Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board) Amendment Bill

TUESDAY 30 MAY 2017

Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board)
Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 May 2017.)

The Hon. T.J. STEPHENS ( 17:06 :18 ): I rise to speak to the Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board) Amendment Bill, introduced and read for the first time on 10 May. From the outset I will say that the opposition supports the second reading of this bill. My understanding is that there will be a number of crossbench amendments which I will address at the appropriate time on behalf of the opposition once we have had a chance to consider their merit.

This bill seeks to remove the sunset clause added to the power given to the minister under section 130 of the APY Land Rights Act. The sunset clause was added as a compromise to alleviate opposition and crossbench concerns regarding these powers when they were rushed through this place in December 2014. The three-year sunset period is set to expire in December of this year, which is the reason why we are debating this legislation here today. From my experience as a member of the Aboriginal Lands Parliamentary Standing Committee and from what I have seen and heard over the years, I can say with confidence that what most of us in this place would term good governance is often found wanting on the lands. For too long we accepted it as part and parcel of life in these remote communities, as disappointing as it was.

However, we have seen in recent times an up tick in financial accounting practices and, in some ways, the good conduct of local government on the lands which I believe is attributable to this power that the minister has under the act. On many occasions, I am certain that the threat of suspension has ensured that standards are kept and targets are met when in the past they have not been. Let us not forget that the general manager's position was a revolving door and not in any small part as a result of bullying. It appears that stability has returned. As a result, the opposition supports the codified permanency of this power.

That is not to say that the opposition is happy to see unchecked executive power. In fact, one of the chief reasons for the opposition supporting a sunset clause originally was that we had a lack of confidence in the minister at the time to properly administer his portfolio—indeed, neither did the vast majority of members in this place. As an opposition, we trust that the current minister will use his power sparingly and only when absolutely necessary. However, of course, it goes without saying that there are systemic issues with governance on the lands and many times over the years I have implored the minister to appoint an administrator when the situation has become disgraceful and clearly detrimental to Anangu.

If we do not act on this legislation now the power will lapse and I have been advised that a return to the previous legislative power would not have the same persuasive effects as it limits the minister's ability to act to a very strict set of circumstances which is far too prohibitive. We, in this place, should be encouraging the timely remedy of governance issues on the lands and, therefore, I commend the bill to the council.

The Hon. T.A. FRANKS ( 17:09 :19 ): I rise on behalf of the Greens to give our position on the Anangu Pitjantjatjara Yankunytjatjara Land Rights (Suspension of Executive Board) Amendment Bill. It will come as no surprise to the minister and, indeed, to the chamber that the Greens will be opposing this bill. Indeed, when this debate first took place—almost three years ago now, as the Hon. Terry Stephens has just noted—the Greens sought to introduce a sunset clause to this piece of legislation in terms of the overall act.

At the time, I moved an amendment to introduce a sunset clause of some 12 months. The government amended that amendment to make it three years, and that three years, of course, expires at the end of this year. It should come as no surprise that, having opposed the original provision which gave the minister the ability to suspend the Executive Board and appoint an administrator—not for specified reasons, not for codified reasons as previously existed, but for any reason that the minister saw fit—the Greens do not regard it as an example of good governance. We expect good governance from the APY Executive but we also expect good governance from the ministers of this state government.

The minister should have to provide reasons. The minister should have to follow due process. That seems to be not just a natural justice provision but a good governance provision. The Greens saw no reason for the introduction of these unfettered powers of the minister in the first place. It would have been a simple process for the previous minister to have followed the codified process, to have written to the board, but that previous minister, minister Hunter, not only had not visited the lands for a period of some 14 months—a fact only revealed in the debate of the predecessor of this particular bill—but had not bothered to write in the appropriate form to the APY Executive Board giving them directions, as he was required to do under the act as it previously stood.

A minister who cannot be bothered to write a letter in the appropriate form is given the ability now, under the new form of the act, to dismiss an executive board for any reason he or she sees fit. If only the people of South Australia had such an ability—but no, they only have every four years at the ballot box to have such a say. I reiterate that the Greens opposed the introduction of this provision, a provision introduced to support a lazy, uninterested minister of the time and it is disappointing to see that a minister who has shown more interest and more expertise in this portfolio seeks to continue this provision, which was designed to support a lazy, uninterested minister.

The Greens will be opposing this bill. I note that the Hon. John Darley has an amendment to extend the sunset period for a further five years. I note that, in the original debate on this bill, we had already introduced a sunset clause. The Greens would have set it at 12 months. The government and the opposition, in support of them, agreed on three years. This amendment will actually make it an eight-year sunset clause. An eight-year sunset clause on a piece of legislation that was rushed through the parliament, that was not required, that simply reflected a minister too lazy and too uninterested to do his job, seems quite ludicrous. Again, the Greens alert the chamber to our concerns on this issue.

What I am interested in is that the bill seeks to amend an act that is, of course, about the governance of the APY lands. When we talk about bad governance of the APY lands, we have to look no further than the recent chronic situation in Mintabie. As members may be well aware, the Federal Court has found the practices of a Mintabie store that drained almost $1 million from the bank accounts of local Anangu unconscionable. This book-up practice that has been used by Nobby's Mintabie General Store is a common form of informal credit used in the lands.

It is effectively running a tab in order to sell the basics—groceries and essentials. Stores sometimes keep those customers' bank cards, those Anangu people who are in fact some of the most vulnerable and marginalised and poor in our nation, and the shop takes out the money themselves. In a statement issued in November 2016, the Australian Securities and Investments Commission said that store owner Lindsay Gordon Kobelt's practices were 'exploitative' and that he used the credit system to control his customers and what they bought and to bind them to him and his store. He also charged a fee for this service. It is like a mugger leaving you a tip.

Consumers were required to provide their debit cards, PINs and details of their income to Mr Kobelt, who then used this information and cards to withdraw all or nearly all of a customer's money from their bank account on or around the day they were paid. He had been doing it since at least 2008 and, over a period of about 18 months, had withdrawn some $984,147.90 from 85 customers' accounts.

On one particular day, Mr Kobelt withdrew $56,944 from some of his customers' accounts, despite having no authority to do so, due to a bank glitch which allowed withdrawals despite insufficient funds being available, according to a statement by ASIC. The Federal Court found that Mr Kobelt's book-up practices tied his customers to him, leaving them with little practical alternative but to continue shopping at Nobby's, The court found:

The combined effect of Mr Kobelt taking possession of the customers' key cards, and using them on the first day of the pay periods, was to deprive these customers—

these Anangu people—

of independent means of obtaining the necessities of life.

Transactions were mostly undocumented, so customers could not effectively check that the amounts he was withdrawing were matched to what they spent.

In a landmark decision, ASIC has said that it would now ensure that other providers did not exploit vulnerable customers, and a directions hearing listed for 25 November found that the court could fine individuals up to $340,000 for such a breach. I have to concur with the federal Minister for Indigenous Affairs, Nigel Scullion, who said that book-up was an insidious practice that targets some of the most vulnerable people in Australia, causing great harm to individuals and communities. Yet, of course, these practices happened on the lands governed by this act.

Under division 4 of the act, it is not the Minister for Aboriginal Affairs and Reconciliation but the minister for mining who is responsible for the lease for Mintabie. Where is the due diligence of minister Koutsantonis? Where is his good governance? Where are the behaviours we expect from the APY Executive from minister Koutsantonis? He has been twiddling his thumbs, while the people of Mintabie and the communities who used that Mintabie shop were being ripped off and bled dry. Again, there is a lack of interest from this government, albeit from a different minister. Where is the good governance being shown by the Weatherill government on that issue under this act?

That minister has been derelict in his duty to the people who use that Mintabie shop. The lease power that the state government holds through that minister, which was signed in 2012, years after the bad book-up practices were already known, has continued and will continue to 2027 without any interest being shown by that minister and, sadly, it is not addressed in this bill. It is not addressed in terms of control of the lease and to date has been largely ignored in the debate about good governance on APY lands.

My questions to the Minister for Aboriginal Affairs and Reconciliation as part of this bill are: given the recent elections under this act, what provision has been afforded to the new executive to ensure the good governance that this amendment bill before us requires? What training and what provision has been made available or will be made available? What budget amount will that run to?

Have any incidents come to the minister's attention that are so pressing that he feels the need to continue an approach where he does not even need to write a letter to give direction to the board, but he can suspend them for any reason he sees fit? Surely, the minister will be able to provide us with a litany of examples if we need to continue this retrograde piece of legislation. I look forward to hearing those examples from this government, which seeks to further restrict the self‑determination of Anangu people.

The Hon. J.A. DARLEY ( 17:20 :23 ): I rise very briefly to contribute to the second reading of the bill. The bill is very simple, in that it makes permanent the provision in the act which allows for the minister to suspend the APY Executive Board at any time they want. The minister does not need to provide a reason, nor does the suspension need to be as a result of any reviews into the Executive Board. This was a controversial provision of the 2014 bill, which was addressed by way of a sunset clause that saw the expiration of this clause three years after the clause came into operation.

The minister advises that this clause was needed in 2014 due to the concerns about the previous executive. Although there have recently been elections and a new Executive Board appointed, the minister believes that such provisions are still necessary to ensure the executive performs properly. This indicates that the minister may not have faith in the new executive and needs to have a big stick at the ready just in case things go wrong. I have great reservations about giving this sort of power to a minister to use entirely at their discretion. I am unaware of any other minister in this parliament who would have such broad powers to dismiss an elected body without any checks or balances, and would be grateful if the minister could advise if there are any in existence.

There is no avenue for appeal outlined and, as I said before, no reasons need to be provided for suspension. Given my reservations, I have filed amendments which would subject this clause to a five-year sunset clause. I would be grateful for the government's position on this amendment during the second reading, because without such a safeguard on such broad powers I will be unable to support the second reading.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) ( 17:22 :11 ): I would like to thank all members for their contributions on this matter. In summing up, I might respond to a number of questions that have been raised about whether this power is necessary, given we have had recent elections. Certainly, as members have indicated, I think there was a level of dysfunction with the APY Executive a couple of years ago that was unacceptable.

The power to appoint an administrator, as it currently stands in the act, is one that I think certainly has helped with creating a more functional, more accountable and more transparent executive in the APY lands and has allowed the administration to make reforms without having the threat of an executive continually sacking general managers, as we have seen in the past.

In relation to a couple of comments that have been made by recent speakers: do I think that this will need to be exercised imminently with the new executive? My answer to that is no, I do not. I have had an opportunity to spend some time with many members of the newly elected executive and quite some time with the new chair and deputy chair of the new executive, and I am very optimistic that the functionality that we have seen growing will continue and will increase under the current executive.

That does not mean that we should plan for the best case scenario. Given what we have experienced on occasion in governance on the APY lands, I think that a power that looks to 'if it goes wrong' needs to be retained, but I am optimistic about the newly elected executive. I am quite certain that we will see further reforms, further accountability and further transparency, and that, particularly with the recent elections and the soon to be held supplementary elections, we will see an equal number of women represented on the executive.

I think the newly elected executive shows that the new representation will be a step forward. We have a senior man in Mr Frank Young, who has been elected by the executive as chair, and we have seen a very capable young woman in Ms Sally Scales elected as the deputy chair. I have confidence and optimism. I have no reason to think that this power will need to be enacted any time in the near future. I believe some of the advances we have made have been as a result of this power being in the act.

In relation to training for governance on the APY lands, I know at the executive meeting last month that there was governance training provided to the APY Executive. I am happy to come back in the next day or two at clause 1 to give exact details of the governance training. I think it was legal training on the roles and responsibilities of elected members of the executive that was provided last month on the newly elected executive. I am happy to come back to give further and better details on exactly what training was provided. I look forward to the swift passage of this legislation and taking questions during the committee stage later this week.

Bill read a second time.

 

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