New Women's and Children's Hospital Act 2022

Project site: defined in section 5 by reference to a plan in Schedule 1, but with ministerial discretion to reduce the area by notice in the Gazette. The precise boundaries are to be delineated in plans deposited in the General Registry Office (GRO). This means the exact extent of land taken is not fully known until the Minister deposits those plans and publishes a Gazette notice. The Minister may also later determine that not all of the originally indicated land is required, further reducing the site. This flexible definition gives the Minister near‑complete control over the footprint of the project.

Support zones: described in section 7(1) in two categories. For underground utilities and stormwater works, any land within 800 metres of the project site boundary is a support zone. For other support services and facilities (roads, paths, bridges, tramways, railways, temporary amenities, construction staging, parks and playgrounds), the support zones are those areas shown in Schedule 1, again subject to ministerial reduction. This 800‑metre catchment is unusually broad: it includes any private or public land within that radius, with no requirement for consultation, negotiation or compensation for temporary occupation or works.

Support services and facilities: listed in section 7(2) and include utilities (electricity, telecommunications, gas, water, sewerage), stormwater management, roads and transport infrastructure, temporary amenities for workers, construction‑zone works immediately adjacent to the site, and the construction of parks and playgrounds for amenity restoration. The breadth of this definition ensures that almost any physical work needed to build or service the hospital can be carried out in the support zones without further statutory authorisation.

Vesting free of encumbrances: when land vests in the Minister under section 6(3), it comes free from all pre‑existing dedications, encumbrances, estates and interests except those the Minister expressly indicates on the deposited plan. This includes mortgages, easements, leases, restrictive covenants, native title interests (subject to Commonwealth law) and any other registered or unregistered interests. The note to section 6 confirms that once vested, the Minister holds fee simple with full powers as owner.

Deemed‑to‑satisfy classification: section 8(2) provides that all development on the project site or support zones is taken to be classified by the Planning and Design Code as deemed‑to‑satisfy development. In the planning system, deemed‑to‑satisfy means the development must be approved if it meets the code’s performance criteria; there is no discretionary assessment, no public notification and no third‑party appeal rights. Combined with section 8(3) designating the State Planning Commission as the relevant authority, this removes local council and community input from the approvals process.

Heritage extinguishment: section 13(2) automatically removes any State Heritage Place or State Heritage Area from the South Australian Heritage Register upon commencement of that subsection. The property is taken to cease being a heritage place, with no requirement for a separate heritage assessment or ministerial decision under the Heritage Places Act 1993.

Prescribed area for SA Police: section 10 defines a prescribed area as any area of land delineated in a plan deposited in the GRO and identified by the Minister in a Gazette notice. That land vests in the police‑responsible Minister free of encumbrances, must be used by SA Police for its Mounted Operations Unit, and no compensation is payable for the vesting. Development on that area is treated as if it were on the project site, attracting the same planning bypass.

The Act directly affects a narrow but powerful set of actors. Private landowners within the project site lose their property rights by vesting without compensation under the Land Acquisition Act 1969. Because section 4(3) excludes that Act, the normal procedural protections (public purpose declaration, valuation, negotiation, compensation for disturbance, and rights of objection) are absent. The Act does not provide any alternative compensation mechanism. Similarly, any person or entity holding an easement, mortgage, lease or other interest in the project site will have that interest extinguished unless the Minister specifically preserves it on the deposited plan. Holders of interests in support zones (both private and public) face temporary or permanent occupation, entry and works on their land without any stated compensation for loss of use, damage or diminution in value. The 800‑metre utility corridor is particularly broad: a landowner 750 metres from the site may have their land entered for underground utility installation without notice rights or recourse. The Corporation of the City of Adelaide is directly affected by section 14, which waives all fees and charges otherwise payable for functions under the Act. This includes fees for planning applications, inspections, road opening permits, development charges and any other fees that would ordinarily be levied under the Local Government Act 1999, the Planning, Development and Infrastructure Act 2016, or other council by‑laws. The Adelaide City Council also loses its role as a planning authority for the project because the State Planning Commission is the sole relevant authority. SA Police is affected by section 10: the Minister may vest Park Lands land in the police Minister for the Mounted Operations Unit without compensation. The Park Lands are public land subject to the Adelaide Park Lands Act 2005, which the Minister must only “have regard to” under section 7(3) when exercising powers within the Park Lands support zones. However, that regard obligation does not apply to the SA Police relocation under section 10. Heritage advocates and owners of State Heritage Places within the project site lose the heritage listing automatically upon commencement of section 13(2). No consultation, heritage impact assessment or alternative preservation order is mandated. Utility providers (electricity, gas, water, telecommunications) may be required to install, modify, remove or relocate their infrastructure within support zones at the Minister’s direction, and the Minister’s authorised persons can do so without the provider’s consent under section 7(5)(vi). Road users and adjacent residents face temporary road closures (section 9(1)(a)) without any requirement for alternative route provision or public notice beyond the Gazette. The State Planning Commission is designated the relevant authority for all development under the Act, overriding any other body that would otherwise have jurisdiction. The Minister responsible for the Planning Act must amend the Planning and Design Code as requested by the project Minister under section 13(1), with no application of the normal consultation or amendment procedures. The Registrar-General is obliged to take whatever action the Minister directs regarding certificates of title, register entries and plan deposits (section 12). This includes cancelling existing titles and issuing new ones without the usual procedural checks.

The Act imposes few duties and grants expansive rights, almost entirely to the Minister. Minister’s rights include the power to vest land in fee simple (section 6(1)), to enter and occupy support zones (section 7(5)(a)), to close or open roads (section 9(1)), to vest Park Lands for SA Police (section 10(1)), and to make any provision relating to land or structures by instrument deposited in the GRO (section 11(1)). The Minister may delegate these powers to any person or class of person by written instrument (section 7(6)), and those delegates exercise powers “to the exclusion of any other powers of the person under another Act or law.” This means a delegate (for example, a private contractor) can enter land and conduct works without needing any other permit, licence or approval. Minister’s duties are minimal. Under section 7(3), when exercising powers in the Adelaide Park Lands support zones, the Minister must “have regard to” the statutory principles in section 4 of the Adelaide Park Lands Act 2005. This is a procedural duty only: the Minister must consider those principles but is not bound to follow them. Section 7(4) requires the Minister to ensure that after completion of support services and facilities, the public amenity of the support zones is “restored” by landscaping, revegetation or constructing parks and playgrounds. However, that duty is qualified by the proviso in section 7(4) that it does not affect anything constructed or installed under section 7(2)(a) (utilities), (b) (stormwater), (c) (roads) or (f) (parks). So utility and road infrastructure can remain permanently without restoration. The Minister must also give public notice within two months of depositing an instrument under section 11 (land status changes). The Registrar-General has a duty to act on ministerial directions under section 12, but no discretion to refuse. The State Planning Commission has the right (and duty) to act as relevant authority for development applications, but because classification is deemed‑to‑satisfy, its role is largely administrative. Affected landowners and interest holders have no express rights under the Act: no right to compensation for vested land, no right to be heard before their interests are extinguished, no right to appeal a vesting decision, and no right to object to works in support zones. The only potential avenue for challenge would be through judicial review on administrative law grounds (e.g., bad faith, improper purpose, jurisdictional error), but the Act’s wording is designed to make such challenges difficult by conferring broad discretion and overriding other laws. SA Police is given the right to use the vested Park Lands for its Mounted Operations Unit, but it has no right to refuse the vesting. Utility providers have no express right to refuse entry or relocation; their consent is not required. The Adelaide City Council has no right to fees (section 14 expressly waives them) and no planning role. Members of the public have no right to be notified of road closures or to challenge them.

The Act contains no criminal penalty provisions. It does not create offences for obstruction, failure to comply with a ministerial direction, or unauthorised interference with works. This is a deliberate departure from many other enabling infrastructure Acts in Australia, which typically include offences such as obstructing an authorised person, damaging works, or failing to comply with a notice. The enforcement mechanism instead appears to rely on the Minister’s broad powers to exclude access, remove structures, and carry out works without needing the landowner’s consent. If a person refuses entry to a support zone, the Minister’s authorised delegate may use force to enter and occupy under section 7(5)(a), and may erect fences and barriers under section 7(5)(c) to prevent access. There is no stated procedure for a court order before exclusion. The absence of penalties means that if a person damages works or obstructs activities, the Minister’s recourse would be to common law remedies (trespass, nuisance, injunctions) or to rely on any offence provisions in other Acts that are not overridden. However, section 4(1) provides that the Act has effect despite any other Act or law of the State, so an offence in another Act that conflicts with a ministerial action may be overridden. For example, if the Minister’s delegate damages a tree in the Adelaide Park Lands, the offence provisions in the Adelaide Park Lands Act 2005 may be overridden if the damage was done in exercising a power under section 7. Regulations under section 15 may be made that could create offences. Section 15(2)(a) allows regulations to modify or exclude any Act provision, so a regulation could potentially create penalties for obstruction or damage. But as at enactment, no such regulations have been enacted (the text does not mention any). Enforcement of the duty to restore amenity under section 7(4) is not backed by any specific enforcement mechanism. If the Minister fails to restore a support zone after project completion, there is no penalty and no third‑party right to compel performance. The only remedy would be through judicial review to compel the Minister to perform the duty, but that would require a litigant with standing and resources. The Registrar-General must comply with ministerial directions under section 12; there is no penalty for failure, but the direction is legally binding, so non‑compliance could be enforced by mandamus. Similarly, the Minister responsible for the Planning Act must make alterations to the Planning and Design Code as requested under section 13(1); failure to do so could be judicially reviewed. However, because the Act gives the project Minister the power to determine what is “necessary to give effect to” the Act, the scope for challenging a failure is limited. Overall, the enforcement architecture is minimal and relies on ministerial discretion, with no independent oversight body, no appeals tribunal, and no criminal sanctions expressly provided.

Section 4(1) is the key provision: “This Act has effect despite any other Act or law of the State.” This gives the Act absolute primacy over all South Australian legislation. Section 4(2) reinforces this for land law by stating the Act applies despite the Real Property Act 1886 (the Torrens system statute). Section 4(3) expressly excludes the Land Acquisition Act 1969, so no compensation, procedural fairness or independent valuation is required for vesting of land. The note to section 4 preserves the operation of Commonwealth law, so native title rights under the Native Title Act 1993 (Cth) and Commonwealth‑Crown interests are unaffected by the Act. The Act also interacts with the Planning, Development and Infrastructure Act 2016 in a carefully limited way. Section 8(1) applies only two requirements of that Act: planning consent and building consent must be granted, and final development approval must be granted. But section 8(2) deems all development deemed‑to‑satisfy, and section 8(3) designates the State Planning Commission as the relevant authority. Section 8(4) then provides that no other assessment, decision, consent, approval, certificate, licence, permit, consultation, notification or procedural step is required under any State law for actions under this Act. This ousts the operation of the Planning Act’s performance‑assessed and restricted‑development pathways, public notification provisions, third‑party appeal rights, and the role of council as a relevant authority. The Heritage Places Act 1993 is overridden by section 13(2): State Heritage Places and Areas within the project site automatically cease. No consultation under the Heritage Act, no ministerial decision, no heritage agreement, and no appeal. The Local Government Act 1999 is affected in two ways. Section 9(2) provides that a road opened by the Minister under the Act is taken to be a public road within the meaning of section 4 of the Local Government Act, but the normal road opening procedures under the Roads (Opening and Closing) Act 1991 are not required. Section 14 waives all fees payable to the City of Adelaide. The Roads (Opening and Closing) Act 1991 is effectively bypassed by section 9: the Minister can open or close roads by lodging a plan with the Registrar‑General, without council consent or public inquiry. The Adelaide Park Lands Act 2005 is partially preserved: section 7(3) requires the Minister to have regard to its statutory principles when exercising powers in Park Lands support zones. But “have regard to” is a weak duty, and section 10 (SA Police relocation) does not even impose that obligation. The Real Property Act 1886 is overridden by section 4(2), so the indefeasibility provisions of Torrens title do not protect registered interest holders from extinguishment without compensation. The Registrar‑General must act on ministerial directions under section 12, which may include cancelling titles without the normal procedures (e.g., no production of certificate of title, no consent of registered proprietor). The Fire and Emergency Services Act 2005 and Work Health and Safety Act 2012 are not mentioned, but section 8(4) says no other State‑law consent or approval is required, so health and safety or fire safety approvals could be implicitly excluded. However, Commonwealth laws and common law duties (e.g., duty of care, nuisance) remain. The Public Works Committee scrutiny is not mentioned; the Act overrides any requirement for parliamentary committee approval. The State Procurement Act is also not mentioned but may be overridden if a regulation under section 15 modifies its application.

The Act received Royal Assent on 24 November 2022 (2022 No. 19) and was proclaimed to commence on 19 January 2023 (Gazette 18 January 2023 p56). As a relatively recent statute, no amendment acts have been passed as at the date of the published text (the legislative history in the source shows only the principal Act). The regulations‑making power under section 15 is unfettered, so minor or operational amendments could be made by regulation rather than by amending Act. The Act also contemplates ministerial determinations by Gazette notice (e.g., varying the project site boundaries under section 5(b), or delineating support zones under section 7(1)). These determinations are not amendments to the Act itself but are delegated instruments that can change the application of the Act without parliamentary scrutiny.

The source text provided does not refer to any litigation. The Act has been in force only since January 2023, and the project is likely still in early stages, so there is no recorded case law interpreting the Act. However, potential litigation battlegrounds can be anticipated: judicial review challenges to the vesting of land without compensation (arguing that the exclusion of the Land Acquisition Act is invalid for inconsistency with the Commonwealth Constitution’s acquisition‑on‑just‑terms guarantee under section 51(xxxi), to the extent that any Commonwealth interest is affected); challenges to the extinguishment of heritage listings (though heritage is a State matter, so constitutional arguments are weak); challenges to the breadth of the regulation‑making power as an impermissible delegation of legislative power; and challenges to the lack of procedural fairness before vesting (though the Act appears designed to oust natural justice requirements). The note to section 4 preserves Commonwealth rights, so any attempt to vest land in which the Commonwealth holds an interest could be invalid. Similarly, if the project site includes land subject to native title, the Native Title Act 1993 (Cth) may require the future act regime to be followed, which the State Act cannot override. Constitutional litigation on the basis of an acquisition otherwise than on just terms (implied from the separation of judicial power or from the acquisition power) is unlikely to succeed because the High Court has held that the guarantee in section 51(xxxi) only applies to Commonwealth acquisitions, not State ones, unless the State is acting as an agent of the Commonwealth. However, if the hospital is partly funded by the Commonwealth, an argument could be made. No such cases are in the source, so this remains speculative.

Several provisions create traps for the unwary. No compensation for vested land: section 6(3) vests land free of encumbrances, and section 4(3) excludes the Land Acquisition Act. A landowner who does not realise that the normal compensation rights are removed may assume they will receive market value for their property. The Act provides no alternative compensation mechanism. A mortgagee who holds a registered mortgage over land in the project site will lose that security without any recourse, unless the Minister expressly preserves the mortgage on the deposited plan. There is no duty to notify interest holders before vesting. The 800‑metre support zone is not shown on any public plan: section 7(1)(a) defines it by distance from the project site boundary, not by deposited plan. A landowner may not know their land falls within that zone until works commence. There is no requirement for the Minister to delineate that 800‑metre zone in a plan or Gazette notice, only for the other support zones. Minister’s power to delegate to “any person” under section 7(6) means a private contractor can be authorised to exercise all support‑zone powers, including entering land, removing vegetation, and altering roads. The delegate exercises those powers “to the exclusion of any other powers of the person under another Act or law,” so the contractor cannot be said to be acting under, say, the Work Health and Safety Act in relation to that work. Heritage extinguishment is automatic on commencement of section 13(2): there is no separate trigger or ministerial decision. If the project site boundaries are later reduced under section 5(b), the former heritage place is already removed from the register and cannot be restored without a new listing application. The Minister may reduce the project site under section 5(b) without any consultation, but land that ceases to be part of the project site does not automatically revert to its previous owners. The Act does not provide for re‑vesting. Road closures under section 9(1)(a) are temporary but the Act does not specify a maximum duration. A “temporary” closure could last for years. The Minister may vary or revoke the notice by subsequent Gazette notice under section 9(3)(a), but there is no automatic review or expiry. No fees to the City of Adelaide under section 14: but the Act does not waive fees payable to other councils or state agencies. If support zones extend outside Adelaide city limits, fees to other councils may still be payable. However, section 8(4) says no other consent or approval is required under State law, which could be read to exclude council permit fees as well. This is ambiguous. Section 11(1) allows the Minister to deposit an instrument in the GRO making “any provision relating to the status, vesting or management of land or structures as the Minister thinks fit.” This is an extraordinary power: extinguishing easements, varying caveats, creating new reserves, or vesting care and control in any body. Public notice must be given within two months, but there is no requirement for prior notice to affected parties. Regulations under section 15(2)(a) may modify or exclude any Act provision. A future regulation could, for example, exclude the Work Health and Safety Act, the Environment Protection Act, or the Freedom of Information Act for the project. This delegation is very broad and could be exercised without amendment to the principal Act. The Act does not expire or sunset: once the hospital is built, the Minister retains powers under section 11 to manage land and structures in connection with the operation of the Act. There is no automatic repeal.

The Act imposes no compliance obligations on private parties. Its duties fall on the Minister, the Registrar‑General and the State Planning Commission. For private landowners and interest holders within the project site or support zones, “compliance” means cooperating with ministerial directions and not obstructing entry or works. If a person refuses access to a support zone or interferes with works, they risk being forcibly excluded or sued for trespass. The better course is to seek legal advice immediately upon receiving any notice of vesting or entry. Check the Gazette regularly: vestings under sections 6 and 10, road closures under section 9, and support‑zone delineations under section 7 are all published in the South Australian Government Gazette. A landowner who does not monitor the Gazette may miss the only formal notification. Inspect deposited plans at the General Registry Office. The Act requires the Minister to deposit plans identifying the project site, support zones and prescribed areas. These plans are available for inspection and define precisely which land is affected. Negotiate with the Minister for preservation of interests: section 6(3) allows the Minister to indicate on the deposited plan that certain encumbrances survive vesting. A holder of an easement or lease should contact the Minister’s office as early as possible to request preservation. There is no statutory right to that outcome, but a reasonable approach may succeed. Challenge through judicial review if the Minister acts beyond power, for example, by vesting land outside the project site as defined in the deposited plan, or by failing to have regard to the Adelaide Park Lands principles (section 7(3)), or by issuing a notice that is procedurally defective. Any such challenge should be brought promptly because administrative decisions can become entrenched. Regulatory compliance: if a regulation is made under section 15 that imposes record‑keeping, reporting or other obligations on contractors or utility providers, those entities must comply. As no such regulations have been identified in the source, this is forward‑looking. For the Adelaide City Council: comply with section 14 by not charging fees for functions under the Act, but continue to charge fees for unrelated activities. Also provide the Minister with any necessary local knowledge about support zones. For SA Police: accept the vested Park Lands under section 10 and use it for the Mounted Operations Unit. No financial compensation is payable, but the land is vested in the police Minister free of encumbrances. For utility providers: expect to receive directions from the Minister or delegates to install, modify or relocate infrastructure. Co‑operation will avoid the Minister exercising powers under section 7(5)(vi) to do the work directly, which could result in damage or unnecessary costs. For heritage bodies: recognise that the Act automatically removes heritage listings within the project site. If other heritage areas exist nearby in support zones, they are not automatically removed, but the Minister’s works could affect them. Lobby for protection through the “have regard to” process is not legally binding. For the general public: monitor the Gazette and deposited plans if your property borders the project site. No formal objection process exists, but submissions to the Minister may be considered as a matter of policy. In short, “compliance” is predominantly a matter of being aware of the Minister’s powers and adjusting plans accordingly; the Act does not create a voluntary compliance code for private parties.