Bills

Statutes Amendment (SACAT No 2) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 August 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:11): I rise to speak on the Statutes Amendment (SACAT No 2) Bill 2017. I expect that I will be the only speaker; nevertheless, my contribution might inspire others. I indicate that the opposition has considered the bill and, whilst we have a number of concerns about the existing operational performance of SACAT, and further that, as Judge Cole resigned some months ago and has not been replaced, the transfer of any further jurisdictions to SACAT raises a number of concerns, not because we do not support having a central administrative tribunal—and we have moved from the specialist model to a central model—but clearly if the government wished this tribunal to be effective and to have outcomes of which its reasonable aspirations had been expected, then frankly it has to have the appropriate resources to do it.

In asking an entity, in this case the SACAT, to take on another 42 jurisdictions, some of which do not have much of a workload in the sense of reviews that may need consideration, when there is one judge down out of two, and secondly, to take on some processing that is currently under question, we have to question the capacity for this to occur. I also mention that, as this bill proposes to transfer matters including adoption under the Births, Deaths and Marriages Act, members of the Law Society's children committee have again raised their concern that, if SACAT is going to have responsibility in this area, properly trained personnel need to be engaged, in that it relates to relevant training to deal with children and young people.

Bear in mind that, under adoption laws, changes of name involving children over the age of 12 years require the child's consent and an interview has to occur, etc. With that, in principle we do not object to these matters being transferred, and the government, after briefings on 5 September, did provide a schedule in respect of the staging of other jurisdictions, which are to be conferred at some unspecified future date.

What did concern me today was to receive in the parliament a rather thick report from the Hon. David Bleby QC, who prepared a comprehensive statutory review of the operations of the court. Quite obviously, I was handed a copy of it about 15 minutes ago. I note that it was a report dated at the end of July. I will just find it. The date on the front of the report, in any event, is 1 August 2017, which is in compliance with the obligation in the statute for there to be a two-yearly review undertaken and provided to the parliament within six sitting days of receiving the report. I would be very concerned to note, if the Attorney has only just received this in the last six sitting days—

The Hon. J.R. Rau: Six sitting days—this is the first sitting day.

Ms CHAPMAN: —that the Attorney would then prepare the government's response and also table that today, pronounce in a ministerial statement that his government has considered and accommodated a number of amendments recommended by the Hon. David Bleby QC and then hand in a schedule of amendments, which had an explanatory letter emailed to my office during question time, as to the amendments that are proposed to be introduced. I do not know what sort of operation the Attorney-General is running these days. I am pretty good, but I am not that good. I cannot digest massive reports and amendments within minutes. Even the period during which matters of concern were raised to the parliament was not enough to be able to get through that.

What I did notice in starting to read the Bleby report is that clearly my observations and what has been presented to me about the tribunal are all too true: there are major problems with the operation of the tribunal. There are recommendations, including that, as a matter of some urgency apparently, there be a consolidation of the tribunal to one location as one of the highest and most urgent priorities. It is recommendation 6. I did not hear anything in the statement of the Attorney today that he was accepting that recommendation.

What we had was a rather longwinded, but nevertheless summary, of some of the recommendations that the government proposed to implement, and apparently they are in the amendments that I have just received. If they are worthwhile amendments then they are matters that we will consider between the houses.

Obviously, we are not in a position today to read the report, digest the 51 recommendations, find out whether the amendments adequately represent those accepted by the government that are meritorious, identify those that are not and furthermore identify the recommendations that are made that have not been picked up and why not, but we will do so between the houses.

I mention one other matter in respect of the operations of SACAT. As members know, the bulk of its business is in relation to guardianship matters, which still operate out of their premises in the ABC building at Collinswood, and we have a city-based facility to deal with residential tenancy disputes. That is the bulk of the business of this agency at present. There are a few other jurisdictions that do review work, but essentially this is the bulk of its business.

They have not moved office. If each of these was a separate tribunal before, it was conferred to the new SACAT. Even though they have not moved office, clearly there have been some teething problems in the operations of this court under the new logo. They changed the logo over the door, everyone was dismissed and then people were allowed to reapply. Some were given back their jobs and others were filled under some new regime by the Attorney-General.

Suffice to say, obviously a number of the personnel coming in were new. Even though they did not move office, it is fair to say that, especially in the residential tenancies area, there seemed to be major problems originally in dealing with disputes in relation to tenancies in a timely manner, usually unpaid rent and eviction issues, and return of bonds. As with all new laws, especially with new personnel, you have to think that for the first year there are going to be some teething problems. That has to be taken on the chin, but to find that several years later we still have a major problem with the refunding of bonds, for example, in respect of residential tenancies tribunals, is really concerning.

When this bill came up, again I had representations that, sadly, this situation had not improved very much. For example, some data was done in the preceding 12 months in respect of the bond refunds that are submitted to SACAT; that is when a bond is in dispute. The data suggested an average wait of 92 days for a bond refund to be received and 49 days to receive a hearing. A standard bond is six weeks' rent (42 days) and therefore to have a 49-day target is not acceptable in providing a fair outcome not only for the refund but for the opportunity for the landlord or the tenant to then move on. It is extremely important that the government addresses this issue.

In respect of reviews, it is hard to imagine how a court that justified having a half-time Supreme Court judge and a full-time District Court judge now has only one judge, and a lot of razzamatazz around the announcement of that at the budget, only to find that when Ms Cole resigned a few months ago she has not been replaced. I think it is unreasonable for the Attorney-General and this government to expect that SACAT can continue to conduct its business in an as efficient way as it has, notwithstanding some problems, without adequate personnel.

I can only say to the people at SACAT, 'Good luck if you are expected to pick up the work of these other jurisdictions.' In respect of the multitude of matters that have been raised in the Bleby report, we will review those matters and have a look at them. I will endeavour to view some of these amendments. The Attorney will respond and then we can progress the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:24): I thank the deputy leader for her contribution on this bill. To clarify something, in case people are following this, the former complement of this thing was that Judge Cole was not full-time at SACAT. She was part-time at SACAT—0.25, if I remember correctly—and Justice Parker was only part-time as well. He was only 50 per cent, I think.

In respect of that, we have dealt with the president being a part-time president. We have resolved that issue. The president is now a full-time dedicated president—namely, President Hughes—and we are considering how to deal with the question of a deputy. One of the things I am turning my mind to is whether there should be one or maybe a couple of them. I do not know, but it is something we are looking at that. We are definitely actively considering that matter.

The general concerns raised by the member for Bragg about SACAT are, in general terms, concerns that I too have shared. I thought this was an important reform. I was very keen to see this proceed. I think the initiative is the correct one. I think putting more jurisdiction in there will actually make the place a bit more vibrant and sharpen the place up a bit. The reason I was interested in Mr Bleby undertaking the review—aside from the fact that there was a requirement in the legislation—is that I wanted to know how we could improve the performance of the SACAT to make it the best it possibly can be.

I remain committed to that. I am of the view that the amendments we are proposing to introduce into this bill, largely as a result of Mr Bleby's recommendations, will make improvements that will be beneficial. I can understand the member for Bragg not wishing to make a final determination of her opinion of these matters, having only just received the material. Contrary to the usual situation, where I am accused of having sat on things and not told people things, I have undertaken to bring this to the parliament at the earliest possible moment and not just at the earliest possible moment but with a response, with a considered position and with amendments.

On this occasion, I am possibly open to the criticism that I have moved too far too quickly, but, in any event, I take no issue with the deputy leader wanting to have a bit of time to reflect on this. That is perfectly reasonable, no problem. I will be proceeding on the basis that we will take the matter through this place. If the deputy leader wants to talk further between the houses about other matters that relate to this bill, whether they relate to the original bill or the amendments we are putting in now, I will be happy to deal with those as and when and if they arise.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 110 passed.

New clause 110A.

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

Amendment No 1 [AG–1]—

Page 38, after line 29—After clause 110 insert:

110A—Amendment of section 39—Powers and duties of administrator

Section 39—after subsection (3) insert:

(3a) The regulations may provide that powers or duties of an administrator specified by the regulations must be exercised in accordance with the regulations (and such regulations may provide that a specified power or duty may not be exercised without the approval of the Tribunal).

Ms CHAPMAN: I would like some explanation as to what this is and which recommendation it follows.

The Hon. J.R. RAU: This is one of a series of amendments being moved as part of the government's response to the review by Mr Bleby. This particular amendment relates to the review recommendation that the government implement a series of amendments previously suggested by SACAT to improve its efficiency. The majority of those suggested changes were supported and are already contained in this bill as introduced.

One suggestion that had been deferred for further consideration was a proposal for greater oversight by SACAT of private administrators appointed by SACAT under the Guardianship Administration Act. Examples of possible measures include restrictions or directions on how private administrators invest a protected person's money. I consider that this bill presents an appropriate opportunity to allow these additional oversight measures to be introduced by regulation after further consultation, and the amendment will allow this to occur.

Ms CHAPMAN: Which recommendation?

The Hon. J.R. RAU: It is 42, I am told.

The CHAIR: Any further questions?

Ms CHAPMAN: Recommendation No. 42 that I am reading is:

…the letter from the President of the Tribunal dated 17 May 2016 and the Briefing Memorandum from the Community Stream ESM to the President dated 21 March 2017 be enacted as soon as possible.

It does not have anything to do with it.

The Hon. J.R. RAU: Yes, it does. What has happened is that there was a suggestion made by letter by the then president—

Ms CHAPMAN: What does it say?

The Hon. J.R. RAU: Their suggestion related to providing greater oversight by SACAT of private administrators. What we are doing is saying, 'Yes, that's a good idea. We are going to provide for'—if you go back to the actual amendment, it says:

The regulations may provide that powers or duties of an administrator specified by the regulations must be exercised in accordance with—

In other words, we are providing a regulation-making power to enable us to do by regulation what the then president of SACAT recommended. Our intention is, if this goes through as intended, that we would be consulting on a draft regulation which would deliver on the detail contained in that request.

Ms CHAPMAN: But recommendation No. 42 does not say that. It just refers to a letter, that a letter and a briefing memorandum of a certain date be enacted as soon as possible. It does not tell me anything. That is my point. You are saying to me that, within that correspondence or memorandum, which presumably is somewhere detailed in the report—

The Hon. J.R. RAU: I think what you are asking me for is a copy of the letter to which he is referring.

Ms CHAPMAN: No, I want to know what recommendation in the Bleby report you say this amendment is complying with. That is all. Recommendation 42, if I am reading this correctly, is on page 11. My copy is a bit misaligned; it could include it, but it does not say—

That subject to the qualifications referred to in this report the legislative amendments referred to in the letter from the President of the Tribunal, dated 17 May 2016 and the Briefing Memorandum from the Community Stream ESM to the President dated 21 March 2017 be enacted as soon as possible.

My question is: do the contents of this memorandum and letter suggest that there needs to be a regulation-making power?

The Hon. J.R. RAU: It suggests that we provide for SACAT to do certain things to have greater oversight and what we are doing is giving the power to make regulations to do precisely that.

New clause inserted.

Clauses 111 to 222 passed.

New clauses 222A, 222B and 222C.

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

Amendment No 2 [AG–1]—

Page 71, after line 8—After clause 222 insert:

222A—Amendment of section 70—Internal reviews

Section 70(1a)—delete 'subsection (1)(b)' and substitute 'this section'

222B—Amendment of section 73—Effect of review or appeal on decision

Section 73(4)—delete 'Presidential' and substitute 'legally qualified'

222C—Amendment of section 75—Functions of registrars

Section 75(1)(a)—after 'assist' insert ', or act on behalf of,'

This amendment will implement three more legislative changes recommended by the review, and I will get the numbers for you in a moment. The first of these to section 70 of the act is that SACAT be amended to provide that an internal review of a decision may only be made with the permission of the tribunal.

Currently, leave is only required for internal reviews of decisions of SACAT when constituted by a registrar or other staff member. It is agreed that there is merit in including a general requirement for leave, equivalent to the requirement for leave for an internal review by SACAT under section 64C of the Guardianship and Administration Act where use could be made of the leave application, for example, involving an unrepresented applicant who might have had difficulty in articulating in the internal review applications the ground of review and/or the relief being claimed.

The second of these to section 73 of the act is to amend to provide for the stay by a presidential member or a legally qualified senior member of a decision of the subject of an application for internal review. Mr Bleby identified this may be necessary or desirable in certain circumstances. Currently, the act only provides for a stay to be exercised by a presidential member, so this power is extended to legally qualified members as defined in the act.

The third, to section 75 of the act, extends the administrative powers of the registrar by allowing the registrar to act on behalf of the president in the administration of SACAT subject to any directions of the president. It is agreed that this is a useful measure for the improved efficiency of SACAT. I think the recommendations we were talking about here are 38, 39 and 41.

New clauses inserted.

Clause 223 passed.

New clauses 223A and 223B.

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

Amendment No 3 [AG–1]—

Page 71, after line 14—After clause 223 insert:

223A—Insertion of section 93B

After section 93A—insert:

93B—False or misleading statements

A person who knowingly makes a false or misleading statement for the purposes of, or in connection with, consideration by the registrar or the Tribunal (including the Tribunal as constituted of a registrar or other member of staff of the Tribunal) as to whether to waive, remit or make such other provision in relation to the payment of fees in respect of proceedings before the Tribunal, is guilty of an offence.

Maximum penalty: $1,250 or imprisonment for 3 months.

223B—Amendment of section 94—Rules

Section 94(1)—after paragraph (c) insert:

(ca) providing for the provision of written statements of reasons for decisions of the Tribunal at first instance for the purposes of an internal review of the decision by the Tribunal under section 70; and

The first of these amendments will implement the statutory review recommendation that an offence be created of giving a false or misleading statement in connection with the request for a fee waiver. This is designed to bolster the integrity of the fee remission application process and will support plans to introduce stricter fee waiver policies and recording by SACAT.

The second of the amendments will implement the statutory review recommendation that the act be amended to provide that, if the presiding member of the tribunal on an internal review so requests, reasons for the decision under review must be provided by the decision-maker. This amendment will allow such a requirement to be included in the SACAT rules, recognising that this is a matter for the internal regulation of SACAT. This relates to recommendations 31 and 40 of Mr Bleby's report.

New clauses inserted.

Remaining clauses (224 to 271) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:39): I move:

That this bill be now read a third time.

Bill read a third time and passed.