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Legislative
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| Sandra Kanck Deputy Leader Australian Democrats Member of the Legislative Council |
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Legislative
Council |
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| Sandra Kanck Deputy Leader Australian Democrats Member of the Legislative Council |
Parliament Index |
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In Committee.
Clauses 1 to 3 passed. Clause 4. The Hon. R.I. LUCAS: I move: Page 1, after line 19—Insert new paragraph as follows:Essentially, this is a technical amendment. It is necessary because the word `access' is used in some subsequent provisions of the Bill. It does not mean access to a network for the purposes of contributing electricity to or taking electricity from the network (see, for example, proposed new section 23(1)(i), (1)(ii) and (m)(ii)). Amendment carried.(a1)by striking out the definition of `access';
The Hon. SANDRA KANCK: I move:
Page 2, after line 2—Insert:What I am doing here is putting into effect what the Government says it will do. We have had this Bill before us for two days short of a year. The Minister's second reading explanation makes reference to an Electricity Supply Industry Ombudsman as, by the way, did the second reading explanation of the Independent Industry Regulator Bill. Yet, 12 months on, there is no sign of the Government introducing any specific legislation to give us this sort of protection. I will look at what the Government said in the second reading explanation, because I think these are laudable aims. With regard to the Electricity Supply Industry Ombudsman the Government said: . . . the Government is strongly committed to consumer protection. As a result, each transmission, distribution and retail licence will be required to include a condition that requires the licensee to participate in an Electricity Supply Industry Ombudsman scheme. While this scheme will be established and operated by industry, its terms and conditions must be approved by the Independent Industry Regulator. The Government expects that the ombudsman will provide a strong and independent voice for customers and that it will oversee the resolution of electricity consumer complaints in relation to, for example, the provision of electricity services, the administration of credit payment services and the disconnection of electricity supply.(ba)by inserting after the definition of `electricity officer' the following definition:
`Electricity Ombudsman' means the person holding or acting in the office of Electricity Supply Industry Ombudsman established under Part 3A;
The Bill requires the Independent Industry Regulator to liaise with the Electricity Supply Industry Ombudsman in performing its licensing functions.
That was the contention in the second reading explanation, but the only requirement that I can find in the Bill (page 3) is new section 6A, which provides: (2) In performing licensing functions under this Act, the Industry Regulator must liaise with the ombudsman appointed under the Electricity Supply Industry Ombudsman scheme in which electricity entities are required by licence condition to participate. That to me barely touches the sides of what was promised. A short time ago we dispensed with the Independent Industry Regulator Bill, and the second reading explanation to that Bill also referred to the Electricity Industry Ombudsman, as follows: The Independent Regulator will monitor and enforce compliance with minimum standards of service. This function will involve liaising with the Electricity Industry Ombudsman. The ombudsman scheme is itself an important feature of the restructured electricity industry. I stress that it is the Government saying that it is an important feature. It continues: It will be established and operated by industry, but in a form approved by the Independent Regulator. The first ombudsman will be appointed on the recommendation of the Minister. The ombudsman's functions could include investigating and facilitating the resolution of complaints and dealing with disconnection and security of deposit claims. The Government, in relation to the Bill we are dealing with and also the Independent Industry Regulator Bill, has said clearly that such a scheme is very important, but we have waited 12 months for it to come up with such a scheme and it is not there. As I said, the one very tiny reference to the ombudsman scheme in this Bill is very inadequate. It truly does not compare with what the Government itself promised. As I read both the Independent Industry Regulator Bill, which we have just passed, and this Bill, we will face a situation, if we do not take the bull by the horns now, of having no say in what finally gets up as an ombudsman scheme. I placed these amendments on file in March to redress this situation because I did not want to leave it entirely up to the Independent Industry Regulator to set up. I have used the Tasmanian system as a model and, in keeping with the accountability which the Democrats believe should be part of a privatised electricity industry, the ombudsman would be reporting directly to Parliament. If we do not take this opportunity now, unless the Government gives some indication that it will introduce legislation to set this up, we will pass by the opportunity and leave it in the hands of the Independent Industry Regulator—and I for one would not be happy with that. The Hon. R.I. LUCAS: The Government strongly opposes this provision. It is useful that we have this debate early, because it will be a test vote on pages and pages of amendments from the Hon. Sandra Kanck and we can resolve it, I guess, one way or another. It is a nonsense for the Hon. Sandra Kanck to in any way indicate that the Government has dallied in relation to the establishment of the Electricity Industry Ombudsman. It is a part of the new privatised industry. We do not yet have a privatised industry: we have not had it for the past 15 months. It was something the Government promised as part of its package of reforms upon the successful passage of the restructuring Bill, which went through the Parliament last month. So this sort of nonsense from the honourable member that the Government has been dallying and that she had to take action to implement this scheme is misleading in the extreme.The Hon. NICK XENOPHON: I indicate my support for the Hon. Sandra Kanck's amendment. An important principle is at stake. The Electricity Ombudsman ought to have statutory teeth. As the Hon. Paul Holloway has indicated, it is important that we understand that, once this industry is in private hands, in many respects we will be very much in the hands of the industry and its goodwill in funding the scheme. If it is funded by the industry, it will be analogous to the Gamblers' Rehabilitation Fund, but that in itself raises all sorts of issues of independence and the ability of the GRF to act fearlessly on a number of issues.
Without statutory teeth I am concerned that this will not benefit consumers as it ought to. I understand the Treasurer's view that he wants to maximise returns and for the industry to have a good investment environment, but the fact is that this should be about consumers having adequate protection, about a framework that delivers benefits to consumers, which is the very reason why we got involved in the electricity market in the first place. I would have thought that those concerns were paramount—the concerns of consumers—and that the regime recommended by the Hon. Sandra Kanck through a statutory ombudsman scheme is the best way of achieving that.
The Hon. R.I. LUCAS: I want to reaffirm one or two comments in response to the comments of the Hon. Mr Holloway on this provision and the Hon. Mr Xenophon. I repeat: the Government is absolutely committed to ensuring a fair regulatory environment for consumers in South Australia. The Government indicates that, through its commitment to the Electricity Ombudsman scheme, it is not something the Government is saying it is thinking about, as I think was the inference of the Hon. Mr Holloway. Through the provision in this Bill and through the licensing provisions with the new operators of our businesses the Government will be quite explicit. There will be an ombudsman scheme; and it will be funded by the industry so that we the taxpayers do not have to pay for it, as we are likely to have to do with the statutory ombudsman. The Hon. Sandra Kanck: When will we see the paper work?The Hon. R.I. LUCAS: When the Independent Industry Regulator approves it.
The Hon. SANDRA KANCK: I am disappointed in both the Government and SA First and the Hon. Trevor Crothers for the position they are taking on this. The Treasurer is correct that this is an ombudsman scheme that has a statutory basis: that is exactly why I put it in there, so that we have something with a statutory basis. What the Treasurer is offering as an alternative is something which will appear six months down the track and in which we have no say.
The Hon. Ron Roberts spent some time comparing the current system to what we might have put in place, answering the assertions of the Treasurer that we really do not have much in the way of protection at the present time. Apart from recourse to the ombudsman currently—that is, the South Australian Ombudsman—there have been other ways that people could obtain action. For instance, people could come to their member of Parliament and a matter could be raised in Parliament if they found that things were really difficult. But the reality is that we had an electricity industry that was there to provide the best that it could for the people of South Australia.
We will not have that any more. We will have an electricity industry that is there for the benefit of its shareholders, and that always puts the consumer in a compromised and less powerful position. As I noted when I moved my amendment, this is based largely on the Tasmanian Act. I understand that a delegation of Tasmania MPs went across to Victoria to look at the Victorian scheme, decided that it was not applicable for them and went back and introduced their own Electricity Ombudsman Bill 1998.
The Treasurer was claiming that the system he wants to see in place will be a more balanced one than this. I find it difficult to see that a situation in which individual consumers are up against multinationals can ever be a balanced one. The multinationals will always start with more power than any ordinary householder, for instance. That alone is a good argument for having a statutory based Electricity Ombudsman scheme. As I interpreted what the Treasurer had to say, he was wanting to ensure that there would be no impediment to these companies. I find it difficult to see why one has to make it easier for them to come in and take us over. They are going to do it anyhow, it seems, and I certainly do not want to bend over backwards for them.
When I asked the Treasurer when we would see the paperwork, he said that it would be coming out when the Independent Industry Regulator had consulted with industry. So, we are talking about at least six months down the track. I think that we are talking about six months before we have an Independent Industry Regulator, and then he will consult with industry. Nowhere in that is there consultation with consumers. We are going to get an Electricity Ombudsman scheme that reflects what industry thinks we should have. Where does the consumer come in that? What I am offering with this amendment is a statutory based ombudsman scheme. It is all set out, it is very clear and it gives real certainty to industry. They know exactly what they are entering into. Instead of that, the Treasurer offers us something which we do not yet have and which we do not know anything about, and I do not understand why he wants us to accept second best.The Committee divided on the amendment:
AYES (9)
Elliott, M. J. Gilfillan, I.
Holloway, P. Kanck, S. M. (teller)
Pickles, C. A. Roberts, R. R.
AYES (cont.)
Weatherill, G. Xenophon, N.
Zollo, C.
NOES (10)
Cameron, T. G. Crothers, T.
Davis, L. H. Griffin, K. T.
Laidlaw, D. V. Lawson, R. D.
Lucas, R. I. (teller) Redford, A. J.
Schaefer, C. V. Stefani, J. F.
PAIR(S) Pairs
Roberts, T. G. Dawkins, J. S. L.
Majority of 1 for the Noes. Amendment thus negatived.(2) The regulations may not exclude or vary the operation of the provisions of the Public Corporations Act 1993 relating to—
The Electricity Supply Industry Planning Council will be a very important body in the brave new world of electricity restructuring that we now have. One could expect that the Public Corporations Act might apply to that body, but it is important to understand the clause. New section 6D (Division 2) provides: The Planning Council is a statutory corporation to which the provisions of the Public Corporations Act 1993 apply— and then there is this very significant rider— subject to any exceptions prescribed by regulation. I am very concerned about what some of the exceptions might be. As a consequence I have moved this amendment so that it specifically prevents the Government's exempting the Electricity Supply Industry Planning Council's having to comply with the Public Corporations Act in regard to the provision of annual reports and conflict of interest provisions. This, again, is an essential issue of accountability and we must not allow the possibility (and it may not be in the Government's mind at the moment) that either the annual report or the conflict of interest provisions are made exempt. The Hon. P. HOLLOWAY: I indicate that the Opposition supports the amendment. The Public Corporations Act was passed through Parliament in 1993 and, in many ways, it was one of the antidotes to the State Bank. As a member of the other place, I remember that, for some time after I entered Parliament, I argued strongly that we should have a Public Corporations Act to make our public corporations, such as statutory authorities (including banks), responsible to the Minister and to the Parliament. I believe that a rather dangerous trend has developed under our legislation whereby every time we have a Bill we start to make exemptions from the Public Corporations Act by regulation. Given that the Public Corporations Act was introduced to try to unify the measures that govern statutory corporations, I think it is a most undesirable trend that we seem to be moving away from it by putting in these exemption clauses. As a protest against that I am happy to support the amendment of the Hon. Sandra Kanck. The Hon. R.I. LUCAS: Partially for the reasons that I have outlined, the Government will need to oppose strongly this amendment. We need to bear in mind that this is not a decision making body. It is not taking decisions in the interest of its companies: it is providing advice to the Government of the day about its industry. The Government needs to have the advice of the two non-industry people as well as the people with experience in transmission, generation and distribution. My adviser tells me that the rough drafting of the regulations we are looking at in this area say that nothing in the section is to be taken to prevent the Director from representing the interests of licensees of that class and participating in meetings or discussions and voting accordingly. We have had to address this issue because the Government wants a body that is able to give it advice on the broad range of decisions. We do not want a body where people are having to exclude themselves, on a whole range of decisions all the time, from providing us with advice. It will otherwise be pointless appointing people who are active participants in the industry if the conflict of interest provisions of the Public Corporations Act are applied and they must exclude themselves from providing advice to me through this body. I hasten to say that the conflict of interest provisions are all about ensuring that you make decisions that will in some way benefit either you or the company that you represent. This body is providing advice to the Government or to the Minister (in this case it will be me) on these options within the industry. If this amendment is successful, a range of these directors at various times will have to exclude themselves from the discussions and it really defeats the purpose of the establishment of this body. The Hon. P. HOLLOWAY: Why then does the Treasurer seek to enable the Government to exempt by regulation any part of the Public Corporations Act rather than just that specific part that applies to a very special case?(a) conflict of interest of directors of a public corporation;
(b) annual reports of a public corporation.
The Hon. R.I. LUCAS: There is also a number of other provisions. Under the Public Corporations Act, public corporations are required to formulate an annual performance statement, which is generally a financial statement in terms of the financial objectives of a public corporation during a particular financial year; and, as Treasurer, I must approve those performance statements. This is not a body that will be operating and producing performance statements: it is an advisory body that will provide advice to me as the Minister. I am told that there are other provisions. Under the Public Corporations Act, the Treasurer's observers are not allowed to participate in the operations of a public corporations board.
Under this proposal we seek to have a Treasurer's representative who will be able to participate with the agreement of the chair. In certain circumstances the Treasurer's representative will be able to participate with the approval of the chair. That arrangement is not possible under the Public Corporations Act. There are three or four examples where we believe the provisions under the Public Corporations Act are inappropriate in relation to possible application to this body. It is a peculiar beast. It is most essential—and I think the Hon. Mr Holloway has agreed that the Labor Party acknowledges that the body ought to exist—but because it is a peculiar beast a number of the provisions of the Public Corporations Act do not apply, not because we want to see any less accountability for it but bearing in mind, as I said, that it is not a body that is making final decisions: it is a body that is advising and recommending to me, as Treasurer, and to the Government of the day.
The Hon. T. CROTHERS: We want to compare lemons with lemons and, if I heard correctly, where we are falling down at the moment is that we are comparing lemons with apples. I think the correct analogy is that the Government is seeking to try to include in the Public Corporations Act a similar provision that would enable the directors of a private company to employ a technical adviser. The difference is that the technical adviser, with the guidance of the chair of that body, will be able to participate in debate and, I suppose, the technical adviser in a private company, by route of the board of that company, may also be able to participate in debate. Is that not surely the closer analogy that, if you are looking for guidance in respect of this matter, it would be akin or a cousin of, if you like, a private company appointing a technical adviser who, by leave of the board of directors, can participate in the debate? Is that not really the analogy? Is that not really the orange with the orange, or am I missing something?
The Hon. SANDRA KANCK: I note the reasons the Treasurer has given to oppose my amendment. To repeat back to him what he said: he does not want a body the members of which have to keep excluding themselves from providing advice because they may have a conflict of interest. Quite clearly in that answer the Treasurer indicated that he does envisage that some of the members of the council are likely to have a conflict of interest on occasions. If I am not successful with my amendment, and based on the voting record of the Hon. Trevor Crothers and the Hon. Terry Cameron over the past 2½ Bills, it would appear, if I am reading it correctly, that they will vote again with the Government and that we have probably lost the amendment, but at least we have flushed out into the open exactly what it was the Government was going to exempt.
Members interjecting: The Hon. SANDRA KANCK: He is the one talking about flushing. Members interjecting: The Hon. SANDRA KANCK: I indicate my disappointment in the Government. I acknowledge that some of the comments that the Hon. Paul Holloway was making made a great deal of sense, particularly as he said, in the light of what happened with the State Bank and learning from our mistakes. Clearly what is going to happen here is that exemptions are going to be provided and we are not going to learn from our mistakes. Given the hour and the fact that we have made our positions clear I will not call for a division, but I indicate my disappointment at the position taken by the Government. Amendment negatived.The Hon. SANDRA KANCK: I indicate Democrat support for the amendment. Looking at the functions of the Electricity Supply Industry Planning Council, I can see that a UTLC representative—obviously someone who works or has worked in that industry—would have a fair amount to say on that, because these people are in touch with the workers who are on the ground—quite literally. I refer to some of the functions in clause 6E(1), as follows:
(b) to review and report to the Minister and the Industry Regulator on the performance of the South Australian power system;
(c) to advise the Minister and the Industry Regulator on matters relating to the future capacity and reliability of the South Australian power system.
The people who work in that industry—those people who are on the ground—could provide some very valuable advice on those things. In fact, they are largely being ignored at present. I believe that having someone from the UTLC could be very useful to that council. The council is more likely to be comprised of persons from the top echelons of industry rather than those at the bottom who also have a lot to contribute. The Hon. NICK XENOPHON: I support this amendment for a number of reasons. I commend the Government for establishing a planning industry body. It has an important role to play. I also support the concept that there ought to be a UTLC representative on it, because it is important that a different perspective be put in relation to this very important issue. A UTLC representative could play an important role in representing or at least reflecting the concerns and interests of consumers, because that is something that may be forgotten in the overall scheme of things. I understand that the Treasurer has addressed a number of issues that go towards that. However, I would have thought that, having a UTLC representative would, on balance, be of benefit to the whole issue of planning and would also give consumers ultimately a conduit and a say on these issues of planning, including structural issues, that will ultimately impact on the competitive framework and on the role of the industry in representing the interests of consumers in terms of delivering a service to them. The Committee divide the amendment:AYES (9)
Elliott, M. J. Gilfillan, I.
Holloway, P. (teller) Kanck, S. M.
Pickles, C. A. Roberts, R. R.
Weatherill, G. Xenophon, N.
Zollo, C.
NOES (10)
Cameron, T. G. Crothers, T.
Davis, L. H. Griffin, K. T.
Laidlaw, D. V. Lawson, R. D.
Lucas, R. I. (teller) Redford, A. J.
Schaefer, C. V. Stefani, J. F.
PAIRRoberts, T. G. Dawkins, J. S. L.
Majority of 1 for the Noes. Amendment thus negatived.Bill read a third time and passed.
