information is made available between the houses.

I wish to acknowledge the other members who have made a contribution: the member for West Torrens, and I will come back to him in a moment; the member for Kaurna; and also the member for Badcoe, in addition to the usually entertaining contribution by the member for Coomandook—

Hammond. Obviously, his ancestors made an enormous contribution to the defence of the country in wartime requirements and, in more recent decades, to having the Dukes Highway traverse their former property in that area.

 Current, sorry. Contributions have been made by members and members of their constituency in the examples that have been given. In relation to the general proposals, one matter was raised as to the litigation in these matters. Members may be aware that there is jurisdiction within the Supreme Court to challenge aspects in relation to the Land Acquisition Act. I am advised that there are usually between 10 and 15 cases a year in which applications are made. Many of those settle and there is an agreement reached between the parties, which are frequently the transport department and a relevant party relating to major transport infrastructure.

Sometimes, when judgements are required, they are in favour of the Commissioner of Highways. I am just looking at last year's results. I think there were six judgements, one of which is under appeal, in favour of the Commissioner of Highways and one judgement against the Commissioner of Highways. So litigation is accessible as an available arbiter in relation to these disputes, and it seems as though they are being carried out as we would expect and finalised, unless by agreement, by judgement. They are not all entirely one way.

That is encouraging, and I urge members—particularly the member for West Torrens, who I think features in it—to review the report of the Select Committee on Compulsory Acquisition of Properties for North-South Corridor Upgrade, tabled in the Legislative Council of this parliament on 20 June 2017. What is important is that this was an inquiry conducted between 2015 and 2017, chaired by the Hon. Mr Darley, with other members of the Legislative Council: Messrs Brokenshire, Kandelaars, Ridgway, Stephens and minister Gago, although she may not have been minister at that time; probably not if she was on the committee.

In any event, they made a comprehensive assessment of many of the concerns that were raised largely in relation to the issue surrounding the development of the Main South Road corridor, concerns raised by numerous residents that they had been inadequately advised, if at all, that there was clearly disrespect, in their view, in the discussions and negotiations that were undertaken and that there was a failure to give adequate compensation, in their view, bearing in mind that some of them took the view that their residence particularly was one which they ought not to have to lose at all. There were obviously some who were very emotional about that.

Mr Michael Deegan was the chief executive of DPTI at the time, and the former member for Croydon, the former attorney-general in this place, put submissions on behalf of his constituency by way of correspondence. Numerous concerns were raised, and there was a litany of examples where complainants generally felt that there had been a failure to deal with them respectfully and that there had been a level of failure by DPTI to provide information.

Mr Deegan acknowledged that there was some delay in relation to the timeliness of some of the requests that were made, but frankly, otherwise—if one reads this report—he continued to defend what was the indefensible in relation to the treatment of a number of people in that space at that time. Unsurprisingly, this committee reported comprehensively on those concerns. Remember, this is covering an area of Main South Road in respect of proposed developments at that time, including the intersection of Port Road and South Road, way before we had started the Darlington project.

It covered a number of areas that were going to be interfered with either in construction or in the end by the infrastructure that was proposed. It is trite to say but, of course, had the administration under Mr Bannon sold off all this land that had previously been compulsorily acquired under the MATS scheme, then of course we would not have had to go through any of this trauma. That corridor would have been built and it would have been operational. Nevertheless, we are stuck with that and that progressed.

I urge the member for West Torrens to look at this report because it outlines in considerable detail why we are here. I am a bit surprised that he has not read it. If I look at page 39, it refers to a complaint by Rita Papillo, for example. She raised her complaints. She also said, and it is reported here:

She had also been assured at a public meeting on 15 June 2013 by the then Minister that her solar panels would be relocated and her current rebate that expired on 2028 would be retained. Despite promises of assistance and repeated assurances from many DPTI staff and the Minister himself, DPTI finally advised that she was responsible for the relocation of her personal fixed items. It fell to her to organise builders and contractors and, although she forwarded quotes as instructed, none of the costs of relocating these items were compensated.

Guess who was the minister at the time? The member for West Torrens. Can you believe that? He was the minister responsible for this department, as dysfunctional as it is reported here to have been, from January 2013, I think, until after the 2014 election. I urge him to refresh his memory about why we are here, because the reality is that, as a new government, we have picked up these six recommendations for legislative reform. We have adopted them all and they are in this bill.

We have considered other matters that have been raised by the departments, as identified, and we are proposing an area of reform to make sure that we can finish this project through the Main South Road redevelopment. It is going to ultimately save something like 80-plus stoplights and will provide a clear avenue for traffic and the opportunity for traffic to join in from the Adelaide Hills at a lower, more southerly point to access Port Adelaide.

All these things are good things, but we need to be clear about how badly it has been done before and listen to what is in this report and accept these recommendations. That is exactly what we are doing and that is why we are here. In the course of that, we have had brought to our attention that tunnelling, if that is to be an option, may raise some risk as to the capacity to acquire and therefore has raised what we need to do to amend the legislation to deal with that.

Members might be aware that the previous government had put a tunnel through the East Parklands, but that did not really require compulsory acquisition because it was under a roadway already managed by the Crown and under the Parklands. Although they had some principled duties in respect of Parklands law—which they promptly seemed to ignore—they nevertheless were not required to compulsorily acquire someone else's property for the purposes of that tunnel exercise.

Going back a bit further, the Heysen Tunnels—some of the members of the house would remember when they were built—were also developed in a location where almost all the total tunnel area was on Crown land and there were no surrounding houses or private properties necessary to acquire for the purposes of that exercise. So tunnelling is not new to Adelaide. It is not common, and I think the Minister for Transport outlined some of the physical features of the Adelaide Plains that over the years have made it more difficult to actually have tunnelling.

Perhaps that is one of the reasons we do not have underground trains and other services that are common in other cities. Our soil profile and our underground water channels, etc., caused some challenges for previous people, from the colony through statehood, so we do not have that level of underground construction and/or access. Some members might be aware that we have a few tunnels running between public houses in this state and that they existed for general security and access in the past. Some of them still exist. I think that if anyone wants to hear about them they can contact the historical societies or the National Trust to be apprised of that.

This is relatively underutilised as a medium by which a transport corridor is provided, and we need to do this if we are going to give effect to exactly what other members have asked; that is, what do we do when a building or a structure or a precinct is of such precious value that we need to ensure that it be protected? I do not think there was anybody at the time who came to us or to the previous government to say that we needed to save the power box that sat on the corner of South Road and Port Road. It was not of such important historical benefit to the state, but it provided a utility and it was going to be very expensive to move, so there was a redesign of that intersection to go around that particular feature.

Sometimes it is not just for historical reasons; it is because the cost of relocation or disruption to a particular service would be massive. They are the things that have to be weighed up, and they are things that, understandably, the Minister for Transport will need to consider when he seeks approval to progress some of these major projects.

Underground tunnelling is an option if we are going to save Thebarton Theatre. I think the member for West Torrens also raised one of the churches that had been of importance to him, the Queen of Angels Church on South Road. It is a beautiful site. In fact, one of my aunts was buried there. She probably lived in the member for West Torrens' electorate. She lived at 10A Bennett Street, Thebarton, before she died, and we had her service at that church. It is a magnificent church.

I think there will be landmarks along the corridor for which the public have an affection and a desire to preserve and protect. We have already heard publicly of those who are keen to ensure that Thebarton Theatre is not affected. We have heard from the member for Badcoe of areas in her electorate that are seeking to have some security or some relief in whatever designs are ultimately finalised for the completion of the north-south corridor.

We will certainly as a government be looking to ensure that we have the most effective, as soon as practicable, completion of the north-south corridor. It is an expensive exercise. It will continue to be an expensive exercise. Where tunnelling is ultimately determined as being an option, that will be a matter the passage of this bill will make provision for and ensure, along with all of the other initiatives in the bill, that there is an increased protection for the person who is having their property compulsorily acquired.

I turn briefly now to the member for West Torrens' questions in relation to a number of clauses. I am hoping this will comprehensively cover his inquiry but, if not, I am sure in the committee he will ask me further. I am just going to outline them as follows. Clause 6, amending section 10 of the act, relates to notice of intention to acquire. The amendments provide that an amended NOI need not be given in the same way as the first notice. Proposed section 10(4) specifically provides that an amended NOI can be given if the authority intends to change the boundaries of the land it intends to acquire.

The government's amendment allows the second NOI to be given in a different way. Typically, this may occur because a person has engaged legal representation, and the correspondence should be directed to the representative, or perhaps the landowner prefers a different method of communication. The second part of that amendment means that the process does not start again in terms of timeliness, so the clock keeps running on the matter, and the second, corrected NOI does not start the whole process again.

In relation to clause 8 and the review by SACAT, we were advised by both SACAT and the Crown Solicitor's Office that the 14-day time frame in this section is too short and that both those parties had concerns about being able to meet such a short time frame, and so the section has been amended to extend the time frame to 21 days.

As to clause 9, again, this is an amendment very similar to that in clause 6 and allows the NOA to be given in a different way to the initial NOI. Once again, typically this will happen where a party has engaged legal representation since the NOI was issued.

In relation to clause 10, the notice referred to is the NOA. This amendment allows an NOA to be issued not less than three months after the first occasion on which an NOI was issued for that interest. To explain by way of example, if there is a landlord with three tenants the authority knows about and one tenant who is for some reason unknown to the authority, the authority issues NOIs to the landlord and the three known tenants. Three months pass and the authority discovers the fourth tenant and issues their NOI. The authority wants to issue the NOAs as three months have passed since the first NOIs were issued but it cannot because it has to wait until three months has passed since the last NOI was given to that fourth tenant.

The amendment means that the landlord and the first three tenants can be issued with their NOAs without waiting for the three-month period from the last NOI. The fourth tenant will get the three-month notice period to be issued with their NOA, and it means that the authority can move forward on acquiring the other interests.

Clause 12 has also been raised by the member for West Torrens. This clause proposes to amend section 22B of the act to clarify that an interest in land must be able to be alienated and vested in the authority to be able to be acquired and compensated. Native title rights cannot be vested in an authority. They are not alienable and so are an exception to that definition. Native title rights are still compensable rights if acquired under the act.

In respect of clause 13, the definition of negotiation is the ordinary meaning: it is the process of settling the offer of compensation a person is entitled to under the act. Also to clarify, the member for West Torrens mentioned that he did not think it appropriate to require a party to negotiate in good faith where the government is paying no compensation for an underground acquisition.

However, there is no negotiation in an underground acquisition because there is no compensation payable, and so the good faith requirement does not apply. Part 4A specifically disapplies that division of the act to underground acquisitions. Again, I remind the member for West Torrens that a specific recommendation of the select committee was that the duty to act in good faith be put in legislative form, and that is precisely what we are doing.

In relation to clause 14, amending section 23A, the authority will typically not be able to determine an offer of compensation in the required time frame in the case of the acquisition of a business, because determining the market value of a business is a complex undertaking requiring the complainant to provide extensive business records and other materials. This means that quantifying the value of the business does take a longer period of time.

It is not uncommon for an offer of compensation to be increased by the authority, perhaps because an additional valuation is undertaken or new information is provided. The amendments allow the additional money to be paid either to the court or directly to the claimant if they have already taken the money out of court. It is less common for offers to be varied downwards, and this would generally occur if the landlord has concealed or not provided significant information that greatly affects the value of a property. As a safeguard for claimants, the authority will be required to seek a court order to do so. The authority will still be covering the legal fees for the complainant in that matter as it is all part of the same acquisition proceedings.

In section 23AB, the six-month period that a claimant has to respond to an offer of compensation is a time frame that is intended to allow a claimant to seek legal advice, but is not so long as to hold up the matter for an extended period. The settlement conference process is outlined in the section. The authority appoints the conference coordinator and pays the cost of the conference. The qualifications of the coordinator will be prescribed in the regulations, but I can confirm that they will be required to have professional accreditation. The conference has been made compulsory to try to resolve as many disputes as possible without the stress of Supreme Court proceedings.

I will interrupt myself here to say that obviously new rules are also being prepared for the Supreme Court. The concept of having mandatory conferencing is not unique to courts, but we are ahead of the game in this regard. Again, this is an area where there is a relationship between the acquirer, which is largely the government, and individuals and/or companies or entities that own individual pieces of property. The power imbalance is obvious. The entitlement to acquire is quite extensive; it always has been.

I have looked back at legislation since 1925 in relation to compulsory acquisition of land. This is not a new phenomenon. It is something that is there for the general good of the public, to provide them with infrastructure investment and services. It is nothing new, but I make the point. We need to recognise that it was identified in the report as a factor that needed to be considered, and that is exactly what we are doing.

The conference has been made compulsory to try to resolve as many disputes as possible without the stress of Supreme Court proceedings. It is generally better for all parties not to have to go through a formal court process in terms of time, cost and the emotional toll it can take on parties. I hope members are comforted to some degree by the fact that even under our current court system there are a significant number of cases that, even once they have issued proceedings, do resolve by agreement.

The solatium payment is a lump sum based on market value, as determined during the evaluation process. The authority cannot arbitrarily reduce it. It will be either 10 per cent of the market value or $50,000, whichever is the lesser. In section 26A, regarding the payments made directly to the claimants, the prescribed amount will be $10,000. This will be mainly to allow payments to be made to tenants, who receive small amounts of compensation, as fast as possible to allow them to find a new place to live.

In relation to part 4A, I flag that there is a government amendment to be dealt with in the committee stage. Consultation submissions from the Australian Property Institute did not indicate any particular issues with the proposed amendments aside from inquiring if they were consistent with interstate acts. I am advised that no response was received from the Real Estate Institute of South Australia.

I am also advised that we will be able to provide further information about any impact on property values, since interstate, between the houses as well as any other information that was asked for. As the member for Badcoe is listening with interest to this debate, there were some issues she raised and, as I have indicated, we are following those up along with some other matters that have been raised.

I hope that covers the matters that were sought by the member for West Torrens. If there are other matters, doubtless he will put them to me in committee.