Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 June 2018.)

Mr PICTON (Kaurna) (21:21): I rise at this late hour to indicate the opposition's support for the Statutes Amendment (SACAT—

The DEPUTY SPEAKER: Member for Kaurna, sorry to interrupt, are you the lead speaker?

Mr PICTON: Deputy Speaker, I am the lead speaker. Take note, everybody. I am the lead speaker of this. We should write that in here in the future. I rise to indicate the opposition's support for the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018. The Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill deals with the High Court decision in Burns v Corbett which has resulted in the South Australian Civil and Administrative Tribunal potentially being unable to exercise its jurisdiction in relation to residential tenancy matters where one party resides interstate.

The bill allows that where SACAT is now potentially unable to exercise its jurisdiction, the Magistrates Court will effectively be swapped in to consider the dispute with the same powers and fees as SACAT. Advice provided by the Attorney-General's Department shows that there are around 700 cases that are impacted by the Burns v Corbett High Court decision. I am advised that these cases largely fall into the category of disputes where interstate landlords are seeking to either evict tenants or recover unpaid rent.

The High Court decision potentially also impacts on other matters within SACAT's jurisdiction which involves the exercise of judicial powers and involves residents of different states. However, advice received through the Attorney-General's Department suggests that SACAT is yet to identify any other matters that may be impacted. Officers from the Attorney-General's Department have also advised that the implementation of this bill will not have resourcing impact on the Magistrates Court, as SACAT officials will be appointed as auxiliary judges.

The Attorney-General, or whomever her representative might be at this point—I believe the Minister for Education—might like to expand on those points in their response. I also have some questions which I might read, given the hour, and the minister might take them on notice and respond between the houses rather than our going into committee. What other matters might be affected by the High Court decision and how will the resourcing work?

I am also advised that the other jurisdictions are affected by the Burns v Corbett High Court decision in different ways. For example, Victoria is currently considering how to deal with the matter, QCAT is a judicial jurisdiction rather than an administrative jurisdiction and therefore is not affected, and Western Australia and the Northern Territory do not appear to have bodies that are affected.

I would like to outline some of the questions for which we seek a response from the minister representing the Attorney-General:

What consultation happened in relation to this bill?

What kind of residential tenancy matters are dealt with under this bill?

Are there any concerns that the current regime, or the regime as outlined in this bill, affects overseas parties?

The lessee can often self represent but not have had much experience in litigation. Are there any residential tenancy matters that come before SACAT where the lessee can have legal representation?

Can we confirm that this amendment means that in any matter effectively transferred to the jurisdiction of the Magistrates Court the lessee can have legal representation?

Can the Attorney-General confirm that the effect of this amendment is to transfer the jurisdiction of the Magistrates Court to these matters?

How will SACAT officials be appointed as auxiliary magistrates or judges?

How will the resourcing effect this?

What is the budget that the government has set aside for this?

What is the reason that SACAT bailiffs are undertaking what will be magistrates' work under the proposed section 38G?

Is this a no-cost jurisdiction?

What will the costs be for appeals to the District Court?

They are the opposition's questions. I am sure the minister will take them on notice and reply to the other place where my learned colleague the Hon. Kyam Maher, who has primary carriage of this matter as shadow attorney-general, will, I am sure, have other questions and other detail he will wish to explore in the committee stage there. With those words, I indicate the opposition's support of this bill.

Mr PATTERSON (Morphett) (21:26): I rise tonight to speak on the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018. This is an emergency bill to deal with an issue that has arisen recently from the High Court. Essentially, it has been determined that the South Australian Civil and Administrative Tribunal (SACAT) does not have jurisdiction in matters of a judicial nature between residents of different states. Instead, this must be handled by a court pursuant to chapter III of the constitution.

SACAT itself deals with housing disputes in South Australia in relation to landlords and tenants about a residential tenancy agreement, residents and proprietors about a rooming house agreement, residents and operators of non-premium retirement villages, and residential park residents and owner operators. SACAT does not decide on disputes between tenants themselves, disputes about holiday rental agreements, disputes between landlords and agents, residential tenancy or residential park disputes where the claims are over $40,000, or commercial tenancy disputes.

SACAT itself provides a cost-effective and quick tribunal process that allows disputes between tenants and landlords to be ruled upon without either party having to go to court and incurring the increased costs that path would create for both parties. Prior to reaching a dispute that is decided upon by SACAT, under the Residential Tenancies Act tenants would first have to breach the lease agreement.

Some of the conditions where they might breach such an agreement are if they fall more than 14 days behind in rent, if they cause or allow damage, if they do not keep the property reasonably clean or do not comply with other lawful conditions included in the lease.

At this stage, the landlord can give the tenant a legal notice that identifies the problem as well as the date by which the tenant needs to leave the property if the problem itself is not fixed. If the tenant does not remedy that breach and does not leave on their own, at that stage the landlord can apply to SACAT for termination and vacant possession. That is what this bill seeks to address.

It is also worth noting that landlords can also be in breach of the Residential Tenancies Act—for example, if they do not respect a tenant's peace, comfort or privacy, including giving the right of notice for entry, or if they do not maintain the property in reasonable condition. Therefore, the tenant can also give a legal notice to the landlord which identifies the problem and advises that if it is not fixed they would move out as well. These are some of the instances that could lead to a dispute where SACAT would have to rule.

What has brought this bill before us is that the High Court in Burns v Corbett held that a dispute held before the New South Wales Civil and Administrative Tribunal did not have jurisdiction to deal with that dispute before it because it was a judicial dispute between residents of different states. On that occasion, the court heard that under the Australian Constitution and the commonwealth Judiciary Act 1903, only a Chapter III court exercising federal judicial power can resolve these disputes.

Subsequent to this ruling, 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 SACAT did not have jurisdiction to hear residential tenancy disputes where one of the parties was resident interstate. So, under the Residential Tenancies Act 1995, these were matters that could only be heard by courts exercising federal judicial power.

Consequently, the Attorney-General instructed the Crown to intervene on this point of law in a residential tenancies dispute before SACAT that involves residents of other states. The immediate concern is that there is no appropriate body to resolve these residential tenancy disputes between residents of different states under the Residential Tenancies Act 1995. This act has the provision to deal expediently with tenancy disputes, as I have previously mentioned, which will then include making vacant possession orders and using the South Australian Civil Administrative Tribunal bailiff to enforce them.

SACAT has advised that the Burns v Corbett decision could affect between 700 and 800 matters per year, with landlords in affected cases unable to collect rent or evict tenants under the Residential Tenancies Act.

Consequently, urgent action is required to address this matter, and the government has prepared this bill, which amends the South Australian Civil and Administrative Tribunal Act 2013 and also 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.

In terms of what we are doing, the bill provides jurisdiction for the Magistrates Court to resolve residential tenancy disputes and it will have the same powers and functions as SACAT when required. If, following an application made to the tribunal, the tribunal considers that it does not have or there may be some doubt as to whether it does have jurisdiction to determine the application, because its determination may involve the exercise of federal diversity jurisdiction, and also that the tribunal would otherwise have had that jurisdiction enabling it to determine the application, then the tribunal may order that the proceedings of that application be transferred to the Magistrates Court.

These amendments mean that the Magistrates Court is now able to exercise all the powers and functions of SACAT in dealing with such matters. The current members of the SACAT hearing residential tenancy disputes will be appointed as auxiliary magistrates, and there will be little practical difference for parties and no issue for courts, as a member of SACAT can swap with the magistrate to ensure that court time is not lost.

In the interim, while we are considering this bill, the Commissioner for Consumer Affairs has the power to refund bonds to landlords in instances where SACAT has dismissed an application and it has been referred back to the commissioner. It should be pointed out that this is only occurring where tenants have not responded to the landlord's claim, thereby offering some form of compensation for landlords while this issue is being addressed.

The same costs that apply to SACAT, which are quite low and assist both tenants and landlords to resolve disputes quickly, will apply to this same matter if it is heard by a magistrate. Practically, the matter may still be heard in the same location with as little disruption as possible to both parties. So, for all intents and purposes, the disputing parties will be receiving a SACAT decision; however, the order will formally be a magistrate's order to conform to the constitution.

Picking up on some of the questions that the member for Kaurna asked previously, the government has consulted with the courts and SACAT regarding the drafting of this bill. While SACAT has not identified any areas other than residential tenancies that would require transfer to the Magistrates Court, it is noted that this bill is not just for residential tenancies. It is a general provision allowing the Magistrates Court to step in where SACAT does not have jurisdiction because of Burns v Corbett.

These amendments will be implemented to streamline as best as possible the handling of affected members so that the impact on parties is minimised. I commend the Attorney-General for acting so quickly on this matter. It is another example of a hardworking Marshall Liberal government, and I commend the bill to the house.

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (21:35): In closing the debate, on behalf of the Attorney-General I thank all members who have made contributions to this debate. I thank the member for Stuart, the member for Kaurna and the member for Morphett.

I note there were a number of questions raised during the second reading address from the member for Kaurna. I commend the contribution made by the member for Morphett to those opposite and to the shadow attorney-general in another place to answer some of those questions. The member for Morphett is an outstanding example of a hardworking member of parliament. He has been paying attention during his briefings, and I commend that activity to all members who attend briefings.

I would like to assist the house and the opposition by confirming that we will take on notice the questions raised by the member for Kaurna in his contribution and provide information to the opposition between the houses, and I am pleased to confirm that that will happen. This is important legislation. The Attorney-General has acted swiftly in ensuring that it is brought to the parliament, and I thank the officers and counsel who have prepared this legislation. I commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (21:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 21:37 the house adjourned until Wednesday 20 June 2018 at 10:30.