Bills

South Australian Employment Tribunal (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 December 2018.)

Mr PICTON (Kaurna) (12:21): I rise today to speak in relation to the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018. It is another one of these miscellaneous, tidy-up bills that are subject to the action agenda for real change or something.

The Hon. V.A. Chapman interjecting:

Mr PICTON: Yes, but this is the sort of stuff you have been waiting 16 years in opposition, Deputy Premier, to bring in.

The Hon. V.A. Chapman interjecting:

Mr PICTON: That's right, and we are waiting for some action agenda for real change, and we do not have it. What we have is this tidy-up of a decision that was made by the High Court. This change absolutely needs to occur. We support that change, but it does go to show that this is a government devoid of any agenda whatsoever.

I rise today to indicate that Labor will support this bill and that I will be the lead speaker. You will be glad to know that I will not be using my unlimited time on this miscellaneous piece of legislation. It is worth noting that the opposition is supporting the version of this bill that was amended in the other place, as distinct from the version that was initially introduced by the Treasurer in the other place. This is an important point and one I will expand on later.

The purpose of the bill is to address a potential constitutional concern. This arose from a recent High Court decision in the matter of Burns v Corbett in 2018. The court in that decision held that, under the Australian constitution and the commonwealth Judiciary Act 1903, only a Chapter III Court could deal with a dispute that involved federal diversity, and the SA Employment Tribunal, as with a number of tribunals in the state, was not regarded as a Chapter III Court.

We also saw that in relation to the operation of SACAT, and Labor supported the passage of a bill to resolve the problem of having one of the participants in the proceedings from interstate, where it is of an administrative nature. The bill before us addresses a similar matter, the Burns v Corbett High Court decision and what it means for the decisions of the South Australian Employment Tribunal. More specifically, courts of the state are prevented from exercising federal judicial power in relation to matters, including disputes involving the commonwealth, disputes involving other states and disputes involving residents of different states.

This bill seeks to remedy the federal diversity issue, and Labor supports this component of the bill. As I alluded to earlier, a portion of the original bill was defeated in the Legislative Council. That part of the bill is in relation to the reinsertion of a maximum amount of compensation of $20,000 that can be awarded by an industrial magistrate.

I am advised that this measure formed part of the scheme previously until it was transferred to the industrial magistrate jurisdiction to hear. However, the bill allows the $20,000 limit to be exceeded by an award of compensation by referring a matter to a judge of the South Australian Employment Court rather than being heard by an industrial magistrate. This component of the bill was an unnecessary amendment. It would have only caused complexities and extended proceedings and waiting times for those who were seeking justice. That is why the opposition opposed this component of the bill in the other place. There should be no cap.

The judges of the South Australian Employment Tribunal are more than competent and able to exercise the discretion wisely, as they have done so to date. We have not seen what evil that provision sought to remedy, or what has been the outcry with the $20,000 limit being removed. As I said, we did not support that portion of the bill in the other place. Of course that does not appear before us now, and we hope that it is not sought to be reinstated by the Attorney when we get to the committee stage. The lack of that provision means that we have no hesitation in supporting the bill in its current form. With those few words, I again indicate the opposition's support for this bill.

Mr TEAGUE (Heysen) (12:25): I rise to speak in support of the bill. I have listened to the contribution of the member for Kaurna, and I would just indicate that this is a subject matter that requires legislation in order to remedy a legal matter that was the subject of a decision of the High Court earlier this year. If there were a way to deal with it otherwise, then we would, but it needs to be legislated to overcome a problem of jurisdiction that has been identified by the High Court. So on we go and legislate in response to it, as we should.

The relevant decision is that of Burns v Corbett, which was handed down on 18 April this year, and may be found and read at [2018] HCA 15, and concerns the question of the exercise of federal judicial power. In that case, the matter that was before the court was a matter of a number of complaints that were made to the Anti-Discrimination Board of New South Wales. It was a procedure that was then referred to the administrative decisions tribunal of New South Wales and a complaint that was referred to the Civil and Administrative Tribunal of New South Wales.

The subject matter that came before the High Court related to the exercise of jurisdiction by interstate tribunals. It has had the effect of bringing into focus the extent of jurisdiction of tribunals across Australia, including tribunals in South Australia. As we know, to the extent that the decision in Burns v Corbett has affected the South Australian Civil and Administrative Tribunal, that matter has been the subject of legislation earlier in this year, namely, the Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018.

Insofar as it then relates to the subject matter of this bill, it concerns the effect on the jurisdiction and proper authority of the South Australian Employment Tribunal. I will turn in a moment to how this bill specifically deals with the way that those matters will be treated in the South Australian Employment Tribunal context. Just before I do, I refer to the proceedings that were ultimately before the High Court in Burns v Corbett. They are described in paragraphs 6 through 14 of the High Court's decision.

I will not otherwise rehearse the High Court's decision, but suffice to say that it determined that in that case the New South Wales Civil and Administrative Tribunal (NCAT) did not have jurisdiction to decide a proceeding between a resident of New South Wales, a resident of Queensland and a resident of Victoria. In paragraphs 24 to 26 of that decision, the High Court summarises the relevant constitutional structure within which that decision is necessitated. It is that I wish to reflect on for a moment.

As honourable members would be aware, the 1901 Commonwealth Constitution on Federation provided in section 71 that state courts would continue to exist and have jurisdiction to the extent that jurisdiction is conferred upon them by the commonwealth. Those courts are otherwise known as Chapter III Courts, section 71 being part of chapter III of the constitution. The commonwealth went ahead to legislate in that regard and the Judiciary Act relevantly provides, by section 39, for the conferral of federal jurisdiction upon state courts. So we have a constitutional structure that requires the conferral of federal jurisdiction upon state courts by that process.

Unlike in other countries around the world, that was then exercised so as to provide that federal jurisdiction to state courts, and that is the structure we have operated under ever since. However, the conferral of federal jurisdiction—the subject of the Judiciary Act—has limits. As the High Court has set out in Burns v Corbett, section 39 of the Judiciary Act excludes the jurisdiction of the state courts where the High Court has original jurisdiction, or where original jurisdiction can be conferred on it, and then invests state courts with that jurisdiction, subject to certain conditions and restrictions. At paragraph 26:

The effect of these provisions of the Judiciary Act is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, including matters between residents of different States, is an exercise of federal jurisdiction.

The problem arises from the scope of the conferral of federal jurisdiction that is the subject of the Judiciary Act.

Before I proceed, I note that, insofar as this relates to the effect on the South Australian Civil and Administrative Tribunal, it has been the subject of an article by Eliza Burgin of Anthony Mason Chambers that was published in the Law Society of South Australia's The Bulletin in October 2018. The article provides a useful summary, particularly in terms of the South Australian Civil and Administrative Tribunal's response to the decision.

The SACAT is in a different situation from the South Australian Employment Tribunal because SACAT does not sit alongside its own specialist court. The treatment of jurisdiction in the SACAT case is somewhat different from what is now legislated and the subject of this bill. The result of the Burns v Corbett decision, insofar as it affects the South Australian Employment Tribunal as provided for in the bill, is to establish a process for matters that would involve the exercise of federal diversity jurisdiction to be referred from the tribunal to the South Australian Employment Court. That is the subject of clause 4 of the bill, which would insert new section 6AB in the South Australian Employment Tribunal Act 2014.

It will therefore expressly provide that where the matter would otherwise fall within the jurisdiction of the tribunal but involves the exercise of federal diversity jurisdiction, or the determination of the matter would be within the jurisdiction of the tribunal but for the fact that the exercise of the jurisdiction would involve the exercise of federal diversity jurisdiction, then the jurisdiction must be exercised by the tribunal sitting as the South Australian Employment Court. There is the stipulation and the referral.

The bill then provides for the process for a hearing before the tribunal to be referred to the South Australian Employment Court, and such a proceeding is described and defined as a 'diversity proceeding'. The bill further provides two important steps in relation to that referral and the exercise of jurisdiction. Firstly, the South Australian Employment Court, when receiving a diversity proceeding, may not be constituted by supplementary panel members. It also provides for proceedings of the court that would otherwise have involved supplementary panel members to be constituted and completed by the court in the absence of such panel members.

The further aspect of that referral process, in relation to jurisdiction, permits the South Australian Employment Court so constituted to consider the matter and, if it is satisfied that the matter does not, in fact, involve the exercise of a federal diversity jurisdiction, then to remit it back to the tribunal as originally constituted and to make any orders as may be necessary to facilitate the determination of the proceedings. So the bill provides a process for referral from the tribunal to the court, but it does not, by doing so, create a straitjacket for the court in circumstances where the tribunal would in fact properly have jurisdiction. The court remains able, through that process, to remit the matter to the tribunal where it forms a view that the tribunal does properly have jurisdiction to go ahead and hear and determine the matter.

The bill also contains savings measures in relation to orders that are made by the tribunal and the recovery of any amount that is specified in the purported monetary order so that it may be recovered in the appropriate court, and a penalty provision in the event that someone were to contravene that purported order of the tribunal. So, there is a savings provision with appropriate penalty in relation to any contravention.

In dealing with the jurisdictional issue that has arisen as the result of the decision in Burns v Corbett, the government has dealt, firstly, with the circumstances faced by the South Australian Civil and Administrative Tribunal, and it has done so earlier this year in a way that fits the circumstances of that tribunal. In proceeding to deal with very much the same jurisdictional problem insofar as it affects the South Australian Employment Tribunal, it has dealt with it by way of referral to a court invested with federal jurisdiction that happens, conveniently, to be within the structure of the Employment Court so as to ensure, in line with the process of conferral of jurisdiction in accordance with the commonwealth's Judiciary Act and the constitution, that such matters are dealt with by a court invested with that jurisdiction pursuant to section 39 of the act.

The remedy is a practical one. It is not creating any fresh issue other than to ensure that matters that come before the tribunal and that happen to involve parties resident in different states representing the Burns v Corbett issue can be dealt with, and those who find themselves coming before the tribunal can do so, and continue to do so, with confidence. I commend the bill to the house.

Mr PEDERICK (Hammond) (12:45): I rise to support the South Australian Employment Tribunal (Miscellaneous) Amendment Bill 2018. I acknowledge that we are in this position with this legislation because of a constitutional issue raised in the High Court decision of Burns v Corbett [2018] HCA 15.

The constitutional issue is that the Burns v Corbett decision concerned the exercise of the New South Wales Civil and Administrative Tribunal's (NCAT) jurisdiction under the Anti-Discrimination Act 1988 (NSW), which is the equivalent of South Australia's Equal Opportunity Act 1984. The decision applies to prevent bodies that are not courts of the state, within the meaning of section 77 of the Commonwealth Constitution, from exercising federal judicial power in relation to one of the subject matters under sections 75 and 76 of the Commonwealth Constitution, which relevantly include disputes in which the commonwealth or a commonwealth agency is a party, disputes involving a state or state agency and a resident of another state, and disputes involving residents of different states.

The Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 has been enacted to address the Burns v Corbett issue in relation to the jurisdiction of the South Australian Civil and Administrative Tribunal (SACAT), and the approach taken in relation to SACAT was to confer jurisdiction on the Magistrates Court. In relation to the South Australian Employment Tribunal, the South Australian Employment Tribunal Act 2014 (the SAET Act) establishes the South Australian Employment Tribunal. Importantly, the characteristics of the South Australian Employment Tribunal are different from those of the South Australian Civil and Administrative Tribunal.

There are two parts to the South Australian Employment Tribunal: the tribunal and the tribunal in court session, otherwise known as the South Australian Employment Court. Whilst the South Australian Employment Court is likely to be a court of the state that can determine disputes involving the exercise of federal jurisdiction, the Crown Solicitor's Office has advised that legislative amendment is suggested to ensure that jurisdiction to determine such matters is directly vested in the South Australian Employment Court.

There has been a question raised about how many proceedings are affected, and that number has not been arrived at. As I have indicated, it is unclear how many South Australian Employment Tribunal proceedings may be affected by the Burns v Corbett decision. There is currently one case before the South Australian Employment Tribunal brought under the Equal Opportunity Act 1984, McDonald v South Australia, where argument has been adjourned pending consideration of the issue.

The McDonald case involves a resident of Victoria, who is the complainant, who contends that the Parole Board has unlawfully discriminated against him. This amendment will remove any doubt as to the South Australian Employment Court's jurisdiction to hear proceedings involving federal diversity jurisdiction and will prevent the Burns v Corbett issue arising in subsequent proceedings.

What is happening with this legislation and with the introduction of this bill to this place is that the bill inserts a new section 6AB into the South Australian Employment Tribunal Act, which has the effect of directly vesting federal diversity jurisdiction into the South Australian Employment Court. The bill also addresses a consequential issue that has arisen in relation to supplementary panel members (SPM). These are people with special industry or subject matter expertise who may sit on tribunal matters as supplementary members.

The Equal Opportunity Act 1984, the Education Act 1972, the Technical and Further Education Act 1975, the Fire and Emergency Services Act 2005, the Public Sector Act 2009, and the Work Health and Safety Act 2012 allow the President of the South Australian Employment Tribunal to elect to constitute the tribunal with a member and one or two supplementary panel members (non-judicial members). However, the South Australian Employment Court can only be constituted of judicial members (see section 19(1)(a) of the SAET Act); therefore, an inconsistency is created between section 19 of the SAET Act and the six acts.

As per the current section 4(1) of the SAET Act, other legislation—for example, the six acts—has priority over anything inconsistent with the SAET Act. Therefore, the bill contains a provision which makes it clear that SPMs cannot be members of the SAET, sitting as the South Australian Employment Court, in proceedings involving federal diversity jurisdiction. This is legislation to clean up any confusion over who has jurisdiction.

Being involved in politics as I have been before I was a member, but also as a member of parliament in my 13^th year, you hear these conspiracy theories that some people pursue about what is constitutional and what is not. From what I understand, there is a federal challenge that dates back to 2007 in regard to proceedings in the federal parliament, and there would be other procedures on the go as well. But it is essential that we do the right thing with this legislation, as we are, and tidy this up so that we do not have court time being filled up.

This is the relevant legislation to do that, and it is highly appropriate. It will make it clear to all parties involved that we can get on with the job and in due course have an act in place that supports what we are trying to attend to here today. With those few words, I support the legislation and commend the bill to the house.

Debate adjourned on motion of Dr Harvey.