No. 23

 

                                                     VOTES AND PROCEEDINGS

 

                                                                      OF THE

 

                                                         HOUSE OF ASSEMBLY

 

                                                                                                                                  ____________

 

 

                                                                      WEDNESDAY 2 NOVEMBER 1994

 

 

 1         Meeting of House

                  The House met pursuant to adjournment.  The Speaker (Hon. G.M. Gunn) took the Chair and read prayers.

 

 2        Petitions Nos 86 and 87

                  The Clerk announced that the following Members had lodged Petitions for presentation:

 

                  86  Mr Evans, from 13 residents of South Australia, requesting that the House urge the Government not to allow general Sunday trading where restrictions currently apply.

 

                  87  Mr Evans, from 45 residents of South Australia, requesting that the House urge the Government to provide a shop front community Police Station within the Blackwood shopping centre and increase the number of police within the Blackwood area.

 

 3        Answer to a question

                  An answer to question on the Notice Paper No. 56 was tabled by the Speaker.

 

 4         Environment, Resources and Development Committee Report - MFP Development Corporation

                  Mrs Kotz brought up the Fourteenth Report of the Committee relating to Environmental, Resources, Planning, Land Use, Transportation and Development aspects of the MFP Development Corporation for 1993-94.

                  Report received.

                  Ordered to be printed (Paper No.181)

 

5         Questions

                  Questions without notice were asked.

                  Ordered - That the period for asking questions without notice be extended by five minutes.

                  Questions without notice resumed.

 

6         Paper

                  The following Paper was tabled:

 

                  By the Minister for Industry, Manufacturing Small Business and Regional Development             (Hon. J.W. Olsen) -

                              Ministerial Statement - Trans Adelaide Bus Services.

 

7          Grievance debate

                  The Speaker proposed - That the House note grievances.

                  Debate ensued.

                  Question put and passed.


8         Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            Consent to Medical Treatment and Palliative Care Bill                                                   Message No. 31

                  MR SPEAKER - The Legislative Council has passed the Bill transmitted herewith, titled an Act to deal with consent to medical treatment; to regulate medical practice so far as it affects the care of people who are dying; to repeal the Natural Death Act 1983 and the Consent to Medical and Dental Procedures Act 1985; to amend the Guardianship and Administration Act 1993 and the Mental Health Act  1993; and for other purposes, to which it desires the concurrence of the House of Assembly.

                  Legislative Council, 1 November 1994                                                                                                   H.P.K. Dunn, PRESIDENT

 

                  Bill read a first time.

                  Ordered - That the second reading be an Order of the Day for tomorrow.

 

9         Public Sector Management Bill

                  The Premier (Hon. D.C. Brown), pursuant to notice, moved - That he have leave to introduce a Bill for an Act to make provision for the Public Service of the State and its management and for certain general public sector management matters.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  The Premier moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until tomorrow.

 

10       Postponement of business

                  Ordered - That Notice of Motion (Government Business) No. 2 be a Notice of Motion for tomorrow.

 

11        Consumer Credit (Credit Providers) Amendment Bill

                  Order of the Day read for the second reading of this Bill.

                  The Deputy Premier (Hon. S.J. Baker) moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until tomorrow.

 

12       Motor Vehicles (Conditional Registration) Amendment Bill

                  Order of the Day read for the second reading of this Bill.

                  The Minister for Industry, Manufacturing, Small Business and Regional Development (Hon. J.W. Olsen) moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until tomorrow.

 

13       Second-hand Vehicle Dealers Bill

                  Order of the Day read for the second reading of this Bill.

                  The Deputy Premier moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until tomorrow.

 

14       Mining (Native Title) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                                                                                                                In Committee

                                                                                                Clauses Nos 1 and 2 agreed to.

                                                                                                Clause No. 3 read.

                  Mr Clarke moved on page 1, after line 17 to insert new definition as follows:

            "Aboriginal owner"of land means -

                              (a)           a person who holds native title in the land; or

                              (b)           a trustee for the holders of native title in the land; or

 

 

                              (c)           a company of which the only shareholders are persons who hold native title in the land;

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clauses Nos 4 to 26 agreed to.

                                                                                                New clause 26A.

                  Mr Clarke moved  on page 11, after line 8 to insert new clause 26A as follows:

            26A Amendment of s. 61 - Compensation. Section 61 of the principal Act is amended -

                              (a)     by striking out subsection (1) and substituting the following subsection:

                                          (1)      The owner of land on which mining operations are carried out under this Act is entitled to compensation from the mining operator for economic loss, disturbance, hardship and inconvenience resulting from the operations.;

                                                      (b)     by striking out subsection (3) and substituting the following subsection:

                                                                  (3)     The amount of the compensation is to be decided by agreement between the owner and the mining operator or, in default of agreement, to be determined (on application by an interested party) by the appropriate court.1

 

                                    1           The compensation to which an Aboriginal owner is entitled is to be determined by the ERD Court. (See section 5 of the Native Title (South Australia) Act 1994.)

                  Question put and negatived.

                                                                                                Clauses Nos 27 and 28 agreed to.

                                                                                                Clause No. 29 read.

                  Mr Clarke moved on page 11, lines 21 to 34 and page 12, lines 1 to 8 to leave out these lines and insert in lieu thereof the following:

            63F. Mining operations and native title land. A prospecting authority confers no right to carry out mining operations on native title land and a mining tenement over native title land may not be granted or registered unless -

                              (a)     the mining operator is authorised by a native title agreement or determination registered under Division 3 to carry out mining operations on the land; or

                              (b)     a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title.1

                                                           

                                    1           A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of the declaration is that the land ceases to be native title land.

                  Question put.


                  Committee divided (No.1):

 

                                          Ayes, 9.

 

                              Mr Atkinson

                              Hon. F.T. Blevins

                              Mr De Laine

                              Mr Foley

                              Mrs Geraghty

                              Ms Hurley

                              Mr Quirke

                              Ms Stevens

                              Mr Clarke (Teller)

                  Noes, 33.

 

Mr Andrew

Mr Ashenden

Hon. D.S. Baker

Mr Bass

Mr Becker

Mr Brindal

Mr Brokenshire

Mr Buckby

Mr Caudell

Mr Condous

Mr Cummins

Mr Evans

Mrs Greig

Hon. G.M. Gunn

Ms Hall

Hon. G.A. Ingerson

Mr Kerin

Mrs Kotz

Mr Leggett

Mr Lewis

Hon. W.A. Matthew

Mr Meier

Hon. J.W. Olsen

Hon. J.K.G. Oswald

Ms Penfold

Mrs Rosenberg

Mr Rossi

Mr Scalzi

Hon. R.B. Such

Mr Venning

Mr Wade

Hon. D.C. Wotton

Hon. S.J. Baker(Teller)

 

 

                  So it passed in the negative.

                 

                  Mr Clarke moved on page 12, lines 9 to 20 to leave out these lines and insert in lieu thereof the following:

            63G. Protection for applicants for mining tenements over native title land. (1) If a person makes a genuine application for the grant or registration of a mining tenement over native title land, no other mining tenement may be granted over the same land for minerals of the same kind.

                  (2)     However, the Minister may dismiss an application to which subsection (1) applies if it appears that the mining operator is not proceeding with due diligence to obtain the necessary native title agreement or determination to authorise mining operations on the land.

                  Question put and negatived.

                  Mr Clarke moved on page 12, after line 24 to insert new subsection as follows:

                  (2)     However, an application cannot be made if -

                              (a)     the land is subject to a declaration under the law of the State or the Commonwealth to the effect that the land is subject to native title; or

                              (b)     an application for a native title declaration has already been made under the law of the State or the Commonwealth, and the application has not yet been determined.

                  Question put and negatived.

                  Mr Clarke moved on page 12, lines 27 to 37 to leave out these lines and insert in lieu thereof the following:

            63I.  Negotiation of native title agreement. (1) A person (the "proponent") who -

                  (a)     is an applicant for the grant or registration of a mining tenement over native title land; or


                  (b)     holds a prospecting authority and wants to explore for minerals on native title land;

                  may negotiate an agreement with the relevant native title parties authorising the proponent to enter the land and carry out mining operations on the land.

 

                  (2)     The native title parties with whom the proponent is required to negotiate are those who are registered under the law of the Commonwealth or the States as holders of, or claimants to, native title in the land or any part of the land two months after notice is given under this Division to all who hold native title in the land.1

                  (3)     If the proponent is an applicant for a mining tenement (rather than a person who merely holds a prospecting authority) and the agreement is negotiated with persons who are registered under the laws of the State or the Commonwealth as the holders of native title in the land, the agreement is not necessarily limited to mining operations of the kind contemplated by the mining tenement for which the proponent has applied, but may extend also to future mining tenements.

 

                                    1           For method of service see part 5  Native Title (South Australia) Act 1994.

                  Question put and negatived.

                  Mr Clarke moved on page 13, lines 22 to 24 leave out these lines and insert in lieu thereof the following subsection:

                              (4)     A determination under this section -

                                          (a)     may only authorise the proponent to carry out mining operations under a prospecting authority that the proponent currently holds or under a mining tenement for which the proponent has applied; and

                                          (b)     if the proponent is an applicant for the grant or registration of a mining tenement in respect of the land - has no effect until the tenement is granted or registered.

                  Question put and negatived.

                  Mr Clarke moved on page 14, after line 13 to insert new subsection as follows:

                  (4)     A determination under this section -

                              (a)     may only authorise the proponent to carry out mining operations under a prospecting authority that the proponent currently holds or under a mining tenement for which the proponent has applied; and

                              (b)     if the proponent is an applicant for the grant or registration of a mining tenement in respect of the land - has no effect until the tenement is granted or registered.

                  Question put and negatived.

                  Mr Clarke moved on page 14, lines 15 to 17 to leave out these lines and insert in lieu thereof the following subsection:

                              (1)      The proponent must negotiate in good faith with native title parties with a view to obtaining their agreement to the conduct of the mining operations on the native title land.

                  Question put and negatived.

                  Mr Clarke moved on page 15, lines 2 to 4 to  leave out these lines  and  insert in lieu thereof the following paragraph:

                              (b)     if the Court considers it appropriate, order the registration of the agreement as originally negotiated or with amendments agreed by the parties.

                  Question put and negatived.

                  Mr Clarke moved on page 15,  after line 10 to insert new subsection as follows:

                              (7)      If native title parties were not represented in negotiations by the relevant representative Aboriginal body, the Court may, on application by that body, made within 3 months after the date of a native title declaration to the effect that land is subject to native title, exempt (wholly or partly) from the application of subsection (6) (a) any person or group of persons who -

                                          (a)     are recognised at common law as holders of native title in the land; but

                                          (b)     were not among the original parties to the agreement.

                  Question put and negatived.

                  Mr Clarke moved on page 15, lines 16 to 18 - leave out these lines and insert in lieu thereof the following paragraph:


                              (a)     if the proponent merely seeks authority to carry out exploratory operations under a prospecting authority currently held by the proponent, or if the proponent is an applicant for an exploration licence and seeks authority to carry out exploratory operations under the licence - four months from when the negotiations were initiated; or

                  Question put and negatived.

                  Mr Clarke moved on page 15, after line to insert new subsection as follows:

                  (1a)  The relevant representative Aboriginal body is entitled to be heard on an application under this section.

                  Question put and negatived.

                  Mr Clarke moved on page 15, lines 24 to 30 to leave out these lines and insert in lieu thereof the following subsection:

                  (3)     If the ERD Court determines that the mining operations may be conducted on native title land, the determination must deal with the notices to be given or other conditions to be met before the land is entered for the purposes of mining operations.

                  Question put and negatived.

                  Mr Clarke moved on page 15, after line 30 to insert new subsection as follows:

                  (3a) A determination under this section -

                                          (a)     may only authorise the proponent to carry out mining operations under a prospecting authority that the proponent currently holds or under a mining tenement for which the proponent has applied; and

                                          (b)     if the proponent is an applicant for the grant or registration of a mining tenement in respect of the land - has no effect until the tenement is granted or registered.

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clauses Nos 30 to 36 agreed to.

                                                                                                Title agreed to.

 

                                                                                                                        ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same without amendment.

 

                  Bill read a third time and passed.

 

15       Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            Pay-roll Tax (Superannuation Benefits and Rates) Amendment Bill                                    Message No. 32

                  MR SPEAKER -  The Legislative Council has agreed to the Bill returned herewith titled an Act to amend the Pay-roll Tax Act 1971, without any amendment.

                  Legislative Council, 2 November 1994                                                                                                  H.P.K. Dunn, PRESIDENT

 

16       Environment, Resources and Development Court (Native Title) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                                                                                                                In Committee

                                                                                                Clauses Nos 1 to 7 agreed to.

                                                                                                Clause No. 8 read.

                  Mr Clarke moved on page 3, line 15 to leave out paragraph (a).

                  Question put and negatived.


                                                                                                Clause agreed to.

                                                                                                Title agreed to.

                                                                                                                                                ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same without amendment.

 

                  Bill read a third time and passed.

 

17        Land Acquisition (Native Title) Amendment Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

 

                  Bill read a second time.

                                                                                                                In Committee

                                                                                                Clauses Nos 1 to 6 agreed to.

                                                                                                Clause No. 7 read.

                  Mr Clarke moved on page 3, lines 8 to 13 to leave out these lines and insert in lieu thereof the following subsection:

                  (2)     If the Authority proposes to acquire native title in land, the Authority must -

                              (a)           if there is a register representative of the native title holders - give notice of intention to acquire the land to the register representative and the relevant representative Aboriginal body; or

                              (b)           if there is no register representative of the native title holders - give notice of intention to acquire the land to all persons who hold, or may hold, native title in the land1 and give a copy of the notice to the Registrar of the ERD Court.

 

                                                            1                 For method of service see Native Title (South Australia) Act 1994.                   

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clause No. 8 read.

                  Mr Clarke moved on page 3, lines 24 to 28 to leave out these lines and insert in lieu thereof the following subsection:

                  (1)      A person who has an interest in the subject land1, or the relevant representative Aboriginal body for the land, may, within 30 days after notice of intention to acquire the land is given, require the Authority, by written notice -

                              (a)           to give an explanation of the reasons for acquisition of the land; and

                              (b)           to provide reasonable details of any statutory scheme in accordance with which the land is to be acquired.

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clause No. 10 agreed to.

                                                                                                Clause No. 9 amended and agreed to.

                                                                                                Clause No. 11 read.

                  Mr Clarke moved on page 6, lines 2 to 9 to leave out these lines and insert in lieu thereof the following subsection:

                              (3a)       However, the acquisition of land under this section is subject to the non-extinguishment principle so that the acquisition does not, in itself, extinguish native title in the land but native title is extinguished when the Authority, in giving effect to the purpose of the acquisition of the land, exercises rights obtained by the acquisition in a way that is wholly inconsistent with the continued existence, enjoyment or exercise of rights deriving from the native title.

 

                  Explanatory note -

                  The non-extinguishment principle is the principle set out in section 238 of the Native Title Act 1993 (Cwth.)

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clauses Nos 12 and 13 agreed to.

                                                                                                Clause No. 14 read.

                  Mr Clarke moved on page 7, lines 6 to 9 to leave out these lines and insert in lieu thereof the following section:

            18. Application of Division. This Division applies if an authority to acquire land for the purpose of conferring rights or interests on a person other than the Crown.

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clause No. 15 read.

                  Mr Clarke moved on page 10, after line 34 to insert new paragraph as follows:

                  (aa) by striking out paragraphs (a) and (b) and substituting the following paragraphs:

                                          (a)     the compensation must adequately compensate the claimant for loss (including future loss) resulting from the acquisition of the land;

                                          (b)     in assessing the loss under paragraph (a), consideration must be given to -

                                                      (i)      the actual value of the subject land; and

                                                      (ii)    loss attributable to severance, disturbance or injurious affection;

                  Question put and negatived.

                                                                                                Clause agreed to.

                                                                                                Clauses Nos 16 to 25 agreed to.

                                                                                                Title agreed to.

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same with amendments.

                  The Deputy Premier moved - That this Bill be now read a third time.

                  Debate ensued.

                  Question put and passed.

 

                  Bill read a third time and passed.

 

18       Adjournment

                  The Deputy Premier moved - That the House do now adjourn.

                  Debate ensued.

                  Question put and passed.

                  House adjourned at 9.09 p.m. until tomorrow at 10.30 a.m.

 

                                                                                                                                  ____________

 

 

                                                                 MOTIONS WHICH NOTICE WAS GIVEN

 

 

                  For Thursday 3 November 1994 

                    Notices of Motion: Government Business-

 

                  The Minister for Industrial Affairs to move - That he have leave to introduce a Bill for an Act toamend the Industrial and Employee Relations Act 1994.

 

                  The Minister for Industrial Affairs to move - That he have leave to introduce a Bill for an Act to amend the Shop Trading Hours Act 1977.

 

                  The Minister for Infrastructure to move - That he have leave to introduce a Bill for an Act to provide for the supply of electrical energy; to establish a corporation or corporations for that purpose; to repeal certain Acts; and for other purposes.

 

                  The Minister for the Environment and Natural Resources to move - That he have leave to introduce a Bill for an Act to provide for the establishment of a National Environment Protection Council; for related purposes; and to amend the Environment Protection Act 1993.

 

 

                  For Tuesday 15 November 1994

                    Notices of Motion: Government Business-

 

                  The Minister for Primary Industries to move - That he have leave to introduce a Bill for an Act to amend the Dog Fence Act 1946.

 

 

                  For Thursday 17 November 1994

                               Notice of Motion: Private Members Bills/Committees/Regulations-

 

                  Mrs Kotz to move - That the Fourteenth Report of the Environment, Resources and Development Committee (Environmental, Resources, Planning, Land Use, Transportation and Development Aspects of the MFP Corporation for 1993-94) be noted.

 

 

                                                                                                                                  ____________

 

 

                  Present during the day - All Members except Hon. M. H. Armitage.

 

                  The following Pairs were handed in at the Table during the days proceedings:

 

                  Division No. 1 -

                              Ayes - Hon M.D. Rann

                              Noes - Hon M. H. Armitage

 

 

 

 

 

 

                                                                                                                                                                                                                        G.M. Gunn

                                                                                                                                                SPEAKER

 

G.D. Mitchell

CLERK OF THE HOUSE OF ASSEMBLY