Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill

Introduction and First Reading

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (12:03): On behalf of the Attorney-General, obtained leave and introduced a bill for an act to amend the Magistrates Court Act 1991 and the South Australian Civil and Administrative Tribunal Act 2013. Read a first time.

Second Reading

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (12:04): I move:

That this bill be now read a second time.

The Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 will address the recent High Court decision in Burns v Corbett which has the consequence of preventing the South Australian Civil and Administrative Tribunal from exercising its jurisdiction in residential tenancy matters and also potentially other matters within its jurisdiction where the matter involves the exercise of judicial powers and involves residents of different states.

The bill will ensure that if SACAT is unable to exercise its jurisdiction because of Burns v Corbett, the Magistrates Court will be able to exercise the jurisdiction to resolve the dispute with the same powers and fees as SACAT. Burns v Corbett involved a New South Wales dispute arising from equal opportunity legislation before the New South Wales Civil and Administrative Tribunal (NCAT).

The High Court held that NCAT did not have jurisdiction to deal with the dispute because it involved the exercise of judicial powers as distinct from administrative powers in a dispute between residents of different states. The court held that, under the Australian Constitution and the commonwealth Judiciary Act 1903, only a court referred to in chapter 3 of the Constitution could deal with such a dispute, that is, a dispute involving federal diversity jurisdiction.

In a judgement handed down by the president of SACAT, the Hon. Justice Hughes, in the matter of Raschke v Firinauskas, it was held that disputes under the Residential Tenancies Act 1995 are matters involving the exercise of judicial powers and therefore fall within the types of matters that may only be heard by a court in circumstances where one of the parties is resident interstate.

The immediate problem arising from these judgements is that there is no other body with jurisdiction to deal with tenancy disputes under the Residential Tenancies Act 1995, which contains provisions to deal expediently with tenancy disputes, including, for example, to make vacant possession orders and use the SACAT bailiff to enforce them.

While the government is presently considering appealing the SACAT judgement, the outcome of any appeal is unlikely to be known for some months. In the meantime, SACAT advises that the Burns v Corbett decision could affect up to 700 or 800 matters per year, with landlords in affected cases unable to collect rent or evict tenants under the Residential Tenancies Act.

To urgently address this gap, the government has prepared this bill which will amend the South Australian Civil and Administrative Tribunal Act 2013 and the Magistrates Court Act 1991 to ensure that the Magistrates Court is able to exercise jurisdiction in any matter in which SACAT may be unable to because the matter involves an exercise of federal diversity jurisdiction.

These amendments would operate so that the Magistrates Court is able to exercise all the powers and functions of SACAT in dealing with such matters, with SACAT transferring the matter to the Magistrates Court with no separate application or fee to the court required. The amendments will be implemented to streamline to the greatest extent possible the handling of affected matters so that the impact on parties is minimised. I commend the bill to members and I table a copy of the explanation of clauses.

Debate adjourned on motion of Mr Boyer.