Bills

Statutes Amendment (SACAT) Bill

Committee Stage

In committee.

Clause 1.

Ms HILDYARD: Attorney, you have just provided a list of stakeholders who were consulted on the bill. What were the responses from each of those stakeholders? Did any of those stakeholders raise concerns about their jurisdiction being transferred to SACAT and, if so, which stakeholders and what were their concerns?

The Hon. V.A. CHAPMAN: The consultation list, as far as industry bodies are concerned, I have provided to the parliament and refer to those. The two bodies that raised concern about the composition of the panel were the Australian Medical Association (SA) and the Australian Veterinary Association SA/NT division. Both of them raised the matters that I have indicated. I am advised that all the bodies, including those two to this extent, have no objection to the transfer to SACAT.

I have highlighted the couple of areas that those two raised, and we have incorporated that in the bill for good reason. The rest have no problem with it being transferred to SACAT. I hope I was clear in identifying that the three areas of jurisdiction that were not included in the original transfer proposal for 2014 are items that are being transferred in this bill as distinct from not being transferred at all. I hope I was clear about that.

The Hon. Z.L. BETTISON: In what form did the consultation occur? You have given quite a lengthy list of those that have joined under this bill. How did that consultation occur?

The Hon. V.A. CHAPMAN: Consistent with usual practice, the relevant stakeholders were emailed a letter with a copy of the draft bill inviting them to make a contribution.

Ms HILDYARD: How much additional funding will SACAT receive as a result of taking on these new jurisdictions?

The Hon. V.A. CHAPMAN: I am advised that the funding for the Health Practitioners Tribunal, the veterinary tribunal and the architects disciplinary tribunal will transfer to SACAT. Otherwise, SACAT will not receive extra funding other than what was already provisioned last year. I do not immediately know how much that was but, as I indicated in my response, I frequently consulted with Her Honour President Judith Hughes about not only the transfer of work that she has received but extra work that is being transferred over a period of time.

Amazingly, she has frequently indicated that there is no impediment to her taking on the responsibility, bearing in mind that, for a lot of these areas of work, only a very small number of applications are likely to come before her. I have no doubt that, in the efficient way she manages her tribunal, she will soon let me know if that situation should change. In relation to medical practitioners and veterinary and architectural professionals, a body of work comes with that and the money comes with it.

Ms HILDYARD: Did any bodies raise issues about resourcing in relation to their transition to SACAT? If so, have those bodies raised issues about resourcing previously?

The Hon. V.A. CHAPMAN: One party, the Australian Veterinary Association, SA division, which I have referred to, raised a question of cost. I will outline in a moment what they said. I am advised, however, that it is not anticipated that there will be any change in the cost of operating the board transferring to SACAT, in relation to the cost of the SACAT doing it, including their own efficiencies of scale that they operate.

This is what they said. Part of it is a table, so I am not sure whether I can table that document, but I will quickly try to indicate what it says in the submission:

The costs of veterinary registration are higher in South Australia than in any other state or territory. Over the last five years there have been significant increases in fees charged. Since 2015 fees have increased by over 56%:

I interrupt myself to say that that is not my fault. That is presumably the time before our government. In any event, in 2015 they set out a registration fee of $435. By 2019, it is $680. They go on to say:

When compared to other jurisdictions, South Australian fees are significantly higher—over double the average fee. Current general registration fees in other states and territories are:

ACT NSW NT QLD TAS VIC WA

$433 $300 $116 $256.60 $384 $370 $465

The AVA is concerned about the incorporation of the Veterinary Practice Act 2003 into the jurisdiction of SACAT, this will increase the cost of the disciplinary process and put further upward pressure on veterinary registration fees in the state.

As such, we seek further clarification on the likely cost implications of the Draft Bill.

I confirm, on the advice I have, that there is no anticipated increase in cost.

The Hon. Z.L. BETTISON: Obviously, in the form that you are seeking to achieve with SACAT, how many staff—

The Hon. V.A. CHAPMAN: Are we still on clause 1?

The CHAIR: We are still on clause 1, which is the title.

The Hon. Z.L. BETTISON: Yes.

The CHAIR: Could you begin your question again, please, member for Ramsay.

The Hon. Z.L. BETTISON: My question is: how many staff and tribunal members do you foresee there will be under this new form of the tribunal?

The Hon. V.A. CHAPMAN: Let's be clear: there is no new form of tribunal. The SACAT is the South Australian administrative tribunal. For the purposes of administrative review, it comprises a Chief Justice of the Supreme Court as president, deputy presidents, senior members, registrars and, I think, commissioners; I cannot remember. We have a number of people, as with the South Australian Employment Tribunal, who are parties to assist in mediation, etc.

What is going to be applied by the SACAT for the purposes of hearing these matters with the assessors, which are outlined as to who should be there in relation to the hearing of matters, as I understand it is yet to be determined finally. There are not new people; the board will be dissolved. The SACAT administration will take responsibility for that. A large part of this legislation is to transfer that role and to, obviously, establish a list of assessors to be able to do that.

Again, to be clear, whilst we are transferring here in this bill the role of disciplinary conduct and so on, in relation to the health board, that will be dissolved. The veterinary and architectural boards will continue to operate, but their responsibility in relation to these aspects are being transferred to SACAT, but they are still operating for the purposes of their own registration arrangements. Part of their responsibility is being transferred to SACAT as distinct from all their responsibility.

The Hon. Z.L. BETTISON: A clarification of that last point—

The CHAIR: Member for Ramsay, before you seek that clarification, I am just going to say that there are 200 clauses in this bill. This particular question may have been more applicable to one of the clauses on the way through. The Attorney has chosen to answer it, so you can seek clarification.

The Hon. Z.L. BETTISON: I have one more question after this, but my clarification is whether it is possible for you to take on notice and come back to the house as to how you intend to see how many people will be part of SACAT.

The Hon. V.A. CHAPMAN: That is not a matter, to be frank, for our determination as a parliament. The convening of the bodies for the purposes of assessment are set out in each of the acts we are changing here as to who sits on them and how many assessors sit with them, and then the practical application of that will be determined by Justice Judy Hughes as to her distribution of those for the purposes of who is going to be doing the work.

For example, there are some areas which I would expect Her Honour would consider to be ably undertaken by a senior member of the tribunal. In more complex matters, she may take the view that the body of assessors should sit with a deputy president. But I cannot immediately come back to the committee to identify how that is going to operate until Her Honour is consulted on those matters.

The Hon. Z.L. BETTISON: In my previous role as minister for social housing, we were regular users of SACAT. What are your expectations about time lines? Are there KPIs, for example, that you would expect to be met?

The Hon. V.A. CHAPMAN: I am assuming the member is referring to the residential tenancy role that has been now a core base of work for SACAT. Whilst that jurisdiction is not being amended in any way in relation to this legislation, I am happy to answer. I see the residential tenancy work—formerly by the Residential Tenancies Tribunal and now for several years by SACAT—as a difficult area.

It always has been, because we are dealing with tenancies often relating to people who are in a financially vulnerable situation, mostly in the tenant's circumstance. The landlord might be the South Australian Housing Trust or a private company, many of which we have found under the High Court decision, which has been referred to by the member for Heysen, as being registered in Melbourne. Therefore, we have had to transfer jurisdiction to the Magistrates Court to deal with these matters because the tribunal did not have sufficient jurisdiction, so the corporate decision had some issues relating to it. Anyway, we have addressed those.

It may also have landlords who are private individuals. It has frequently been problematic because it is a difficult area of decision-making, often where the tribunal is being asked to make a decision about terminating a tenancy due to unpaid rent, illegal conduct, behaviour generally in relation to occupation or unreasonable interference by those who own the property or their agents. So it has often been problematic.

One of the areas our government is currently having a look at, in my department, is how we might look at this vexed question of bonds. As the member would well know from her position as a former minister, people who are in an impecunious circumstance may have to have their bond paid by a government agency because they are not able to come up with the money for security of the tenancy, so that is also a burden in relation those cases.

Also, we now have the phenomenon of people in residential tenancies, particularly those who are very vulnerable financially, having to change tenancies—sometimes it is because they are chasing employment or they have a change of employment; sometimes it is because they are looking to provide a secure accommodation away from a potential domestic violence circumstance. People have to change tenancies and they frequently do. Bonds have to be refunded if they have left the premises without outstanding rent or damage to property, and they need to be able to get the money to pay for the next residence.

The frequency of changing residential tenancies has placed us with a contemporary issue; namely, how can we better deal with this in the prompt processing of bonds or what other models or products can we develop that might assist in this situation to give reassurance to the owner of the property, which might be a government agency or a private operation or, as I say, it might be some company in Melbourne, and at the same time give access to money that the tenant might need to be able to move on to the next property.

I am pleased to say that the Real Estate Institute of South Australia has been working with our agency to provide a pilot in relation to a new product. I hope in due course to be able to report to the parliament how that might progress, but we just have to deal with the contemporary issues that are there. What effect will it have in relation to the areas of the minister's former portfolio? I cannot be certain, but I will say this: in that area of work, together with the guardianship work—which again is another area of high demand for personal interaction and support, frequently of the litigants—my experience in opposition and in government is that SACAT has, notwithstanding being a new institution, worked quite well.

There are still some practical individual problems, but the co-location of the agencies, particularly in those two large fields, has been a significant advance in the practical and efficient operation of that tribunal. I think it has significantly advanced in recent months as a result of that transfer late last year, and I am confident that will continue. I am absolutely certain that if the president of the tribunal were in any way to see a situation where there would be some delay or deficiency in operating her tribunal she would let me know. I meet regularly with her, and she gives me up-to-date assessments.

I cannot tell you exactly what the KPIs are; I would probably have to go back and check the budget papers. However, like most operating agencies of government, there are KPIs set. For example, a number of other courts have to give annual accounts to this parliament, sometimes separately to me as Attorney-General, of the time frame in which they have delivered judgements and the time frame in which they have listed cases for trial, completion of them, etc. There are different KPIs relating to whatever tribunal or court operates, and some of those are published annually in the budget.

Notwithstanding the former premier streamlining annual reports and budget papers—I am not sure whether he streamlined the budget papers, but he certainly moved things around and kept transferring different agencies to different portfolios, which made annual comparisons a little bit confusing—I recall former premier Weatherill issuing an edict in relation to annual reports to the parliament of the agencies of government.

Some of them were not too happy about it I heard at the time and have since found out, and they did not feel that there was to be any impediment to what they reported to parliament. I will give one example: the Guardian for Children and Young People, who has the statutory protection of this parliament, as a result of Mr Mullighan's inquiry and recommendations, she or he (whoever holds that role) is not to be in any way interfered with in the reports they give to parliament.

Special statutory protection has been given, so when the providers of these annual reports—sometimes they are commissioners and sometimes they are people who are advocates with a level of independence—have to report to parliament, unsurprisingly they might have felt a bit aggrieved as to the Premier's instruction in that regard, probably his edict in relation to not filling up the reports with colourful pictures or photographs, which might have helped to reduce the size of these reports.

However, in relation to key performance indicators, which the member has asked a question about, it also means that the statutory reporting is done but valuable information in these annual reports, which historically have been there, are somewhat streamlined. I think that is unfortunate; nevertheless, there is a reporting process. If statistical information on KPIs is not available on websites these days, of course it is available through freedom of information.

I do not see there will be any failing as a result of the transfer of these jurisdictions in that regard. I hope that is comprehensive enough to cover the honourable member's question.

Clause passed.

Clauses 2 to 62 passed.

Clause 63.

Ms HILDYARD: Attorney, what is the policy rationale behind moving the appeals or reviews from the District Court Administrative and Disciplinary Division to SACAT?

The Hon. V.A. CHAPMAN: In short, this relates to the Electoral Act of 1985 and transfers the current role of the District Court Administrative and Disciplinary Division. This is exactly the type of work anticipated and proposed by SACAT to undertake and, accordingly, in consultation with the Electoral Commissioner, is being proposed to transfer.

Ms HILDYARD: On the same clause, does the Electoral Commissioner support the change?

The Hon. V.A. CHAPMAN: Yes.

Ms HILDYARD: Attorney, what is the difference between an appeal, as the act is currently written, and a review, as proposed in the amendments? For example, are they enforceable in different ways?

The Hon. V.A. CHAPMAN: The appellate process is one which, I suppose, is fairly familiar; that is, the District Court is the recipient of a number of appeals, including in an administrative role. In relation to the matters we are transferring for review by the SACAT, there is a slightly different procedure in hearing them. Different reviews have been undertaken by different jurisdiction; some, for example—not in this act—relate to a review of a matter sometimes by judicial registrars in other jurisdictions, and they are very limited in what they can review on a question of fact or law, or both.

This is a slightly different model. The SACAT administrative review will take the form of a review of the decision that has been made administratively, sometimes by a government official, and they can introduce some evidence. It is not a de novo hearing, as we call it, but they can introduce some evidence. Rather than give you four pages of distinction, an appeal under the District Court Act is an appeal under section 43 and in the nature of a rehearing in the sense that it is an appeal stricto sensu confined to matters which are properly before the District Court but is subject to the exceptional power to receive fresh evidence.

I am advised that, in relation to the nature of SACAT's review of administrative decisions, it is a hybrid form of review that is broader than the equivalent review by the Administrative and Disciplinary Division of the District Court which must not depart from the decision of the original decision-maker except for cogent reasons per section 42E of the District Court Act.

However, a SACAT section 34 review is not a full de novo review, since section 34 provides that SACAT must examine the original decision by way of a rehearing and give appropriate weight to the decision of the original decision-maker, although SACAT may consider allowing additional evidence to be considered that was not before the original decision-maker, and must reach the correct or preferable decision. I hope that is clear. It is not as concise as I was saying but, hopefully, it makes it comprehensive and clear.

Clause passed.

Clauses 64 to 77 passed.

Clause 78.

Ms HILDYARD: Attorney, have the significant resourcing challenges faced by the Equal Opportunity Commission been addressed, or will they be addressed as a result of this transition to SACAT?

The Hon. V.A. CHAPMAN: The amendments proposed under the Equal Opportunity Act, as set out in part 11, are as a result of consultation with a number of bodies, including the equal opportunity commissioner; the South Australian Employment Tribunal, in particular the president, Justice Dolphin; and Justice Hughes, obviously, as President of SACAT. The equal opportunity commissioner has a number of mandated provisions of responsibility under the Equal Opportunity Act.

Unless the member wanted to identify any aspects of resourcing which she is seeking, as I understand it there is no effect on the resourcing of her agency vis-a-vis these amendments. So, regarding the reference by the member of her 'significant resourcing difficulties', I have to say that these amendments, I would suggest, have no impact whatsoever. I would further say that the equal opportunity commissioner, in discussing with me and advising on matters under review from decisions made in her agency, was very helpful in identifying how this occurs.

What she raised with me, which aided and supported the drafting of this bill, was a very important matter; namely, whilst the Equal Opportunity Act administrative review was being dealt with by the South Australian Employment Tribunal to date, it was clear that sometimes there is already a proceeding in the South Australian Employment Tribunal in relation to someone's workplace concern that is extant and, therefore, it would be practical for any referral for review to be able to be heard in the South Australian Employment Tribunal.

Rather than sending it off to SACAT and then SACAT saying, 'There is an existing proceeding over in this tribunal, therefore we will refer it,' it was thought expedient by the commissioner, for the parties obviously, for her to have power to refer the matter directly to SAET. In the ordinary course under these reforms, reviews of the commissioner's decisions would go before SACAT, but both she and SACAT have the power to refer it to SAET if, in fact, that is a more convenient forum for determination.

I thought that was a sensible way of resolving it and, accordingly, we have accommodated that situation. Giving the equal opportunity commissioner the power to do that was again in consultation with the President of SAET and the President of SACAT. As best as I understand it, everyone agreed on that and that was a sensible way to advance it. Interestingly, in the course of that consultation, apparently very few cases that are referred for review from the Equal Opportunity Commission to SAET actually involve another workplace dispute or concern.

Frankly, I was surprised by that. I just assumed that the South Australian Employment Tribunal was the recipient of this responsibility because of what would have been an overlap in a number of other cases. In any event, apparently that is not the case. It is more the exception than the rule that there is some other ongoing dispute or pending proceeding in SAET. Nevertheless, we have accommodated that and I hope that will work very well. Everyone seems to be in agreement and we are therefore presenting it to the parliament for approval.

Ms HILDYARD: Continuing on with clause 78, Attorney, will staffing levels and the level of other resources associated with progressing Equal Opportunity Commission matters be improved as a result of this transition? I will ask the next part of the question in a moment, otherwise I am going to give you about five questions in one.

The Hon. V.A. CHAPMAN: I am not certain what base you are coming from, but I do not see this operational transfer as having any impact at all. This is a review process of decisions that the commission currently undertakes responsibility for and will continue to do so. To clarify, I have used the word 'review', but their referral of complaints to the Equal Opportunity Commissioner, which she currently refers to SAET, will be transferred to SACAT as the alternate. Simply, we are transferring the review body, as distinct from any other work that she does.

Ms HILDYARD: I am hopeful that it might improve resourcing. I have one final question on this clause. I suspect there may be other questions on this clause from other members, but my final question on clause 78 is: does the Attorney envisage that there will be improvements in waiting times for members of the South Australian public to have complaints progressed through the Equal Opportunity Commission as a result of this transition?

The Hon. V.A. CHAPMAN: I do not think this will have any impact in relation to the progressing of matters in the first instance that go to the commission. It is up to the commissioner then to refer them. All the bill is doing is transferring who the body is that will hear those matters if she does not.

Mr SZAKACS: I apologise if this matter has been asked by the member for Reynell. Has there been an answer today in respect to the number of matters, based on previous figures, that the registry in SACAT will be likely referring to the SAET for hearing or determination under the bill?

The Hon. V.A. CHAPMAN: I am not sure whether the member is referring to the number of matters currently referred to SAET that are being proposed by this clause to be transferred over to SACAT. We could probably get those numbers for you. It is not a huge body of work, but it is an important body of work. If you are talking about all the matters of jurisdiction and the number of cases, I do not have that information before me at this point.

Mr SZAKACS: I am happy to clarify: it is the number of matters currently being determined by the SAET that would be referred to the SACAT under this amendment.

The Hon. V.A. CHAPMAN: I remember asking the President of SAET, Justice Dolphin, about numbers. I think one of the magistrates was largely doing the work at the Employment Tribunal. I think it is fair to say that the efficient operation of the commissioners at SAET who helped to resolve a number of these matters has also been useful, but we do not have the number. It was the president, Justice Dolphin, who informed me that very few of these cases actually have an existing matter in SAET in relation to some other workplace concern.

As I have previously advised the committee, this was of some surprise to me. I thought this would be something that was par for the course. Apparently, it is not. As I say, for the benefit of the member for Cheltenham, this transfer of responsibility from SAET to SACAT is in consultation with and approval by the equal opportunity commissioner, the President of SAET and the President of SACAT.

Mr SZAKACS: Would the Attorney be in a position to take on notice that question in respect of those matters that she had taken advice from the president on in respect of numbers?

The Hon. V.A. CHAPMAN: I will certainly inquire as to the number of cases that the equal opportunity commissioner has referred in the last 12 months perhaps or the last financial year. It is probably in her annual report or online, but I will have a look at it and provide that information.

Clause passed.

Clauses 79 to 159 passed.

Clause 160.

Ms HILDYARD: Can the Attorney expand on the policy rationale behind no longer requiring that the appointment of assessors need cabinet consideration and then appointment by the Governor?

The Hon. V.A. CHAPMAN: The only thing I would add in relation to this matter that I had not outlined in my contribution is that the member may not be aware that we are actually transferring a lot of the division of the District Court role to SACAT. In relation to assessors, the assessors that support the valuable work of the Administrative and Disciplinary Division of the District Court are assessors who are appointed already by the minister responsible for each of the acts. Whichever minister is responsible for each of the acts approves a list of assessors for the purposes of each of those acts.

At the moment, the Governor does not have a role in relation to these assessors. I think I gave the example that there are well over 100 proposed for the Health Practitioners Tribunal. You have seen the list; it is a massive list. Because there is no role of the Governor, who normally does have a role in relation to SACAT appointments—he does not currently have a role in relation to these in the District Court; it is done by the ministers—this is a way of transitioning to a similar process where a minister, in this case the Attorney-General, would deal with those, based on the recommendation of the President of SACAT.

It is not as though we are having an Executive Council approved list of persons in one jurisdiction and then we are transferring it over and weakening it, if we can put it in that category, to be just by a minister, as distinct from cabinet advice to His Excellency. We are really transferring the same. Because the SACAT Act makes provision for appointment of certain persons, it is now receiving this jurisdiction, and we are suggesting that it have a similar process.

At the moment, I think we are probably strengthening it a bit by having it as a recommendation of the SACAT president, which does not apply, I think, for other acts that are currently determined in the District Court Administrative and Disciplinary Division by District Court personnel with the support of these assessors.

I hope that makes it clearer for the member that we are not actually downgrading, watering down or reducing the level of supervision over this. We are transferring like for like and, arguably, introducing the SACAT president as a nominating or recommending party. If the member had any misgivings about the process of a ministerial appointment, she can be assured it comes on the recommendation of the SACAT president.

The CHAIR: Member for Reynell, before you ask your next question, the question you have just asked seemed to me to relate particularly to clause 161. What you indicated to me was that it was in relation to clause 160. We have passed up to clause 159, but I am also going to suggest that if we come to vote on clause 161, we need to vote on the right clause, if you follow my drift. I think I am right in saying what I have said. Your question related to assessors, which is clause 161. So I am going to put clause 160.

Clause passed.

Clause 161.

Ms HILDYARD: Attorney, what are the appeal rights for people in relation to decisions or reports or recommendations of assessors, and are those appeal rights consistent throughout?

The Hon. V.A. CHAPMAN: It is not the decision of assessors that is appellable. The assessors support and are party to a panel which is of SACAT. There may be a member—I suggested before it might be a senior member or a deputy president, for example—of SACAT, together with an assessor, or maybe two of them, and their decision as a panel is what is appellable, and in certain circumstances that can be appealed to a single judge of the Supreme Court.

I do not think there is any direct Full Court decision to the Supreme Court. There is an exception, that is, if that panel comprises Justice Hughes, who is the only judicial member of the tribunal at the moment. There is a section there that is vacant, which is a deputy president, which was filled by a part-time member of the District Court. Mr Rau, the former attorney-general, concluded her contract and did not replace her but appointed Justice Hughes as a full-time president, which used to be half time when Justice Parker had that responsibility. So there was some reorganising.

There is provision in the act for a deputy, but, as I say, it is not currently filled. If the president or deputy president, as judicial officers, form part of a panel then, unsurprisingly, it cannot go to a single judge of the Supreme Court—it needs to go to a Full Court of the Supreme Court—so there is that exception.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:15.