Civil Liability (Trespass) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:34): I rise to speak on the Civil Liability (Trespass) Amendment Bill 2017. This bill was introduced by the Attorney-General on 18 October 2017 to amend the Civil Liability Act 1936.

The DEPUTY SPEAKER: Are you the lead speaker?

Ms CHAPMAN: I am the lead and probably only speaker.

The DEPUTY SPEAKER: You have said that to me before and that has not been the case.

Ms CHAPMAN: I have generally followed through. These do not always attract a manifestly large number of people interested, but I am sure that if I gave a speech on the reason we have the Civil Liability Act 1936 it would be so absorbing that people would rush to the chamber.

The Hon. T.R. Kenyon interjecting:

Ms CHAPMAN: Did you? Well, I could get really quite passionate about this. The most important thing about civil liability, in my view, is that governments should be as accountable as anyone else and so should their agencies and anyone employed or acting under instruction from them. Why is that so important? Because governments, relative to individuals, particularly in this state, are in a position of Goliath versus David. I am very passionate about this issue, so when amendments are presented to amend this legislation, which at present, except in certain circumstances identified in specific acts, they bind the Crown, and that is very important.

Nevertheless, this bill specifically proposes that there be no legal action for trespass that could be made against an officer serving a notice on behalf of the Crown when entering private property (namely, land), excluding a residential building. Mostly, this relates to police officers, who are of course employed by the Crown. I think it is fair to say that it is for a perfectly lawful purpose, particularly in the exercise of their delivery of service of summons and directions to be served pursuant to court action.

An authorised officer has the right to trespass with lawful excuse granted in certain circumstances. The authorised officers include, for the purposes of this bill, police officers, protective security officers, a sheriff of the court, a Public Service employee, any other person engaged by the Crown and persons included in the regulations. To the best of my knowledge, there are no others at this point, but that of course can vary and is subject to the disallowance provisions for all regulations.

On 19 October, a government briefing was provided. I thank those who attended for that purpose. To date, I have asked for two things, and they have not yet been provided. As I explained to the Attorney today, I am happy to proceed on the basis that this bill is passed today in this house and on the understanding that I will get these two things and that we may or may not consider some amendment between now and the other place. The first is to identify any cases that are pending against such officers—police officers or others—and the particulars of each and a list of those who were consulted; to date, as I understand it, it has only been SAPOL, which was the only party who requested what is incorporated in this bill.

Secondly, that SAicorp, which of course is the state's insurance company, makes provision for the payment of claims for which there is some liability of the Crown. Essentially, what happens is that agencies pay an amount to SAicorp, a bit like their own private insurance company, and taxpayers pay the bill if there is some breach compensable in that way. It is a little bit concerning to me that it should come at the request of an agency without full disclosure of specifically what is at stake without the passage of these amendments.

I can only really rely on submissions that I have received and the fact that I made my own inquiries in relation to the one case I am aware of, that is, from the pleadings in the case of Dean Cosenza v the State of South Australia. Mr Cosenza instituted proceedings in the Supreme Court, civil jurisdiction, for which he was awarded, in a default judgement, $100,000 compensation for an electricity salesman entering his property when he had ignored a no trespass notice.

The Full Court has heard an application, or it may have been a single judge. Nevertheless, the matter went on appeal. I will change that to this extent. I had referred previously to a Supreme Court application. My understanding is that it was a Magistrates Court application and that there was an order for payment by default on appeal that has been set aside. I think the status of that case at present is that Justice Blue of the Supreme Court, having overturned the Magistrates Court decision, leaves an outstanding claim for damages, which is now defended by the company (I think it is Origin), and that will follow its usual course. The details and extent of any other outstanding cases I am yet to receive. The government is on notice that we need to have some understanding about that before we give a final blessing to this legislation in the other place.

Let me be clear about this. There is good reason why we do not make laws just to deal with one case, or even two or three cases. In fact, when we deal with a very specific and narrow focus of application to have effect on someone's life or their right to claim or be the beneficiary of some entitlement through a legal process, that is frequently described as a hybrid bill and therefore needs to go through a proper process, a committee of inquiry, to ensure that making laws just to deal with one or two people who need to be dealt with, or making laws to give a benefit to a single person or entity or company or the like, requires very special consideration because of the fundamental principle that the laws we make here should be relevant to and applicable to everyone. That is, people are equal before the law and nobody is above the law.

I am very interested to know if an enforcement agency, in this case the police, are wanting to come to the parliament to get some redress to deal with something which may be quite meritorious. On the other hand, it may be to cover a circumstance where, frankly, their behaviour may have been less than adequate. I do not know the answer to that. I am not passing any judgement on it, but I do want that information before we finalise our position on that.

To date, those who have submitted to us suggest that, for employees or process servers or police officers or persons who are undertaking these types of duties, people who are going about their lawful duty, whether it is to read an electricity meter or whether it is to serve a document, there may need to be some dealing of that to facilitate it occurring, even in the circumstance of where there is notice of someone not entering, provided they are undertaking a lawful purpose. Secondly, they may need to ensure that there is no harassment or interference with their carrying out their lawful duties.

We have these laws to properly protect people's rights to not have people trespass on their property, and we need to ensure that the lawful entry and undertaking of lawful duties is balanced against that. With those words I indicate that we will not oppose the passage of the bill and look forward to the information that we sought on 19 October 2017. I know the Attorney-General's office has been very busy. They have been busy drafting up all sorts of bills to rush in here for urgent attention, but I am just reminding them that they promised this a month ago and I expect it.

The Hon. C.J. PICTON (Kaurna—Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety, Minister Assisting the Minister for Health, Minister Assisting the Minister for Mental Health and Substance Abuse) (16:44): On behalf of the Attorney-General, I thank the speaker in this debate, namely the Deputy Leader of the Opposition, who rightly predicted that she would be the only speaker during the debate. She was correct on this occasion.

It is apt that I am here as well, as the Minister for Police, to endorse this. As the deputy leader noted, a large number of the cases in which this issue would arise would involve SAPOL officers issuing summonses on people. From the government's perspective, it certainly would be concerning if people had the ability essentially to hold up a sign to say, 'We don't want the police to come here,' and then a summons was unable to be issued on a person. That is clearly not a very good public policy outcome, and that is what this bill is seeking to address.

It is quite limited in the way it does that. It is deliberately limited to just that very specific situation. Trespass offences generally will not be impacted, albeit in this very limited circumstance. On behalf of the Attorney, I can provide to the deputy leader the commitment that I have just spoken to the Attorney's staff and department, and they have been furiously working away on the information for the deputy leader, as they always do, as they always seek to provide information the deputy leader asks for. They will have that information for her between the houses to ensure that we can have a speedy passage of this sensible piece of legislation, which I endorse to the house.

Bill read a second time.

Third Reading

The Hon. C.J. PICTON (Kaurna—Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety, Minister Assisting the Minister for Health, Minister Assisting the Minister for Mental Health and Substance Abuse) (16:46): I move:

That this bill be now read a third time.

Bill read a third time and passed.