SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 July 2013.)

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:55): Before we start, Mr Deputy Speaker, I have lengthy second reading notes here in reply. I do not want to take up the parliament's time or the deputy leader's time with her having to address the thing as it is without knowing where we are intending to modify it. She can if she wishes; I am just putting it all out on the table. Very briefly, what has happened is that, as I foreshadowed when we first introduced this before the break, we were going to be consulting over the break and receiving feedback about the exact draft—

Ms Chapman: A supplementary second reading speech. Is that what you're saying?

The Hon. J.R. RAU: Well, look, we can call it that or I can do it in reply. I intend to file a number of amendments, if they have not already been filed, which I suspect they have.

Ms Chapman interjecting:

The Hon. J.R. RAU: Okay.

Ms Chapman interjecting:

The Hon. J.R. RAU: We have listened to the Law Society, the Bar Association, the Chief Justice; every person you can possibly imagine, and I will read out who they all are in due course as well. I do not mind how we handle it, but I just did not want—

The DEPUTY SPEAKER: Then you should probably do it in the second reading reply.

The Hon. J.R. RAU: Yes; I just did not want the deputy leader to expend a lot of time and energy on the bill in its current form and forensically work her way through it if she would actually be doing work that has already been done and she does not need to do it; that is all.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:57): I appreciate the supplementary remarks by the Attorney, always considering my best interests, I see, in ensuring that there is no unnecessary burden placed on the opposition to make a contribution. I note that he indicates that, after consultation during the winter break, as he had foreshadowed in his second reading, he is apparently to table a number of amendments reflecting meritorious recommendations put during that time. I am assuming, therefore, he has taken some note of those submissions. I propose in my contribution to make a brief summary of the areas of concern that are raised; I will not be going into any detail on them. I am ever hopeful that most of those issues will either be explained or accommodated by amendment, and we will proceed with it.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Thank you. The South Australian Civil and Administrative Tribunal Bill 2013, having been introduced subsequent to a discussion paper, which was released two years ago now in 2011, came with the announcement by the Attorney-General on 26 August 2011 that he was committed to establishing:

The people's court or General Appeals Tribunal...based on...'administrative appeal tribunals set up federally and in every other state except Tasmania'.

The model proposed would allow panels of:

...independent experts to rule on matters such as:

THE REJECTION of extension to a home by a council...

DISPUTES between landlords and tenants.

DOG and cat management decisions by councils.

TAX disputes with the State Government.

SMALL claims disputes.

COMPLAINTS against police.

Members would be aware that the Attorney-General's parliamentary secretary had undertaken an audit of what we have currently accumulated in South Australia by way of tribunals and another bodies to be considered. In July this year the Attorney-General confirmed, at least by press release initially, that the government intended to consult on the bill. There is no question that since the 1970s there has been significant growth in the number and variety of tribunals in Australia.

I will not go into any detail about my view on the establishment of a number of these tribunals. Suffice to say it was not always in the direction that I agreed with but, nevertheless, we have accumulated a mass and it is hardly surprising that we are now looking to some streamlining. In any event, specialist tribunals have been established on a relatively ad hoc basis where it is thought undesirable to confer powers on courts.

The consequence of this, of course, has led to some overlap and some duplication of infrastructure and resources. I think it is fair to say that probably we have produced some inconsistency in approach, unnecessarily narrowing the specialisation of some of these tribunals. It is fair to say, though, that the jurisdictions have progressively established civil and administrative tribunals which consolidate the work of a range of other tribunals, the theory being, as always, the aspiration to provide for quicker, cheaper, fairer, more informal and efficient access to justice and to free up the courts from hearing minor civil disciplinary and administrative review matters.

It has never ceased to amaze me how often that aspirational objective is outlined and how often it fails. I can recall, for example, in the mid-1970s, fresh out of school, the establishment of the Family Court, not a tribunal but a federal body. It was an accumulation of most of the jurisdictions covering those matters, and it was thought to provide a new, informal, cheap, accessible tribunal in which it would not even be necessary for judges to wear a wig and gown because it would be so informal and so friendly, and quite probably many of the applicants and respondents would not need to even be represented.

They could sit cosily around a courtroom where the judge was at the same level on the bench and they would all have a little chat and everything would be resolved. How far from that could it be that it now is one of the most sophisticated levels with its own registrars attached to it. So, these aspirations are wonderful but, in my experience, they are rarely achieved. Nevertheless, where they have operated and functioned well that should be acknowledged and recognised.

I think it is fair to say that sometimes the personnel who occupy the senior positions in these entities can take significant praise where these objectives are achieved, and rightly so, whereas sometimes, no matter what the governance structure or leadership structure you might have in a body, if you have not got good people in there, it can still of course fail miserably. So, in any event, we recognise where it has been successful.

I think it is fair to say, and I do not think this is universal, that sometimes where there has been a failing—if we were to equate failing with a significant level of complaint from the constituency who use their service, as a guide—that it usually relates to an area of major conflict between the relevant parties. I use the areas, for example, in residential tenancy. Perhaps this is a generalisation but there can be a level of fiery interaction between unrepresented landlords and tenants whereas you may not see the same level of civility—or lack thereof—in a courtroom in the Supreme Court between a commercial tenant and their unhappy tenant.

The other area probably where we have significant complaint as members of parliament is the hearings undertaken by the Guardianship Board. That is an entity that sits down there in the ABC building on North East Road, Collinswood. The Guardianship Board has to deal with applications which are frequently emotive and which do attract the distress and ire most often of relatives. It is a difficult jurisdiction. I do not raise that as an example to say necessarily that that level of complaint is all justified but to make the point that sometimes the nature of the subject matter before them and the personnel involved do attract considerable extra attention in the operation of those tribunals.

The concept of a general appeals tribunal in South Australia dates back in our jurisdiction to 1984; the recommendation of the South Australian Law Reform Committee. The process of reviewing administrative decisions was itself reviewed by the Attorney-General's Department and the Law Society, which proposed the idea of a civil or administrative tribunal. Certainly, in the submissions I have received from the Law Society since the tabling of this bill, they claim that this is something they have been championing for some years, and they are pleased that finally it appears to be coming to fruition.

I will not outline the detailed position in the other states and at the federal level, but it is fair to say that, over the 30 years, from the commonwealth in 1976 until more recently in Queensland in 2009, every other jurisdiction in the country has moved to a sort of super tribunal system, except Tasmania, and we are now following suit.

There is a significant expectation by the public that they have access to prompt and affordable determination of their disputes. Here again, the reliance on these tribunals, whilst chequered in the effectiveness of their operation, do stand up against the now significant delays in our court system, particularly the District Court. I was at a meeting of other barristers Saturday a week ago, and they tell me that it is now a 2½ year waiting list—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: For civil matters—and that is concerning because access delayed, of course, is very often described as access denied. Many in that jurisdiction do not have access to other alternates, but from the point of view of some of these other areas at least being out there and available to access for specialist areas, one can assume only that our District Court will be under even further pressure at the civil level without the individual bodies that exist here at the moment.

The Law Society presented a number of recommendations during the 2011 review. Obviously, they were not all picked up, but I am assuming that a number of them have in the amendments that are to be tabled by the Attorney.

On the question of cost, I place on the record that the Attorney-General indicated during budget estimates (and I think the Premier subsequently in a radio interview in the general media) that the Sturt Street court building would become SACAT's new accommodation. Members would be aware that that had been a court, and that it had been closed and had been re-opened for a special purpose and that it has had a significant refit.

Although at one stage I was told that the building was still leaking, I am sure that at least it will be available and ready to occupy. I am not sure where all the personnel are going to come from or whether there is going to be a shaving of the numbers of tribunal leaders or appointments. I did give some thought the other day to those judges who are sitting down there in the Industrial Court with not much to do—I say that with respect—given the decision of the government to transfer industrial determinations to Fair Work Australia, effectively, or to the national level.

All who are left, I think, are public servants and not many others who are still the subject of determination in the Industrial Court. I have not read anywhere in any public arena that any of them have retired or been transferred to the Galapagos Islands or somewhere, so I am assuming they are all still sitting there. I think, at one stage, there was some consideration given to the asbestos compensation cases going to them. I am not sure whether that has actually happened or not.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Yes, the Attorney helpfully interjects to tell me that there are a couple of other jurisdictions on dust diseases and liquor licensing matters that they can also do, so I am pleased to see that they are actually getting a bit of work down there.

I cannot add any comment as to the workload that is coming from the state government matters with the public servants. Given the number of them who write to me on a regular basis, I am assuming that there is a fair bit of complaint out there about this government and they are down there filling up some of the caseload at the Industrial Court. In any event, if there are positions ultimately to be filled for this new super court, then perhaps that will give them an opportunity to fill up their day, or at least for one or other of them to transfer over to that.

The 2013-14 budget has allocated $4.9 million over four years in operating initiatives and $1.44 million in investing initiatives to establish the tribunal. As has now been out in the public arena, there is the apparently leaked cabinet submission where the project was costed at $7.3 million over five years, so one does wonder if there is going to be some significant shortfall in the establishment of a new tribunal so that it is particularly effective.

No-one would want to establish any entity without adequate funding. We on this side of the house have been critical in the past of governments not allocating reasonable funding. For example, at the time of the establishment of the ICAC, we obviously took a different view as to the amount of funding that would be necessary and have said so; nevertheless, if there is to be a skinny tribunal, then, no doubt, the cloth will be cut according to what is provided.

The second reading contribution states the intention to create a 'one-stop shop' for the community on a broad range of civil and administrative matters. I should just also say that my understanding is that this bill is to be the first of, I think, a series of bills, I am assuming to, firstly, transfer and amend a whole lot of other legislation that relate to the appointment of the existing tribunals, which are presumably being repealed. There will then be some usual catch-up legislation to go with the structure.

We are really setting the umbrella legislation, so, with this foundation bill, we do not have identification yet of which tribunals are going to be caught up with it. There is the definition by the Attorney in the second reading to identify the types of bodies that exercise 'merits review functions', including 'ministers, commissioners, ombudsman, courts and other specialist boards and tribunals.' So, we are yet to see a comprehensive list as to who is going to be in and who is going to be out. I will come to that in just a moment, in relation to freedom of information appeals as to whether they are from the ombudsman, or whether they are going to go direct. I will be seeking some clarity on that, and I will just mention it at this point.

The SACAT is to be headed by a president who would be a concurrent office holder as a judge, or just the Supreme Court or District Court. There is a variety in other jurisdictions as to how that operates, and there has been some commentary made in the submissions. We will see what amendments the government is proposing.

The only criticism that I have heard or read of in respect of having a one-size-fits-all approach—and bearing in mind that we are following suit for the rest of the country at this point—has been this loss of specialist expertise. The one advantage I would say of having specialty tribunals—it is not unreasonable that this be considered; there was a recent article in the Law Society's Bulletin, in which Dr John Chaney, President of the WA State Administrative Tribunal and a Justice of the Supreme Court of Western Australia, had considered this point.

I think it is fair to say that in his advice to members of the Law Society, and generally to those who are interested in this topic, it has significant benefits 'in accessibility, efficiency, flexibility, accountability, consistency, and quality'. This is no disrespect to His Honour, but usually the heads of these new bodies are sympathetic and rather flattering of their own body. Nevertheless, it seems he had started with some caution as to how these things can go wrong—not so much how they can go wrong, but what benefits you throw out when you get rid of the specialty areas.

There is a school of thought that says it is better that you have somebody who is going to be providing an arbitrational or judicial determination of a legal matter who has absolutely no knowledge of the particulars of the matter before them. In other words, for example, if they are dealing with a teachers' dispute in a disciplinary matter, that they are not teachers themselves. This type of experience sometimes leads to a particular bias, and it is sometimes better to be completely independent of the subject matter of the dispute.

Others say it helps to have some knowledge. For example, if you have someone who is making a determination of a medical disciplinary matter and you are a medically-trained person, particularly in the specialty of which the person practices who is the subject of the application, it can be helpful to quickly identify if there has been a following of proper process. There are various schools of thought on that.

What is important is that whoever we end up with in a tribunal, whatever generalist experience they may have, that they have available to them access to expertise to support the decisions that they are going to be making. That, to me, is the most important thing in a circumstance where a non-specialist is making the determination.

In relation to the Law Society of South Australia, I will quickly summarise the matters that the Hon. Stephen Wade has summarised. It is a rather lengthy document. On the other hand, the Bar Association has sent in its submission, adding a couple of extra matters.

The Hon. J.R. Rau: I think we have dealt with most of them.

Ms CHAPMAN: They have been, mostly?

The Hon. J.R. Rau: I think so.

Ms CHAPMAN: Well, I think the federal issue—

The Hon. J.R. Rau: If not, we will come back to the ones we haven't dealt with, by all means.

Ms CHAPMAN: The Law Society submission includes:

removal of the phrase 'reduction in the need of legal representation' from the objectives of the bill;

that the president of the tribunal should be a Justice of the Supreme Court, as in the case of Victoria, Queensland and Western Australia, in order to give the tribunal impetus and status;

that the ability to revoke a president by proclamation be removed to allow greater independence, potentially with a five-year capped term;

remuneration of the president should be determined by the Remuneration Tribunal, not the Governor, to again ensure independence;

a requirement that the president be full-time;

guaranteed tenure of the deputy presidents from the District Court (perhaps for five years);

a requirement for a person to apply to be a member of the tribunal should be removed, allowing appointment from those who have not applied;

clarification as to the roles and rules of evidence;

a stipulation that a person cannot act for fee or reward as a lawyer in their appearance before the tribunal consistent with the Legal Practitioners Act;

allowance for costs to be awarded in some instances;

retention of the privilege against self-incrimination and other common law privileges;

provision that matters before the tribunal are to be considered litigation;

clarification as to whether the tribunal is a court of the state; and

provision of both a written notice of the decision and information about review rights.

In the Bar Association's submission, in their view, there is a high likelihood that SACAT is a tribunal and not a court and the consequence of the characterisation of SACAT as a tribunal is that it cannot be a repository of federal judicial power. Now, that is of concern, and if that is a question of who we are going to have in charge of this tribunal it becomes even more important. If that is going to be remedied in the amendments, I will not dwell on it further, but there are a couple of other matters which I think, on my quick perusal of that, have been captured.

The opposition's understanding is that, as indicated in estimates, SACAT would not be under the management of the Courts Administration Authority. Rather, it would be managed by the Chief Executive of the Attorney-General's Department. That is a curious addition, but nevertheless, I think the expectation is that it would facilitate an early establishment of the new court, which could, under that regime, perhaps commence by early 2014, which has a sort of flavour of being important for the purpose of showing a new system operational before an election. It may not be that; it may be that he has a genuine view that it is better that the Chief Executive of the Attorney-General's Department run this new system and not the Courts Administration Authority.

The Courts Administration Authority and the Attorney have come into some attention during the estimates period, and it would be very disappointing if there was a decision to move to the bureaucracy, as distinct from the independence that the Courts Administration Authority has in respect of all other matters in the judicial area. That would be very disappointing.

I note that, from the Law Society's overview of the SACAT jurisdictions (this is from the consultation paper), there are four main areas: the jurisdictions under the vocational, occupational and disciplinary functions, which largely result to different occupations and professions—the Legal Practitioners Disciplinary Tribunal for example—but everyone else, such as land valuers, plumbers and the like, and also the Equal Opportunities Tribunal.

Under the human and community services, housing and local government, there is also the Residential Tenancies Tribunal. I forget what they call housing improvement now—I think it is the Public Housing Appeal Panel or something of that nature—I do not have a note of it here. In any event, there is a housing appeal panel, but I note there is also the capacity for freedom of information and health and community services potentially to be referred. Members would be familiar with freedom of information; that is dealt with by an appointed officer within departments of government, for example, or agencies—local government and the like—with appeal processes to the Ombudsman and then to the District Court.

The health and community services commissioner was something that was born in the legislation in this house, I think in about 2003-04, on my recollection under minister Hill—it might have even actually been under minister Stevens. I can remember the long debates over that being appointed and the importance, the government said, to have a specialty independent process in that instance where the commissioner had health and community complaints which needed to be separated off and not be in the Ombudsman's office for two reasons.

Firstly, they said it was an area of specialty that needed to be on its own. Secondly, they wanted to have health complaints expanded, not just principally to health complaints in the Department for Health entities and hospitals, but also to private hospitals and to community organisations. So notwithstanding that the government has been quite happy to come in here and espouse the virtues of the need to have separate tribunals and/or commissioners, we are not certain whether that is going to be included. Perhaps the Attorney could provide us with a list of the anticipated ones that are ultimately to be included on the list.

Third is the tax deregulatory and business licensing division. There are a number of entities here, again, some of which have been established since there has been a restructuring, like the Essential Services Commission. That entity, as I understand it, may be given some extra responsibility but again was born to have a very specific role and yet it seems is likely to be pulled into the system.

The commercial and civil area is the division to cover the building work contractors, consumer credit, small claims, and so on. There are some areas to be transferred out of the Magistrates Court, as I understand it, for a lot of these matters, and I expect it is the attempt of the government to try and save money that motivates the push for those jurisdictions. That is an area, I must say, more particularly in relation to building construction work, which frankly I would have thought needed some area of specialty but nevertheless, we will see how that works.

So we will support the passage of the bill. There is a comprehensive list of amendments that I have been provided with, and at first blush there were some that I picked up which have followed the Law Society's recommendations, and I am pleased to see that. If there are other particular matters that we consider still need to be adopted, we will consider that between the houses. But we would appreciate, Attorney, a list of all of the tribunals at this stage, having conducted two reviews that you intend will actually be transferred to fit under this new umbrella.

The DEPUTY SPEAKER: If the minister speaks, he closes the debate.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:30): Yes, thank you very much Mr Deputy Speaker, and I thank the deputy leader for her contribution and I am pleased that the opposition is, by the sound of it, generally supportive of the proposal. I am going to speak at some length in relation to this so that I can do two things: first, try to answer some of the questions the deputy leader has raised; secondly, for those members who want to be taken through each of the amendments, I will briefly explain why they are being done so that that does not need to happen again later. If members want to follow this, it would be useful to have a copy of the bill and the amendments in front of you so that you can go through them.

Ms Chapman interjecting:

The Hon. J.R. RAU: I know. There is some restraint being shown on the other side about whipping out their bills, but never mind. In respect of the jurisdictional roll in—because that was the last question the deputy leader asked—that is something that has yet to be determined, but there are some that are reasonably obvious candidates, whether they are in tranche 1 or tranche 2, for example, residential tenancies, guardianship and so on—the bigger clusters, if you like.

Ms Chapman: In terms of this appointment?

The Hon. J.R. RAU: Yes. But, because the conversations in detail have not occurred yet with those agencies, because this structural bill is not yet up, we have not advanced that as far as perhaps the deputy leader might have anticipated. We are waiting to see what this looks like, because we are going to take this to each of the agencies and say, 'Here it is. Now we want to have that conversation.'

Ms Chapman: They already are aware it's coming.

The Hon. J.R. RAU: Yes, I think they know it is coming, but all the same. Secondly, I must say that I am personally quite pleased that we have been able to get to this point, because this is something I have had quite a personal passion for all along and it is great that it is here now. As I foreshadowed in the second reading explanation, the bill was introduced prior to the winter recess so that consultation could occur over the winter break.

By a letter dated 23 June 2013, all of the agencies, organisations and individuals consulted by the steering committee were requested by my department to provide comment on the bill. I also extended an open invitation to any other interested person to provide their comment on the bill. As I noted in the second reading explanation, if amendments to the bill were necessary as a consequence of comments received during the consultation period on the bill, that would take place during the winter recess.

Those amendments would be filed during the debate on the bill and, indeed, that is what has happened. I will say a few things in respect of consultation, because I know the deputy leader is interested in these matters as a matter of general course. First and foremost, I want to thank all of the agencies, organisations, bodies and individuals who took the time to consider and provide their comment in relation to the bill.

In particular, I would like to mention these—and I am sure the Deputy Leader of the Opposition will be familiar with some of these names: the Law Society, Mr Stephen McDonald, the Council of Australasian Tribunals SA chapter, Mr Deane Jarvis, Kathy McEvoy of the Housing Appeal Panel, and the Crown Solicitor's Office. All of them offered very useful and helpful suggestions.

In fact, a total of 38 responses and submissions were received during the consultation period on the bill. The feedback received has been invaluable and I am very pleased that so many contributed to the ongoing development of the bill. My department has carefully considered all of the submissions received, and a significant number of comments have informed and given rise to a large number of government amendments that will, if passed, in my view improve the bill in numerous ways.

I will turn now to a general description of the key elements arising from the consultation. This is very important, because it touches on some of the things the deputy leader has raised. The SACAT is to be clearly characterised as a tribunal, not a court. It was evident during the consultation—and this was confirmed by advice I received from the Crown and the Solicitor-General as well—that there was confusion as to the status of the tribunal, as to whether it was a court or a tribunal.

The deputy leader is quite aware of all the case law about whether something is a court or not a court, and it is quite complex and esoteric in some respects. In any event, the government has acted to confirm its status as a tribunal and to remove any ambiguity surrounding this. Accordingly, the government proposes to amend the bill at various clauses—which I will take people to in due course—to remove or modify any provision which is or could be considered to be an exercise of judicial power. In that respect, can I mention just in parentheses that the fact of this being a judicial body now attracts with it all the Kable issues that are causing all sorts of interesting problems throughout our court system, so that is another good reason why this should not be in any way capable of being characterised as a court.

Appointing the president and the deputy president of the tribunal for a term of five years with eligibility for reappointment at the expiration of the term of office: this amendment to the appointment mechanism of the presidential tribunal members underpins the independence of the tribunal and is consistent with the approach taken in most other jurisdictions with a generalist administrative tribunal.

Clarifying and simplifying the treatment of common-law privileges and immunities in the tribunal proceedings: it was submitted during consultation that the provisions of the bill that deal with requirements to produce documents and give evidence, the powers of the tribunal to compel parties and how privilege will be dealt with were complex, particularly by reason of their interaction.

The government has acted to address this by substituting many of these clauses with an amendment to clause 39 that confirms that nothing in the bill affects any right or principle of law relating to legal professional privilege or without prejudice communications or public interest immunity. I am advised that the Hon. Stephen Wade from the other place raised questions about the treatment of legal professional privilege and other privileges and immunities in this bill.

The amendments simplify these issues and will hopefully provide a clearer picture for Mr Wade. For the sake of completeness, however, I confirm that clause 72 of the bill will remain as drafted. Clause 72 of the bill abrogates the privilege against self-incrimination. This is consistent with other jurisdictions, and I invite people to look at section 68 of the State Administrative Tribunal Act in Western Australia.

Ms Chapman: It doesn't make it right.

The Hon. J.R. RAU: Western Australia is a very forward-looking jurisdiction. I am also advised that the Hon. Stephen Wade asked what powers of the SACAT will be prescribed to the rules or regulations—that old chestnut. There are no specific powers proposed or contemplated for rules or regulations at this stage. Rather, we are aware that regulations and rules for equivalent interstate tribunals contain various matters that might, in some cases, constitute powers.

Therefore, the best indication we can give to Mr Wade is that the intention is that we may need to provide for powers or procedural matters in rules or regulations equivalent to those that have been made for the equivalent interstate generalist tribunals. At this stage we cannot be certain, in the absence of knowing exactly which jurisdictions will be assumed by SACAT, that we have included every power or procedure required by the tribunal in the actual bill. We have attempted to do it, but we are contemplating the fact that there may be some revision required.

I would encourage members of this house to support all the government's amendments, which stem from the feedback received from the various agencies, organisations and individuals who are currently working in various areas of administrative law and administrative decision-making. If the house will bear with me I will just read very quickly a complete list of those who produced submissions. This might be of interest to the deputy leader.

They are the South Australian Ombudsman, the Legal Practitioners Disciplinary Tribunal, the Hon. Gail Gago, the Firearms Branch, the Environment Protection Authority, the Minister for Tourism, the Electoral Commission of South Australia, the Public Trustee, non-government schools education and early childhood services, the Courts Admin. Authority, Law Society of South Australia, Mr Ralph Bonig, Housing Appeal Panel, SA Lotteries, Council of Australasian Tribunals SA, Legal Services Commission, City of Campbelltown, Minister for Employment, Higher Education and Skills, Department of Planning, Transport and Infrastructure, Mr Deane Jarvis, Office of the Public Advocate, Commissioner of Police, Health Practitioners Tribunal, SA Health, Teachers Registration Board of SA, Architectural Practice Board of SA, Australian Health Practitioners Regulatory Agency, Public Service Association, Minister for Recreation and Sport, Minister for Sustainability, Environment and Conservation, Super SA, Medical Panels SA, Valuer-General SA, RevenueSA, SA Bar Association, Guardianship Board of South Australia, Department of Planning, Transport and Infrastructure, and the Construction Industry Long Service Leave Board. As you can see, there have been quite a few people who have made contributions.

As foreshadowed a little while ago, I will now, with as much brevity as I reasonably can, go through the amendments and explain each one of them so that there is a record on Hansard of why we are doing what we are doing.

Amendment No. 1: the explanation for this amendment is of a technical nature. It clarifies the definition of 'applicant' in any context other than in the tribunal's review jurisdiction as modified by and to the extent that the rules otherwise provide for that definition to be modified.

Amendment No. 2: this amendment broadens the definition of 'decision' to confirm that this includes an order of the tribunal. Secondly, this amendment clarifies the definition of 'decision', including an order in every instance where it is used in the bill, thereby removing any ambiguity or inconsistency generally.

Amendment No 3: this amendment is necessary to clarify the definition of 'decision'. For the purposes of the bill it will include interlocutory decisions, directions or determinations of the tribunal such as those made under clause 44 of the bill unless they are of a category prescribed in regulations to be excluded from this definition. I note, for the sake of completeness, that the interlocutory decisions, directions and determinations that will be prescribed will be done in consultation with, and the guidance and advice of, the president.

The DEPUTY SPEAKER: It might be more appropriate if you go into the detail of your amendments when we are in committee, but just give an overview at this stage, otherwise you might have to do it twice.

The Hon. J.R. RAU: We don't want to go to committee, do we? We will just do them.

The DEPUTY SPEAKER: You have to go into committee.

Ms Chapman interjecting:

The Hon. J.R. RAU: If I do this, we will go into committee, finish at all, and send it through, is that the idea?

Ms Chapman: Yes.

The Hon. J.R. RAU: Okay. I am doing this in lieu of committee.

The DEPUTY SPEAKER: Alright.

The Hon. J.R. RAU: Alright? Everyone happy?

Ms Chapman interjecting:

The Hon. J.R. RAU: The member for Bragg is happy, that's the main thing. It is not the intention, nor is it appropriate, that an appeal should lie from every interlocutory or procedural decision or direction of the tribunal as this would frustrate the ability of the tribunal to deal with proceedings in a timely, cost-effective and efficient manner.

Amendment No. 4: this amendment clarifies that the definition in clause 3(1) is not an exclusive or restrictive definition of what is to be considered as evidentiary material for the purposes of the bill. Substituting the phrase 'includes' ensures that other evidentiary material not expressly stated in this clause, for example, audio or video recordings, may constitute evidentiary material for the purposes of the bill.

Amendment No. 5: this amendment is consequential to the government's amendment No. 4 and clarifies the second limb of the definition of evidentiary material. Specifically, this amendment clarifies and broadens the definition to include any other document, object or substance of evidentiary value that is not currently in proceedings before the tribunal and that is material that should in the opinion of the tribunal be produced for the purpose of enabling the tribunal to determine whether or not it has evidentiary value.

Amendment No. 6: this is a consequential amendment related to government's amendments Nos 48 and 71. The definition of 'exempt documents', that is, documents exempt under the Freedom of Information Act, are relevant to the operation of clauses 70 and 71 of the bill, which the government proposes to delete at amendment No. 71, for reasons that I shall now explain.

During the consultation process on the bill, a comment made by a number of those consulted was the inconsistent and complex interaction of common law rights such as legal professional privilege, 'without prejudice privilege', and public interest immunity throughout a number of clauses in the bill. It was submitted to the government that these complexities were at odds with the objectives of the tribunal to ensure its procedures are simple and easily understandable to members of the public.

In response to these comments, the government will propose at amendment No. 48 to confirm beyond doubt that nothing in this bill will affect any existing common law rule or principle relating to legal professional privilege or, in other words, without prejudice privilege, or public interest immunity. In other words, these common law rights will be protected and apply to all proceedings before the tribunal. As a consequence of that amendment No. 48, clauses 70 and 71 are proposed to be deleted. Clause 70 establishes a scheme for dealing with disclosures that are contrary to the public interest and clause 71 sets out the tribunal's duties as to any protected matter.

The treatment of executive documents was addressed in clause 71, which is now redundant by virtue of the government amendment No. 48. Mr Deputy Speaker, can I pause here to ask can anybody think of any possible procedural manner by which I can simply hand all of this up and it is incorporated into Hansard because, if you can, I am ready, willing and able to do that. Otherwise, I will keep reading.

The DEPUTY SPEAKER: Not so easy.

The Hon. J.R. RAU: Does somebody want to demand that I table these documents? Would that get me over the line?

Mrs Geraghty: I could do that if I am forced.

The Hon. J.R. RAU: Okay, I am seeking assistance here.

The DEPUTY SPEAKER: I am advised that you need to read them because there needs to be an explanation of them.

The Hon. J.R. RAU: Never mind, I had a crack at it. I will keep going then. Are you sure that somebody didn't say am I reading from a document and I must table it?

Mr Pederick: No, it is copious notes.

The Hon. J.R. RAU: It is certainly copious. Here we go. It was nice to have a break. Amendment No. 7: this is related to amendment No. 6 and seeks to delete the definition of 'protected matter' from clause 3 of the bill. The definition of 'protected matter' is relevant to the operation of clause 71 of the bill for the same reasons outlined in amendment No. 6. It is proposed to delete clauses 70 and 71 by government amendment No. 71. The deletion of the definition of 'protected matter' is consequential to government amendment Nos 48 and 71.

Amendment No. 8: this amendment is necessary to ensure consistency between clauses 42(3) of the bill, which relates to expert reports, and clause 3(4), which defines who is considered an officer of the tribunal. Clause 42(3) of the bill states that a person to whom a question is referred under the section becomes an officer of the tribunal and may exercise such powers of the tribunal as the tribunal delegates. Currently, at clause 3(4) of the bill, this is not reflected in the definition as to what constitutes an officer of the tribunal. This amendment rectifies this oversight.

Amendment No. 9: this amendment is a direct result of feedback received during the consultation on the bill. Those who provided comment stated that the meaning of this phrase was ambiguous and that exercises of administrative power by the tribunal, including exercises of merits review jurisdiction, are arguably not in the field of administrative law but in the administration of the law of the state. Accordingly, the government has acted to remedy this and to substitute this with a clear and efficient objective for the tribunal, namely to promote the best principles of public administration.

Amendment No. 10: this amendment arises from comment received during the consultation at clause 8(e) of the bill regarding straightforward language and procedures of the tribunal leading to a reduction in the need for legal representation and was inconsistent with 56(1)(b) which provides that subject to the provisions of a relevant act, parties before the tribunal are entitled to be legally represented. To address this inconsistency, clause 8(e) of the bill will retain the objective that the tribunal use plain language and straightforward procedures but will be amended so as to include the additional objective that the tribunal, insofar as is reasonably practical and appropriate, use simple and standardised forms. Using simple and standardised forms where possible will go a long way to making access to the tribunal for a range of administrative decisions or reviews a much more straightforward experience and process.

Amendment No. 11: this amendment clarifies that the reference in clause 8(g) of the bill to flexibility in the way in which the tribunal conducts its business, and to adjust its procedures, is not applicable only to particular cases before the tribunal, but it should extend further to a particular jurisdiction or type of matter as evidenced in clause 27 of the bill. The president of the tribunal, once appointed, will have the ability to establish streams to reflect the areas of jurisdiction of the tribunal, and I think this addresses something that the member for Bragg was asking about a moment ago. This amendment will make it clear that different procedures can be used for different types of matters or jurisdictional streams.

Amendment No. 12: this amendment seeks to amend clause 10(1) of the bill to use the term 'appointed' rather than 'assigned'. This is a consequential amendment connected to the government's amendment No. 13 which proposes to amend clause 10(3) of the bill to provide for appointing a president of the tribunal for a fixed term of five years by inserting subclause 3(a). The importance of enshrining legislation for a fixed term of five years for presidential members of the tribunal was the primary concern raised by those who provided feedback in relation to the bill. The rationale for this was that creating a fixed term, as opposed to assigning a role by the Governor without a fixed term, underpins the independence of a presidential member.

It was submitted by a large number of contributors that a fixed term of five years ensured independence of presidential members of the tribunal due to their tenure being secured for a fixed period. Fixed tenure is also consistent with the appointment mechanism for presidential members in other jurisdictions with equivalent tribunals.

Amendment No. 13: this amendment is connected, not surprisingly, to amendment No. 12. As I explained in relation to that amendment, this amendment provides for the appointment of a judge as president of the tribunal for a term of five years, with the person being eligible for reappointment at the expiration of that term. This amendment was a direct result of feedback received during the consultation period. The government has been influenced by the weight of submissions in favour of a presidential member being appointed for a fixed term of five years, and this amendment is evidence of the government's making the necessary changes arising from that important feedback.

Amendment No. 14: this amendment is consequential on amendment Nos 12 and 13. Amendment No. 15: this amendment is a further measure designed to strengthen and reinforce across the bill the independence of the presidential members of the tribunal. The amendment achieves this by clarifying that, in cases where the president does receive an additional component to their salary or allowance as a judge, pursuant to clause 10(5) of the bill, the additional salary or allowance will not be able to be reduced during the president's term. I note for the sake of completeness that the same amendment is proposed to be made by the government by amendment No. 23 to clause 14(5) of the bill in relation to a deputy president's salary or allowances as a judge.

Amendment No. 16: in order to be eligible for appointment to the role of president, a person must be either a current sitting Supreme Court or District Court judge. As set out in the bill, in order to provide maximum flexibility, the role of president of the tribunal can be undertaken either on a full-time or part-time basis. The appointment of a judge as a president of the tribunal does not affect, amongst other matters, the judge's tenure of office or status as a judge. Clause 10(6) of the bill sets out the grounds upon which a person ceases to be a president of the tribunal. Clause 10(6)(b) confirms that a person ceases to be president of the tribunal if they resign by written notice to the Attorney-General.

Accordingly, as currently drafted, a person who is appointed but at some point resigns from the position would maintain their tenure and status as a judge. In other words, the person may elect to resign as president of the tribunal but would retain their appointment as a judge of either the Supreme Court or the District Court.

This amendment seeks to insert an additional requirement of concurrence of the Chief Justice or the Chief Judge, as the case requires, prior to resignation. This will ensure that appropriate workloads and practical considerations can be taken into account by the Courts Administration Authority to accommodate a return by the judicial officer to the bench from their role as the tribunal president, or deputy president, for that matter.

Amendment No. 17: this amendment arises from the previous government amendments to abandon the ability of the Governor to assign a judge of the Supreme Court or the District Court by proclamation to be president of the tribunal in favour of appointment to the role for a term of five years. A consequential amendment that is now necessary is to delete clause 10(6)(c) of the bill and substitute it with mechanisms to address circumstances that will cause that appointment to cease. Accordingly, this amendment seeks to substitute clause 10(6) of the bill. The following additional grounds upon which a person ceases to be president of the tribunal are as follows:

the person completes a term of office and is not reappointed; or

the appointment is revoked by the Governor on the recommendation of the Attorney-General for mental or physical incapacity to carry out the duties; or

neglect of duty; or

dishonourable conduct; or

if the person, obviously, dies.

It is important with any amendment to a role of public office that a measure exists to revoke such an appointment should there be a sound and justified reason to do so. The government considers the grounds which are the subject of this amendment as appropriate. It should also be borne in mind that independence is still preserved by the fact that presidential members are judges and may be removed as judges only by addresses of both houses of parliament, pursuant to removal provisions in the Constitution Act and the District Court Act respectively.

Amendment No. 18: this is a technical amendment consequential to amendment No. 17 to clarify that, should a person who holds a position of presidential member resign, not be reappointed to the role of president at the expiration of the five-year term, or have their appointment revoked by the Governor, their tenure and status as a Supreme Court or District Court judge is not affected.

Amendment No. 19: this is the same as outlined in amendment No. 12 but relates to the deputy president. The amendment seeks to amend clause 14(1) of the bill to substitute the words 'assigned' and 'appointed'. I do not think I need to repeat all of that. Amendment No. 20: this amendment replicates amendment No. 13 and applies to the deputy president. Again, I do not think I need to repeat that. Amendment No. 21: this amendment is consequential to amendment No. 20.

Amendment No. 22: this amendment is consequential to government amendments Nos. 19, 20 and 21. Amendment No. 23: this amendment mirrors the government amendment No. 15; however, it only applies to a deputy president who is, at the time of appointment, a District Court judge. As I have previously explained, this is a measure designed to strengthen and reinforce the independence of the presidential members of the tribunal from any perception of executive interference.

Amendment No. 24: this amendment clarifies that, in the case where an appointed deputy president is not a judge of the Supreme or District Court, pursuant to 14(1)(b) of the bill, any salary or allowances paid to the person are not able to be reduced during their term as deputy president. A person who is appointed under 14(1)(b) does not hold concurrent office as a judge of either the District or Supreme courts. It is necessary to provide a mechanism to address the circumstance where a person desires to change from full-time to part-time in their role as deputy president, as is permitted under the bill. Should such a circumstance arise, it is necessary to permit a reduction in salary and allowances to reflect the reduction in working hours—so, it is materially different to the judge. This amendment achieves this.

Amendment No. 25: this amendment is consequential to No. 20, to abandon assignment by proclamation of a deputy president in favour of appointment for a term of five years. Given this, in order to be consistent with government amendment No. 17—the president of the tribunal—clause 14 of the bill requires mirror provisions to apply to deputy presidents. In summary, this amendment removes all references to assignment and sets out the grounds that will cause the appointment of the role of the deputy president to cease—that mirrors the presidential provisions.

Amendment No. 26: I note, for the sake of completeness, that both limbs of this proposed amendment relate only to a person who is a District Court judge appointed to the role of deputy president. The first limb is consequential to amendment No. 25 that clarifies that, should a judge of the District Court resign from the role of deputy president or not be reappointed or have their appointment revoked, their tenure and status is not affected. In relation to the second limb of this amendment, for the same reason given for government amendment No. 16, regarding resignation of the president, it is proposed to insert an additional requirement that a judge of the District Court secure the concurrence of the Chief Judge.

Amendment No. 27: this amendment is consequential to No. 25. Amendment No. 28: this is the first of a few government amendments that relate to clause 19 of the bill, that concern the appointment of senior and ordinary members of the tribunal. Upon further consideration of this clause, it became evident that it was unnecessary to impose a mandatory requirement for the minister to appoint a panel of persons to perform prescribed functions in relation to the appointment of senior and ordinary members of the tribunal. This is because there may not need to be a need to do so at a particular point in time, due to there being no vacancy for tribunal members. This amendment simply provides that flexibility to the minister to appoint a panel of persons for the purposes set out in clause 19, as and when required.

Amendment No. 29 is a technical amendment, due to correcting a drafting error. Amendment No. 30: this proposes to delete subclause (3) and arises from the feedback received during the consultation period that it was unnecessary and unduly prescriptive. The majority of the feedback received regarding 19(3) of the bill was supportive of leaving the technicalities of an appointment process for senior and ordinary members of the tribunal to the president to manage. In short, some submissions considered it unnecessary to state in the bill the requirements to advertise for applications. I, frankly, have some sympathy with that. This is considered to be a standard approach across most public sector recruitment processes. The deletion of subclause (3), as proposed in this amendment, simplifies the appointment process.

Amendment No. 31: this amendment is consequential to amendment No. 28. Amendment No. 32: this is consequential to No. 28 as well. Amendment No. 33: this amendment corrects a drafting error in clause 22(4) and removes any suggestion that there is to be more than one president of the tribunal. Amendment No. 34: this is a technical amendment to delete reference in 23(2) of the bill to the phrase:

(unless a relevant Act provides otherwise)

Clause 4 of the bill already confirms that;

(4) If there is an inconsistency between this Act and a relevant Act, the relevant Act prevails to the extent of the inconsistency.

Accordingly, given the clarification in clause 4 of the bill as to the interaction between the legislation that will in due course confer jurisdiction on this tribunal and the provisions of this bill, it is unnecessary to continue to make this clarification as various clauses throughout the bill.

Amendment No. 35: this amendment arises from the weight of feedback received during the consultation about clause 23(3), which provides a range of relevant considerations that the president of the tribunal must consider in determining the constitution of the tribunal for a particular matter before it.

A range of commentators submitted to the government that clause 23(3) of the bill was unduly prescriptive, and could invite challenge as to the constitution of a particular panel. The general consensus of those who provided comment on clause 23(3) of the bill was that it was unnecessary, because it is safe, in the absence of such a provision, to rely on the president to allocate the work of the tribunal appropriately.

Amendment No. 36: as currently drafted, clause 26 of the bill requires that questions of law before the tribunal are to be decided in accordance with the opinion of the most senior legally trained member. If there is no legally trained member, then the presiding member is to refer a question of low to a presidential member of the tribunal.

Clause 26 of the bill was one of the most significant matters arising from consultation, with those commenting indicating that the separation of questions of law and fact is complex and notoriously difficult (as I am sure the member for Bragg knows). This is because the concept of a question of law, as used in clause 26 of the bill, is capable of a number of different meanings. For example: it could be construed as including a mixed question of law and fact; it could be construed as meaning limited to a question of law that arises independently of any fact; or, a question requiring the tribunal to identify and separate out questions of law from questions of fact.

It was submitted during the consultation that clause 26 as currently drafted will be highly inconvenient and will invite challenge. This is because most if not all matters to be determined by the tribunal will involve a range of legal issues. Many if not most of those legal issues will not be contested or controversial, but clause 26 of the bill as currently drafted will nonetheless require the tribunal to consider an answer to those issues, either by way of express consideration or by inference.

It was submitted during the consultation that a failure to correctly identify all legal issues before it, or identify an issue that is not properly characterised as a legal issue, will then fall into error under clause 26 and invite our old friend judicial review, or a challenge by an aggrieved party. It is for these reasons that the government seeks to simplify the process set out in clause 26 by deleting subclauses (1) to (8).

I note that this is consistent with the objectives of the tribunal as set out in clause 8 of the bill. Instead, the government proposed to simply provide that a question of law may be referred to a presidential member of the tribunal. This change removes all of the complexity and ambiguity discussed and simply empowers the members of the tribunal constituting the tribunal to form a view about the applicable law, whether legally qualified or not, with a mechanism to seek assistance on a question of law if there is a need to do so.

Amendment No. 37: this is consequential on amendment No. 36. Amendment No. 38: this is necessary for consistency with clause 81(b) of the bill, which confirms the range of persons upon whom the president of the tribunal may delegate a function or power under this or any other act.

Amendment No. 39: this amendment is consequential to amendment No. 73 and others which seeks to substitute the use throughout the bill of the term 'review' where the tribunal is reviewing its own decisions in favour of 'internal review'. It was submitted during consultation that the use of the word 'review' in the context of the tribunal reviewing its own original decisions was confusing and unnecessarily technical, when one considers the objectives of the tribunal as set out in clause 8 of the bill. Amendment No. 40: this government amendment is consequential to the government amendment 41, and applies to the exercise of the tribunal's review jurisdiction only.

Amendment No. 41: as currently drafted, the review jurisdiction of the tribunal is limited to reviews by way of rehearing which do not involve a right to introduce new evidence unless the tribunal considers in a circumstance of the particular case to admit for the purpose of rehearing the matter. There are strong public policy reasons for this approach being taken when considering the appropriate model for the tribunal's review jurisdiction. During consultation, however, it was submitted that a review by way of rehearing as currently proposed may inadvertently fail to cure defects in original decisions that would have ordinarily been cured by hearing de novo—which is not a bad point.

The consequent effect of this is that the tribunal will not necessarily come to the preferable decision, but may defer to a less than ideal original decision where no error can be discerned. Clearly, this outcome is undesirable. In order to address this, the notion of the review process requires clarification to state that, on re-hearing, the tribunal must reach the correct or preferable decision, but in doing so, must have regard to and give appropriate weight to the decision of the original decision-maker.

Ms Chapman: Gobbledegook.

The Hon. J.R. RAU: The way I understand all of that is basically to say this: if there is a decision by a functionary at first instance, and that decision is to be reviewed by the tribunal, if the functionary at first instance did not have regard to all relevant material informing their decision, and the only thing the review authority can do is have regard to what the functionary had before them, then the review authority may be constrained in coming to the best outcome. That is the way I understand the proposition. We are getting down to dancing on pinheads here.

What we did not want to do was have open-slather hearing de novo, for obvious reasons, so what we are trying to do is achieve a limited rehearing or review, but not so limited that manifest absurdities cannot be corrected that occurred at the base level when it is being reviewed. That is effectively what we are trying to achieve.

Amendment No. 42: this amendment is a technical amendment to incorporate the word 'procedure' when describing a rehearing for the purpose of clause 34 of the bill. Amendment No. 43: this amendment relates only to proceedings before the tribunal in an exercise of its review jurisdiction—in other words, whether the tribunal reviews a decision already made by a person or agency. The intention of this amendment is to accommodate the varying situation where it may be thought desirable to stay or vary the operation of a reviewable decision. Whilst it is possible that clause 36 of the bill, as currently drafted, could be interpreted as including this power, this amendment removes any doubt as to this matter.

Amendment No. 44: as per the last amendment, this amendment relates only to when the tribunal is exercising a review jurisdiction, and specifically what the tribunal may do on a review of an original decision made by another agency or person. Specifically, this amendment clarifies that orders can be made on an interim basis, pending the reconsideration and determination of the matter by the original decision-maker. Amendment No. 45: this is a technical amendment to correct a drafting error.

Amendment No. 46: this amendment relates to the power given to the tribunal to invite the original decision-maker to reconsider a decision that is currently the subject of a proceeding before the tribunal in the exercise of its review jurisdiction. This is necessary to ensure that when a matter is in fact returned to an original decision-maker by the tribunal, pursuant to clause 38, a timeframe can be set, where appropriate to do so, so as the tribunal's expectation regarding the finalisation of the matter by the original decision-maker is achieved. This provides clarification for not only the party that is seeking a review of the original decision, but equally places the original decision-maker on notice as to the expectation of the tribunal in terms of the urgency with which the matter received, pursuant to clause 38 of the bill, should be given.

Amendment No. 47: This amendment is consequential to government amendment 92, which proposes to delete clause 95 of the bill. Clause 95 of the bill, as drafted, relates to contempt. As I stated in my second reading reply, a large number of submissions considered the characterisation of the tribunal as a court or a tribunal in the bill, as currently drafted, to be ambiguous. This view was argued on the basis that there were some clauses of the bill which could be considered to be an exercise of judicial power.

Clause 95 of the bill was one of the provisions in the bill identified as being able to be called in aid in an argument that the tribunal is a court, obviously, because it effectively gives the orders of the tribunal the force of those of the court. Accordingly, if the government proposes to delete clause 95 of the bill, clause 40(9) of the bill is no longer required.

Amendment No. 48: as I stated in government amendment No. 6, this amendment was borne out of consultation to address the concerns raised that there was an inconsistent and complex interaction of common law rights such as legal professional privilege without prejudice, public interest immunity and so on. This amendment proposes to confirm beyond doubt that nothing in this bill will affect any existing common law rule principle relating to legal professional privilege, without prejudice privilege, or public interest immunity. In other words, these common law rights will be protected and applied to all proceedings before the tribunal.

As a consequence of this amendment, clauses 70 and 71 of the bill are proposed to be deleted. I note that for the sake of completeness, however, that the abrogation of the privilege against self-incrimination at clause 72 of the bill will not be affected by clause 39 as amended, nor will it limit the operation of clause 73.

Amendment No. 49: clause 40 of the bill sets out the power of the tribunal on an application by another party of his own motion to issue a summons requiring a person to appear before the tribunal to give evidence or produce a document. Clause 40(4) of the bill makes it an offence if a person who is called to give evidence or produce evidentiary material to the tribunal refuses or fails to do one of the following: make an oath or an affirmation; produce evidentiary material they are required to produce; give evidence or otherwise refuse or fail to answer questions; give false or misleading evidence; or misbehaves or wilfully interrupts the proceedings of the tribunal.

During consultation it was brought to my attention that clauses 40(4)(b) of the bill includes the 'without reasonable excuse' proviso. In other words, it would not constitute an offence under clause 40(4)(b) of the bill where a person refused or failed to produce evidentiary material as required if the person in question had a reasonable excuse. This is appropriate and sound. Accordingly, it was submitted during the consultation that for consistency, 'without reasonable excuse' should also be applied to the offence created in clause 40(4)(a), which is the offence of refusing or failing to take an oath or affirmation when required to do so.

I note, for the sake of completeness, that the same amendment is proposed for clause 40(4)(c) and (4)(d). It will now, however, be applied to the offences created under clause 40(4)(e) and (4)(f) as there are no grounds upon which to justify or allow either giving of false or misleading evidence or misbehaving or wilfully interrupting the proceedings of the tribunal.

Amendment No. 50 is connected to the government's amendment No. 49 and is proposed for the same reasons I have just explained. Amendment No. 51 is connected to 49 and 50, and I will not repeat myself. Amendment No. 52 is the amendment which applies to clause 40 of the bill and increases the maximum penalty to a fine of $25,000 or imprisonment for a year. If a person is called to give evidence or produce evidentiary material, refuses or fails without reasonable excuse so to do it is the same penalty as proposed in the amendment and will apply to the offences of giving false, misleading evidence and misbehaving before the tribunal.

The offences set out in clause 40(4) of the bill are an important mechanism to ensure that all aspects of the proceedings of the tribunal are complied with by the party. Where a failure to do so constitutes one of the offences in clause 40(4) of the bill, the person is liable to be prosecuted. It is therefore important that the maximum penalty for an offence constitutes a summary offence to act as a measure to reinforce the weight and authority of tribunal proceedings and the need for parties who appear there to comply.

Amendment No. 53: this amendment relates to clause 40, but deletes subclauses (5), (6) and (7), which provide powers to order persons to produce to the tribunal documents or materials relevant to proceedings. Subclauses (5), (6) and (7) of clause 40 provide a mechanism for the tribunal to seek an order from the Supreme Court to direct the person attend, or that the material be produced, or that an oath or affirmation be made, or the question put by or before the tribunal be answered and, on that application, the Supreme Court may make such orders as the court thinks fit. This is a function of it not being a court, obviously.

As a result of submissions received during consultation, the government considers it necessary to abandon the mechanism for the tribunal to seek enforcement from the Supreme Court of its powers under clause 40 of the bill. This is because clause 40, subclauses (5) to (7) as drafted could contribute to the characterisation of the tribunal as a court. By seeking enforcement in the Supreme Court, it might be argued to give orders of the tribunal the force of that court. I note for the sake of completeness that the tribunal will instead be relying on the summary offences created under clause 40(4) of the bill to provide the mechanism by which the tribunal can address those instances when a person refuses to comply with the powers and procedures.

Amendment No. 54: this amendment is consequential to government amendment No. 92, which proposes to delete clause 95, which provides a measure to address contempt of tribunal proceedings. Under clause 95 of the bill as drafted, it is proposed that the president of the tribunal may deal with any act or omission that would constitute contempt of court if the proceedings were before the Supreme Court. Further, the president of the tribunal may refer the matter to the Supreme Court or deal with the matter as a judge of the court of which he or she is a member. Clause 95 as drafted relates to contempt.

As I have stated in my second reading reply, a large number of submissions considered the characterisation of the tribunal as a court or tribunal to be ambiguous, and that there were some provisions in the bill that could be considered to be an exercise of judicial power. Clause 95 of the bill was one of the provisions in the bill identified during consultation that could be called in aid of an argument that the tribunal was indeed a court, which is not the intended characterisation of the tribunal. Accordingly, the government proposes to delete clause 95 of the bill. This amendment proposes to delete clause 40(9) as it relates to the interpretation and operation of clause 95.

Amendment No. 55: this amendment relates to the power of the tribunal to refer any question arising in any proceeding for investigation or report by an expert in the relevant field. Specifically, clause 40(5) of the bill as currently drafted provides that rejection of a report does not prevent the tribunal from making a further reference to an expert. It was submitted during consultation on the bill that it may also be warranted to clarify the converse scenario—that is, when the tribunal adopts a report in whole or in part. This amendment achieves this clarification to ensure that, whether the tribunal rejects, adopts in whole or in part an expert report ordered pursuant to clause 42 of the bill, it does not prevent the tribunal from making a further reference to the expert in the proceedings.

Amendment No. 56: clause 43 of the bill sets out the approach to be taken to tribunal practices and procedures generally in any of its jurisdictions. This amendment seeks to exclude references in clause 43(d) of the bill that the tribunal ensures parties have the opportunity to call or give evidence and to examine, cross-examine or re-examine witnesses. Instead, it is proposed to substitute a simple and straightforward measure that places the onus on the tribunal to ensure that the parties are heard or otherwise have their submissions received.

While it is to be expected that parties, particularly in the tribunal's original jurisdiction, would be enabled to test evidence, it was the view of some who provided comment on clause 43 of the bill during consultation that, generally speaking, the approach taken by the tribunal in respect to testing evidence would be on an inquisitorial rather than an adversarial basis. For example, it was submitted that such testing of evidence given in tribunal proceedings would be done through the presiding tribunal member rather than in a more adversarial form of cross-examination between the parties. Consideration and comment was also given as to whether clause 42(3)(d) as drafted was consistent with the objectives of the tribunal and the principles governing the hearings, as set out in clauses 8 and 39 of the bill respectively. This amendment ensures that there is no inconsistency with other provisions of the bill and simplifies the approach to be taken in proceedings.

Amendment No. 57 is a technical amendment to confirm that an adjournment of the tribunal proceedings can be made at any time during the proceedings and to any place.

Amendment No. 58: this amendment concerns clause 44 of the bill which enables the tribunal to give directions and to do other things to enable the proceedings to be as fair and expeditious as possible. This amendment is consequential to government amendments Nos 48 and 71 which propose to uphold common law rights with respect to legal professional privilege, etc. The practical effect of this amendment, if passed, is that any direction given by the tribunal pursuant to clause 44 of the bill will be subject to the parties being able to seek and rely upon the common law rights that were expressly protected at government amendment No. 48.

Amendment No. 59: clause 48 empowers the tribunal to order the proceedings to be dismissed or struck out if the tribunal believes that a proceeding is frivolous or vexatious, is being used for an improper purpose or is otherwise an abuse of process. This amendment proposes to provide a further ground upon which a proceeding can be dismissed or struck out and that is if the proceedings involve a trivial matter or amount. This amendment achieves consistency with recent amendments made to the Residential Tenancies Tribunal proceedings under section 32 of the Residential Tenancies (Miscellaneous) Amendment Act 2013.

Amendment No. 60: clause 50(2) of the bill as drafted imposes a duty on the tribunal to require parties to attend a compulsory conference if required by the rules or a relevant act. Clause 50(3) is intended to allow the tribunal to dispense with that requirement whether it be found in the rules or in the relevant act. However, clause 4 of the bill provides that, in the event of an inconsistency between the relevant act and the bill, the relevant act prevails. As clause 50(3) of the bill is intended to allow the tribunal to override a duty imposed by a relevant act, it is necessary to include a provision clarifying the intention by excluding what would otherwise be the operation of clause 4 of the bill in relation to that duty.

Amendment No. 61: this amendment is necessary for efficiency and completeness. Clause 50(8) of the bill allows the tribunal to refer any question of law to a presidential member. It was submitted during consultation that clause 50 of the bill should also provide a mechanism that, in the event that a question of law is referred to a presidential member under clause 50(8) of the bill, the president should be able to refer the question to the Supreme Court in circumstances where the question of law is unable, for what ever reason, to be dealt with by the president.

Amendment No. 62: as stated in previous amendments, clause 50 of the bill empowers the tribunal to hold private compulsory conferences to identify and clarify issues and promote settlement of disputes. Whilst it may not be the case for all disciplinary proceedings before the tribunal to be referred to a conference or mediated pathway, based on the experience of other jurisdictions, particularly in WA, some are resolved by these means.

Accessing mediated pathways to resolve a disciplinary matter is understandable when one considers the onus on those bringing professional misconduct proceedings to take into account the principles of the model litigant rules that require consideration of options to avoid unnecessary litigation, costs, delays and the obvious benefit in resolving matters.

Where disciplinary proceedings are referred to a compulsory conference pursuant to clause 50 of the bill and are resolved, there are strong public policy reasons that the outcome of such proceedings be made public on the basis of being in the public interest. This amendment clarifies that the rules may prescribe a category of proceedings for which the outcome of conciliation is to be made public.

Amendment No. 63: clause 51 of the bill, as drafted, enables matters dealt with in a directions hearing or compulsory conference to be referred, with or without the parties' consent, for private mediation. For the same reasons explained at amendment No. 62, it is proposed to amend clause 51 to clarify that the rules may prescribe a category of mediation proceedings for which the outcome is to be made public.

Amendment No. 64: clause 52 of the bill allows the tribunal to make orders giving effect to parties' written agreements to settle proceedings where the tribunal would otherwise have power to make a decision in accordance with that settlement. This amendment provides an additional ground upon which the tribunal may reject a settlement pursuant to clause 52 of the bill and that is if the terms of the settlement are inappropriate.

Amendment No. 65: clause 56 of the bill deals with representations before the tribunal. It permits representation personally or by counsel or, by leave of the tribunal and subject to the rules, by other representative. Clause 56(2) permits a person appearing before the tribunal to be assisted by another person as a friend. There are three key aspects to this amendment, so I will begin firstly by explaining the background of the proposal to delete subclause (3). Clause 56(3) of the bill was intended to address any disadvantage where only one of the parties to a dispute is represented. In such circumstances, 56(3) states that a tribunal must adopt an inquisitorial approach.

It was submitted during consultation on the bill that this was not appropriate as it may give rise to technical appeals. Other submissions indicated that the tribunal should in all cases adopt an inquisitorial approach, not just in these circumstances and, as such, it was unnecessary to make special reference to this in the context of clause 58(3) of the bill. The government agrees with the comments made in relation to clause 56(3) during the consultation and proposes in this amendment that it be deleted.

With respect to the second aspect of this amendment, it is proposed to clarify the interplay between clause 56(1)(c) of the bill and the Legal Practitioners Act. Section 21(2)(e) of the Legal Practitioners Act prohibits an unqualified person from representing any party to proceedings in a court or tribunal. Section 21(3)(g) of the Legal Practitioners Act permits an unqualified person to represent a party in a court or tribunal for fee or reward 'if the person is authorised by or under the Act by which the court or tribunal is constituted, or any other Act, to do so'.

The concern raised during the consultation was that, despite clause 56(1)(c) not expressly authorising acting for fee or award, there is a substantial risk that potential lay advocates may not appreciate this. It was never the government's intention to permit unqualified or lay advocates to act on behalf of a party in the tribunal's proceedings for fee or reward. Accordingly, the government considers it necessary to clarify this with this amendment.

Finally, this amendment seeks to insert an exclusion preventing a person acting as a representative in proceedings before the tribunal if the person is a legal practitioner whose practising certificate has been suspended, or the person's name has been struck off the roll, or the person would be acting in any manner that is inconsistent with disciplinary proceedings that have been taken under the Legal Practitioners Act.

No. 66: this amendment corrects a drafting error in clause 57. No. 67: this amendment is to clause 58(1) of the bill which, as drafted, confirms the tribunal's power to make an order for the payment by a party at the cost of another party and includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience or embarrassment resulting from any proceedings in this matter. This amendment proposes to delete reference to 'inconvenience or embarrassment'.

This arises from comments received during the consultation on the bill that the scope of the concept of 'embarrassment or inconvenience' in this context is ambiguous and may attract unmeritorious applications that could give rise to significant expense and delay to defend and resolve cost matters in dispute. In short, there is a risk that an application for costs awarded on the basis of inconvenience or loss may of itself act as a disincentive to use the tribunal, thereby undermining the objectives that gave rise to it being created.

Clause 64 as drafted enables the tribunal to make binding declarations or rights whether or not any consequential relief is or could be claimed. For reasons outlined in my second reading reply, it has been necessary to remove the provisions of the bill that may be considered an exercise of judicial power to avoid the tribunal being characterised as a court. Clause 64 is one of the provisions that can be considered to be an exercise of judicial power and should be deleted on this basis.

No. 69: this amendment corrects a drafting error. No. 70: clause 69 of the bill as drafted permits a person who no longer holds office as a member of the tribunal to continue to act in the relevant office for the purpose of completing part-heard proceedings. There are practical reasons for including this measure in the bill; however, as drafted clause 69 of the bill can be interpreted to allow a former tribunal member who was removed from office due to dishonourable conduct being permitted to continue to act to complete a part-heard matter. This is clearly inappropriate and not the intention of clause 69. This amendment expressly excludes such a person.

No. 71: under clause 70 of the bill the Attorney may certify that disclosures of certain information because of specified reasons, including national security or damage to intergovernmental relations, would be contrary to the public interest. Further, clause 70 enables the President to order that the disclosure of such information is not contrary to the public interest. Clause 71 of the bill provides that the tribunal ensures that protected matter provided to it is not disclosed in any way other than to a sitting member of the tribunal. This amendment is consequential to government amendment No. 48 and proposes that both clauses 70 and 71 of the bill be deleted.

Government amendment No. 48 amended the bill to confirm beyond doubt that nothing in this bill will affect any existing common law rule or principle regarding privilege. A separate scheme to address public interest immunity as was proposed in clauses 70 and 71 is now redundant and should be deleted.

No. 72: this amendment is consequential on amendments Nos 48 and 58. No. 73: this amendment is connected to the government's amendment No. 39 and proposes to substitute the term 'review' where the tribunal is reviewing its own decisions in favour of 'internal review'. It was submitted during consultation that the term 'review', as we have already heard, was confusing.

No. 74: clause 74 of the bill makes provision relating to review or appeal against decisions of the tribunal for the same reasons outlined at government amendment No. 34. This is a technical amendment to delete the reference in clause 74(1) of the bill to the phrase 'and to any provision of a relevant act as to the review or appeal against a decision of the tribunal'. Clause 4 of the bill already confirms that, if there is an inconsistency between this and the act, the relevant act prevails to the extent of the inconsistency. Accordingly, given the clarification in clause 4 of the bill, it is unnecessary to replicate this at clause 74(1).

No. 75 is a technical amendment to clarify beyond doubt that, in cases where the tribunal exercises discretion to dispense with the requirement that an application for review must be instituted within one month of the making of the decision to which the application relates, this discretion can be exercised even if the time for instituting the application has expired.

No. 76: this amendment is connected to government amendment No. 41 and for consistency applies the same requirement upon the tribunal when undertaking an internal review of an original decision made by the tribunal. As I explained at government amendment No. 41, during consultation it was submitted that a review by way of re-hearing may inadvertently fail to cure defects and original decisions, and I think we have already canvassed that topic.

No. 77: this amendment relates only to when the tribunal is exercising its internal review jurisdictions. Specifically, this amendment clarifies that orders can be made on an interim basis pending the reconsideration or determination of the matter, for example, to stay the operation of the decision under review.

No. 78: clauses 74(3) and 74(5) provide a prescriptive method by which review panels are to be appointed for the purpose of undertaking an internal review of the original decision. During consultation, those submissions that considered this clause thought it to be unduly prescriptive and considered it preferable for clause 74 to provide that the president may constitute review panels as he or she sees fit. This amendment achieves this purpose. I note for the sake of completeness that this amendment is also necessary to ensure consistency with government amendment No. 35, which deleted the prescriptive method by which tribunal panels were reported for the purpose of undertaking reviews of external decisions.

No. 79: this amendment is consequential to amendment No. 2, which amends the definition of 'decision' for the purposes of the bill to include order. No. 80: under clause 75 of the bill, appeals from decisions of the tribunal are aligned to the Supreme Court. As was the case with government amendment No. 75, this is a technical amendment to clarify beyond doubt that, in cases where the Supreme Court exercises discretion to dispense with the requirement, then an appeal must be instituted within one month of making the decision to which the appeal relates, and that this discretion can be exercised by the Supreme Court even if the time for instituting the appeal has expired.

No. 81: this amendment seeks to insert the word 'interim' to subclause (5). By doing so, this will allow the ability, for example, for the tribunal to vary decisions made by the tribunal. No. 82: this is a consequential amendment to amendment No. 2 which amends the definition of 'decision'. No. 83: clause 77 of the bill enables the Supreme Court or the tribunal to stay the operation of the tribunal decision while the Supreme Court decides whether to grant leave to appeal and, if so, while it decides the appeal. This is a consequential amendment to government amendment No  84 but it is necessary to explain in this amendment why it is required.

It was submitted during consultation that relevant decisions should be defined for the purposes of this clause to include both the decision of the tribunal under review and any original decision, whether of the tribunal or the decision maker, that was the subject of review by the tribunal. It was submitted that a failure to do so may have the practical effect of preventing the original decision operating, according to its own terms, while the appeal from the tribunal's review decision was still being heard by the Supreme Court. This amendment addresses this concern.

No. 84: as I have explained in government amendment No. 83, it was submitted during consultation that relevant decisions should be defined for the purposes of the clause to include both the decision of the tribunal under review and any original decision.

No. 85: clause 84 of the bill is drafted to provide that members of the tribunal or members of the staff of the tribunal will be protected from liability in tort or anything done in performance or purported performance of a function under this act or a relevant act. This amendment ensures the same protection from liability extends to other persons who are not members of the tribunal but designated officers of the tribunal. This would include, for example, an expert who provided a report to the tribunal pursuant to clause 42 of the bill.

No. 86: this amendment corrects a drafting error to ensure provision covers both types of review undertaken by the tribunal of external decisions, and an internal review of its own original decisions. Amendment No. 87: this amendment corrects a drafting error.

Amendment No. 88: clause 93 of the bill as drafted enables a person seeking to enforce a decision or order of the tribunal to file an order or decision in the appropriate court, and that decision is to be deemed to be a decision of the appropriate court and so be enforced. For reasons already explained in other amendments, the consultation on the bill raised a number of issues about this and the exercise of judicial power. It is instead proposed in this amendment to include a mechanism with respect to monetary orders of the tribunal being made enforceable as a debt in a court of competent jurisdiction. For orders that do not involve a monetary amount, a person who contravenes or fails to comply with the order of the tribunal will be liable to be prosecuted for an offence created under clause 93(3) of the bill.

The significance of these amendments has the effect of requiring a court to exercise its own judicial power in ordinary court proceedings before the orders of the tribunal would become enforceable—very important. It would be the order of the court and not the tribunal that would be enforceable. Clause 93 of the bill as amended could not be seen as exercising judicial power. I am actually quite excited by that; I think that is a very clever piece of drafting. Congratulations to whoever thought that one up; that is very good—very smooth.

Amendment No. 89: this amendment is connected to government amendment No. 88 and proposes to increase the maximum penalty that applies for noncompliance of an order to the tribunal, pursuant to clause 93 of the bill. It has been necessary to increase the maximum penalty as this offence serves as the single mechanism to ensure compliance with tribunal orders that do not involve monetary amounts.

Amendment No. 90: this amendment applies to clause 94 of the bill, which outlines the procedure that will apply when a member of the public applies to inspect or obtain documentary material held by the tribunal. Clause 94 as currently drafted replicates similar provisions in other statutes, for example, section 51 of the Magistrates Court Act. Concerns were raised during consultation that, due to the diversity of the subject matter to be dealt with by the tribunal, it would be unlikely that the stated exemptions in subclause (2), which require tribunal permission for disclosure, will cover every potential circumstance in which information should be withheld, for example, medical records or the names of mandated officers.

This amendment will have the practical effect of the tribunal having to exercise its discretion in receipt of all applications, pursuant to clause 94. Should any confidential material be identified, this can either be withheld in isolation from release or the application refused. This will create a final safeguard to ensure that no confidential material arising from a tribunal proceeding is publicly released. This is necessary as the tribunal is not a court and, on this basis, can be distinguished from section 51 of the Magistrates Court Act.

I note for the sake of completeness that clause 60 of the bill provides a mechanism that sets out that a tribunal proceedings may be held in private. Clause 60 of the bill also empowers the tribunal to give directions prohibiting or restricting the publication of names, evidence of documents produced where it is appropriate to do so. It is submitted, however, that the protection for confidential material, under clause 60 of the bill, operates only when proceedings are currently underway and not beyond finalisation when many requests to inspect or copy proceedings are made.

Amendment No. 91: this amendment is consequential to amendment No. 90.

Amendment No. 92: in clause 95 of the bill as drafted, the president of the tribunal may deal with any act or omission that would constitute contempt of court if the proceedings were before the Supreme Court. For reasons already explained in other amendments, consultation on the bill raised a number of concerns that there were provisions of the bill which made the tribunal basically look like a court. The weight of submissions received during the consultation indicated that it would be preferable if the bill did not provide for the exercise of judicial power by the tribunal, and consequently it is proposed in this amendment to delete clause 95.

Amendment No. 93: this is an amendment to clause 75. This amendment provides a mechanism whereby costs for appeals to the Supreme Court against decisions of the tribunal, as provided for in clause 75, could be capped by prescribing cost scales for such appeals in regulations under the bill. The government's objective in establishing the SACAT is to provide easy access to an easy to use dispute resolution forum, not for it to be used as a stepping stone to get into the court system to challenge administrative decisions. Obviously, having a handle on costs is an important thing.

I realise that is a slightly longer speech than I normally give, and it is certainly less pleasant, from my point of view, than most, too. But, that said, I hope I have fully explained all of the amendments we are putting in. Can I take this opportunity to thank all of the officers who have worked on this and my staff who have worked on this. As you can see from the amount of amendments that we have got here, to get from where we were before the winter break to where we are today, where we have got this comprehensive consultation process that has occurred and been not only considered but acted upon in terms of amendments, is fantastic. So, can I say to all of you who have been working on this, thank you very much.

Parliamentary counsel, as usual, have stepped up to the plate and done a great job, so to parliamentary counsel, thank you. This has been no easy exercise from anybody's point of view. It has been a lot of work. I know policy and legislation people, parliamentary counsel and my office have been working very hard, so I really do want to thank all of those people for the tremendous work they have put in. It is a worthwhile project. I know it has been hard work, I know you have spent a lot of time on it, but I think it is ultimately something that you will be pleased to have been associated with.

Bill read a second time.

Committee Stage

In committee.

The Hon. J.R. RAU: The honourable member for Bragg and I simply wish that I move all of the amendments which stand in my name in one go. We want to insert the whole lot, just like that.

The CHAIR: The advice I have received is that you cannot do it the way you are wishing to do it. You have got to do it clause by clause.

The Hon. J.R. RAU: Okay.

The CHAIR: It will not take as long as you expect because these are blocked together.

Clauses 1 and 2 passed.

Clause 3.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 6, line 3—After 'unless' insert 'and to the extent that'

Amendment No 2 [AG–1]—

Page 6, line 6—Delete 'or determination' and substitute ', determination or order'

Amendment No 3 [AG–1]—

Page 6, line 6—After 'Tribunal' insert:

but, in prescribed circumstances, does not include an interlocutory direction, determination or order

Amendment No 4 [AG–1]—

Page 6, line 12—Delete 'means' and substitute 'includes'

Amendment No 5 [AG–1]—

Page 6, line 13—After 'includes any' insert 'other'

Amendment No 6 [AG–1]—

Page 6, lines 16 and 17—Delete definition of exempt document

Amendment No 7 [AG–1]—

Page 6, lines 34 to 38—Delete definition of protected matter

Amendment No 8 [AG–1]—

Page 7, after line 20—Insert:

and

(a) other persons who are designated as officers of the Tribunal under this Act.

Amendments carried; clause as amended passed.

Clauses 4 to 7 passed.

Clause 8.

The Hon. J.R. RAU: I move:

Amendment No 9 [AG–1]—

Page 8, lines 5 and 6—

Delete 'in the field of administrative law, to promote the best principles of administrative law' and substitute:

, to promote the best principles of public administration

Amendment No 10 [AG–1]—

Page 8, lines 20 to 22—Delete paragraph (e) and substitute:

(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and

Amendment No 11 [AG–1]—

Page 8, line 26—After 'case' insert 'or a particular jurisdiction'

Amendments carried; clause as amended passed.

Clause 9 passed.

Clause 10.

The Hon. J.R. RAU: I move:

Amendment No 12 [AG–1]—

Page 9, line 5—Delete 'assigned' and substitute 'appointed'

Amendment No 13 [AG–1]—

Page 9, after line 17—Insert:

(3a) The appointment of a judge as the President of the Tribunal will be for a term of 5 years (and the person is eligible for reappointment at the expiration of a term of office).

Amendment No 14 [AG–1]—

Page 9, line 18—Delete 'assignment' and substitute 'appointment'

Amendment No 15 [AG–1]—

Page 9, after line 24—Insert:

(5a) Any salary or allowances payable as an additional component of remuneration under subsection (5) cannot be reduced during the person's term of office as President.

Amendment No 16 [AG–1]—

Page 9, line 27—After 'the person' insert:

, acting with the agreement of the Chief Justice or the Chief Judge (as the case requires),

Amendment No 17 [AG–1]—

Page 9, lines 28 and 29—Delete paragraph (c) and substitute:

(c) the person completes a term of office and is not reappointed; or

(d) the appointment is revoked by the Governor, on the recommendation of the Attorney-General, for—

(i) mental or physical incapacity to carry out duties satisfactorily; or

(ii) neglect of duty; or

(iii) dishonourable conduct; or

(e) the person dies.

Amendment No 18 [AG–1]—

Page 9, after line 29—Insert:

(6a) Nothing under subsection (6)(b), (c) or (d) affects the person's tenure or status as a judge.

Amendments carried; clause as amended passed.

Clauses 11 to 13 passed.

Clause 14.

The Hon. J.R. RAU: I move:

Amendment No 19 [AG–1]—

Page 11, line 11—Delete 'assigned' and substitute 'appointed'

Amendment No 20 [AG–1]—

Page 11, after line 24—Insert:

(3a) The appointment of a judge as a Deputy President of the Tribunal will be for a period of 5 years (and the person is eligible for reappointment at the expiration of a term of office).

Amendment No 21 [AG–1]—

Page 11, line 25—Delete 'assignment' and substitute 'appointment'

Amendment No 22 [AG–1]—

Page 11, line 27—Delete 'assignment' and substitute 'appointment'

Amendment No 23 [AG–1]—

Page 11, after line 31—Insert:

(5a) Any salary or allowances payable as an additional component of remuneration under subsection (5) cannot be reduced during the person's term of office as a Deputy President of the Tribunal.

Amendment No 24 [AG–1]—

Page 12, after line 5—Insert:

(8a) The remuneration of a Deputy President of the Tribunal appointed under subsection (1)(b) (including any salary or allowances) cannot be reduced during the person's term of office as a Deputy President of the Tribunal (unless the reduction is related to a reduction in the person's hours of service over a particular period under an agreement entered into under subsection (6)(b)).

Amendment No 25 [AG–1]—

Page 12, lines 7 to 19—Delete paragraphs (a), (b) and (c) and substitute:

(a) in the case of an appointment under subsection (1)(a)—the person ceases to be a judge of the District Court; or

(b) the person resigns as Deputy President by written notice to the Attorney-General; or

(c) the person completes a term of office and is not reappointed; or

(d) the appointment is revoked by the Governor, on the recommendation of the Attorney-General, for—

(i) mental or physical incapacity to carry out duties satisfactorily; or

(ii) neglect of duty; or

(iii) dishonourable conduct; or

(e) the person dies.

Amendment No 26 [AG–1]—

Page 12, after line 19—Insert:

(9a) Nothing in subsection (9)(b), (c) or (d) affects a person's tenure or status as a judge (in the case of an appointment under subsection (1)(a)).

(9b) A judge of the District Court may only act under subsection (9)(b) with the agreement of the Chief Judge.

Amendment No 27 [AG–1]—

Page 12, line 21—Delete '(b)(ii)' and substitute '(d)'

Amendments carried; clause as amended passed.

Clauses 15 to 18 passed.

Clause 19.

The Hon. J.R. RAU: I move:

Amendment No 28 [AG–1]—

Page 15, line 17—Delete 'must from time to time appoint a panel of persons who will' and substitute:

may from time to time appoint a panel of persons who will, at the request of the Minister

Amendment No 29 [AG–1]—

Page 15, line 19—Delete 'and' (appearing after paragraph (a))

Amendment No 30 [AG–1]—

Page 15, lines 23 to 25—Delete subclause (3)

Amendment No 31 [AG–1]—

Page 15, line 36—Delete 'the' and substitute 'any'

Amendment No 32 [AG–1]—

Page 15, line 37—Delete 'the' and substitute 'any'

Amendments carried; clause as amended passed.

Clauses 20 and 21 passed.

Clause 22.

The Hon. J.R. RAU: I move:

Amendment No 33 [AG–1]—

Page 18, line 5—Delete 'a' and substitute 'the'

Amendment carried; clause as amended passed.

Clause 23.

The Hon. J.R. RAU: I move:

Amendment No 34 [AG–1]—

Page 18, lines 35 and 36—Delete '(unless a relevant Act provides otherwise)'

Amendment No 35 [AG–1]—

Page 19, lines 1 to 14—Delete subclause (3)

Amendments carried; clause as amended passed.

Clauses 24 and 25 passed.

Clause 26.

The Hon. J.R. RAU: I move:

Amendment No 36 [AG–1]—

Page 20, lines 28 to 37 and page 21, lines 1 to 15—

Delete subclauses (1) to (8) and substitute:

(1) The member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may refer a question of law to a Presidential member of the Tribunal.

Amendment No 37 [AG–1]—

Page 21, line 16—Delete 'this subsection applies to a question of law' and substitute 'a question of law is referred under this section'

Amendments carried; clause as amended passed.

Clauses 27 to 29 passed.

Clause 30.

The Hon. J.R. RAU: I move:

Amendment No 38 [AG–1]—

Page 22, after line 18—Insert:

or

(c) to the person (being either a member of the Tribunal or a member of the staff of the Tribunal) for the time being performing particular duties or holding or acting in a particular position.

Amendment carried; clause as amended passed.

Clause 31 passed.

Clause 32.

The Hon. J.R. RAU: I move:

Amendment No 39 [AG–1]—

Page 23, line 1—Delete 'jurisdiction that is exercised under Part 5' and substitute 'internal review jurisdiction that is exercised under Part 5 Division 1'

Amendment carried; clause as amended passed.

Clause 33 passed.

Clause 34.

The Hon. J.R. RAU: I move:

Amendment No 40 [AG–1]—

Page 23, line 23—Delete 'subsection' and substitute 'subsections (3a),'

Amendment No 41 [AG–1]—

Page 23, after line 24—Insert:

(3a) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.

Amendment No 42 [AG–1]—

Page 23, line 25—Delete 'A' and substitute 'A procedure on a'

Amendments carried; clause as amended passed.

Clause 35 passed.

Clause 36.

The Hon. J.R. RAU: I move:

Amendment No 43 [AG–1]—

Page 24, line 34—After 'determination of the matter' insert:

, or until such time (whether before or after the determination of the matter) as the Tribunal or the decision-maker may specify,

Amendment carried; clause as amended passed.

Clause 37.

The Hon. J.R. RAU: I move:

Amendment No 44 [AG–1]—

Page 25, line 10—After 'including' insert:

any interim order pending the reconsideration and determination of the matter by the decision-maker, or

Amendment No 45 [AG–1]—

Page 25, line 11—Delete 'order' and substitute 'order,'

Amendments carried; clause as amended passed.

Clause 38.

The Hon. J.R. RAU: I move:

Amendment No 46 [AG–1]—

Page 25, after line 37—Insert:

(4) The Tribunal may specify a period within which the decision-maker should act under this section (and if the decision-maker does not take action within that period then the Tribunal may resume its proceedings under this Division in such manner as it thinks fit).

Amendment carried; clause as amended passed.

Clause 39.

The Hon. J.R. RAU: I move:

Amendment No 47 [AG–1]—

Page 26, line 5—Delete '(other than contempt proceedings)'

Amendment No 48 [AG–1]—

Page 26, lines 13 to 16—Delete subclause (2) and substitute:

(2) Nothing in this Act affects any rule or principle of law relating to—

(a) legal professional privilege; or

(b) 'without prejudice' privilege; or

(c) public interest immunity.

(3) This section does not limit the operation of section 73.

Amendments carried; clause as amended passed.

Clause 40.

The Hon. J.R. RAU: I move:

Amendment No 49 [AG–1]—

Page 27, line 3—After 'fails' insert 'without reasonable excuse'

Amendment No 50 [AG–1]—

Page 27, line 4—After 'fails' insert 'without reasonable excuse'

Amendment No 51 [AG–1]—

Page 27, line 5—After 'fails' insert 'without reasonable excuse'

Amendment No 52 [AG–1]—

Page 27, line 12—Delete '$10,000 or imprisonment for 6 months' and substitute '$25,000 or imprisonment for 1 year.'

Amendment No 53 [AG–1]—

Page 27, lines 13 to 27—Delete subclauses (5), (6) and (7)

Amendment No 54 [AG–1]—

Page 27, line 33—Delete subclause (9)

Amendments carried; clause as amended passed.

Clause 41 passed.

Clause 42.

The Hon. J.R. RAU: I move:

Amendment No 55 [AG–1]—

Page 28, line 14—Delete 'The rejection of a report' and substitute 'Any action taken'

Amendment carried; clause as amended passed.

Clause 43.

The Hon. J.R. RAU: I move:

Amendment No 56 [AG–1]—

Page 28, lines 29 and 30—Delete subparagraphs (i) and (ii):

Amendment No 57 [AG–1]—

Page 29, line 5—Delete ' and place' and substitute 'and to any place'

Amendments carried; clause as amended passed.

Clause 44.

The Hon. J.R. RAU: I move:

Amendment No 58 [AG–1]—

Page 29, lines 17 and 18—Delete all words in these lines after 'another party' in line 17

Amendment carried; clause as amended passed.

Clauses 45 to 47 passed.

Clause 48.

The Hon. J.R. RAU: I move:

Amendment No 59 [AG–1]—

Page 30, line 12—After 'in substance' insert 'or involves a trivial matter or amount'

Amendment carried; clause as amended passed.

Clause 49 passed.

Clause 50.

The Hon. J.R. RAU: I move:

Amendment No 60 [AG–1]—

Page 31, line 14—After 'subsection (2)' insert '(and section 4)'

Amendment No 61 [AG–1]—

Page 32, after line 7—Insert:

(8a) If a question of law is referred to a Presidential member of the Tribunal under subsection (8)(a), the Presidential member may refer the question to the Supreme Court for decision by the Full Court of the Supreme Court.

Amendment No 62 [AG–1]—

Page 32, after line 26—Insert:

(14) The rules may set out circumstances where the outcome of any proceedings under this section (including details of a settlement) are to be available to members of the public.

Amendments carried; clause as amended passed.

Clause 51.

The Hon. J.R. RAU: I move:

Amendment No 63 [AG–1]—

Page 33, after line 18—Insert:

(13) The rules may set out circumstances where the outcome of any proceedings under this section (including details of a settlement) are to be available to members of the public.

Amendment carried; clause as amended passed.

Clause 52.

The Hon. J.R. RAU: I move:

Amendment No 64 [AG–1]—

Page 33, line 28—After 'matter' insert 'or that the terms of the settlement are inappropriate'

Amendment carried; clause as amended passed.

Clauses 53 to 55 passed.

Clause 56.

The Hon. J.R. RAU: I move:

Amendment No 65 [AG–1]—

Page 34, lines 32 to 34—Delete subclause (3) and substitute:

(3) Nothing in this section authorises a person who is not a legal practitioner to act for fee or reward in relation to proceedings before the Tribunal.

(4) A person may not act as a representative in proceedings before the Tribunal if—

(a) the person is a legal practitioner whose practising certificate has been suspended; or

(b) the person's name has been struck off the roll of legal practitioners; or

(c) the person would be acting in any other manner that is inconsistent with disciplinary proceedings that have been taken under the Legal Practitioners Act 1981.

Amendment carried; clause as amended passed.

Clause 57.

The Hon. J.R. RAU: I move:

Amendment No 66 [AG–1]—

Page 35, line 22—Delete 'order of' and substitute 'order for'

Amendment carried; clause as amended passed.

Clause 58.

The Hon. J.R. RAU: I move:

Amendment No 67 [AG–1]—

Page 35, line 27—Delete ', loss, inconvenience or embarrassment' and substitute 'or loss'

Amendment carried; clause as amended passed.

Clauses 59 to 63 passed.

Clause 64 negatived.

Clauses 65 to 67 passed.

Clause 68.

The Hon. J.R. RAU: I move:

Amendment No 69 [AG–1]—

Page 39, line 3—Delete 'have been' and substitute 'had been'

Amendment carried; clause as amended passed.

Clause 69.

The Hon. J.R. RAU: I move:

Amendment No 70 [AG–1]—

Page 39, line 6—After 'Tribunal' insert:

(other than on account of having his or her appointment revoked or being removed from office)

Amendment carried; clause as amended passed.

Clauses 70 and 71 negatived.

Clause 72 passed.

Clause 73.

The Hon. J.R. RAU: I move:

Amendment No 72 [AG–1]—

Page 41, line 2—Delete 'or a direction under section 44(4)'

Amendment No 73 [AG–1]—

Page 41, line 10—Delete 'Reviews' and substitute 'Internal reviews'

Amendments carried; clause as amended passed.

Clause 74.

The Hon. J.R. RAU: I move:

Amendment No 74 [AG–1]—

Page 41, lines 12 and 13—Delete 'and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal'

Amendment No 75 [AG–1]—

Page 41, line 18—After 'that period' insert '(even if the time for instituting the application has expired)'

Amendment No 76 [AG–1]—

Page 42, after line 3—Insert:

(6a) The Tribunal must, in acting under this section, reach the correct or preferable decision but in so doing must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance.

Amendment No 77 [AG–1]—

Page 42, line 13—After 'make' insert:

any interim order pending any review, or any reconsideration and determination of the matter, under this section, or

Amendment No 78 [AG–1]—

Page 41, lines 19 to 39—Delete subclauses (3), (4) and (5) and substitute:

(3) The President may determine, in relation to a particular matter, or particular class of matters, how the Tribunal will be constituted for the purposes of this section.

Amendment No 79 [AG–1]—

Page 42, line 17—Delete the definition of decision

Amendments carried; clause as amended passed.

Clause 75.

Amendment No 80 [AG–1]—

Page 42, line 34—After 'that period' insert '(even if the time for instituting the appeal has expired)'

Amendment No 81 [AG–1]—

Page 43, line 5—After 'any' insert 'interim,'

Amendment No 82 [AG–1]—

Page 43, lines 7 and 8—Delete subclause (6)

Amendment No 1 [AG–2]—

Page 43, after line 7—Insert:

(5a) The regulations may prescribe scales of costs that are payable in respect of proceedings before the Supreme Court on an appeal under this section (and if a regulation is made under this section then the costs so prescribed will apply in substitution for any costs under the Supreme Court Act 1935).

Amendments carried; clause as amended passed.

Clause 76 passed.

Clause 77.

The Hon. J.R. RAU: I move:

Amendment No 83 [AG–1]—

Page 43, lines 18 and 19—Delete 'the decision' and substitute 'a decision'

Amendment No 84 [AG–1]—

Page 43, line 22—Delete 'the relevant decision' and substitute 'a relevant decision (including a decision of a relevant decision-maker)'

Amendments carried; clause as amended passed.

Clauses 78 to 83 passed.

Clause 84.

The Hon. J.R. RAU: I move:

Amendment No 85 [AG–1]—

Page 46, line 4—After 'staff' insert 'or an officer'

Amendment carried; clause as amended passed.

Clauses 85 and 86 passed.

Clause 87.

The Hon. J.R. RAU: I move:

Amendment No 86 [AG–1]—

Page 46, lines 31 and 32—Delete 'the requirement' and substitute 'a requirement'

Amendment carried; clause as amended passed.

Clause 88 passed.

Clause 89.

The Hon. J.R. RAU: I move:

Amendment No 87 [AG–1]—

Page 47, line 27—After 'section 34' insert 'or 74'

Amendment carried; clause as amended passed.

Clauses 90 to 92 passed.

Clause 93.

The Hon. J.R. RAU: I move:

Amendment No 88 [AG–1]—

Page 48, lines 25 to 34—Delete subclauses (1) and (2) and substitute:

(1) If the Tribunal makes a monetary order, the amount specified in the order may be recovered in the appropriate court, by a person recognised by the regulations for the purposes of this subsection, as if it were a debt.

Amendment No 89 [AG–1]—

Page 48, line 37—Delete '$10,000' and substitute '$50,000 or imprisonment for 2 years.'

Amendments carried; clause as amended passed.

Clause 94.

The Hon. J.R. RAU: I move:

Amendment No 90 [AG–1]—

Page 49, line 9—Delete 'must' and substitute 'may'

Amendment No 91 [AG–1]—

Page 49, line 26—After 'subsection' insert '(1) or'

Amendments carried; clause as amended passed.

Clause 95 negatived.

Clauses 96 to 101 passed.

Ms CHAPMAN: I just indicate that there was a second amendment—clause 75.

The CHAIR: We did that on clause 75.

Ms CHAPMAN: It was there and the second matter is on page 12 of the amendments, I think you dealt with amendment 72 and 73 together as they were an amendment of clause 73 and the amendment 73 is actually a deletion of a heading after clause 73. Just so it is all clear, I think we have to separately move amendment 73. It is not an amendment to clause 73.

The CHAIR: I am advised that it falls between 73 and 74.

Ms CHAPMAN: So what do we do with it?

The CHAIR: We moved it as an amendment.

Ms CHAPMAN: As long as that is okay.

The CHAIR: Yes.

Ms CHAPMAN: Thank you.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.