Bills

Electoral (Electronic Documents and Other Matters) Amendment Bill

Committee Stage

In committee.

(Continued from 8 September 2021.)

Clause 36.

The Hon. D.G. PISONI: Chair, I draw your attention to the state of the committee.

A quorum having been formed:

The CHAIR: The house is in committee on the Electoral (Electronic Documents and Other Matters) Amendment Bill 2021. We are back, bright-eyed and bushy-tailed no doubt, and considering clause 36. The member for Kaurna has had three questions thus far. Are there any further questions?

The Hon. Z.L. BETTISON: We have obviously expressed our concerns about clause 36 and the change to having this decision being made around inaccurate or misleading information that is being advertised during this period. This is quite a significant change from having the Electoral Commissioner making a decision on this to its now going to the realm of SACAT.

I have had extensive experience with SACAT. As the former minister for social housing, we would often have to refer tenants who were not behaving correctly—in the worst-case scenario for them to be evicted, and it was a very long and very slow process. Even when I came into this house to review the Retirement Villages Act and we added SACAT into the responsible area to be able to mediate and make decisions about the resale or the reselling of the licence to occupy, there were concerns about the timeliness and the ability of SACAT to deliver and to deal with this issue.

In many instances, we know that it is about being efficient and being able to turn around concerns about inaccurate information very quickly during an election campaign. So we remain very concerned about whether SACAT is the right body to do so. My question is: given that often you will need a decision within less than 24 hours, what percentage of decisions are currently made in less than 24 hours in SACAT?

The Hon. V.A. CHAPMAN: I do not have that information before me. They do literally thousands of applications and, as the member has quite rightly pointed out, they have a heavy load of responsibility in relation to residential tenancy matters, guardianship matters and a number of other jurisdictions that over the years have been transferred by the former government—and us, I think, with a couple having gone by us—to SACAT and from the District Court and/or the Supreme Court.

So, yes, they have a busy workload but, as I indicated yesterday quite late in the night, and it may not have been immediately to the attention of the member when I was outlining this, it is agreed that the nature of the applications that would be sought to be dealt with under the Electoral Act do require prompt attention.

There is an expectation that the procedure would need to be heard urgently, maybe within hours, and at the moment the overload with the Electoral Commissioner is such in elections that he has outlined in his report all the challenges of even having that provision at all and that there has been an appetite by the political parties that in South Australia, unique as it is, we actually keep it. It is a mechanism by which we can keep some level of integrity during election campaigns. It is seen to be worthy of retention—I have not had an indication from all other minor parties—by the major parties, so we need to be able to work within an envelope.

I have had a meeting with Justice Judy Hughes, who is the head of SACAT, to outline her views in relation to the accommodation of expedited matters and she has indicated that she is a presiding president. She is a Supreme Court judge, but she is the President of SACAT, and dedicated magistrates would be the parties that would need to be allocated for the resource during election campaigns to provide that prompt resolution of matters—enforcement—which we canvassed late last night, including retractions and so forth.

That is the very nature of needing to do that in the situation we are in now with the electronic transmission of information. If it is false and misleading, and there is an unfair disadvantage or advantage to our party, then of course it needs to be expedited and dealt with promptly—absolutely. In short, they are up for the task. She has advised me that she has alerted the Chief Magistrate, because some of her magistrates are dedicated magistrates that sit within SACAT responsibilities for the services that SACAT provide, and so I suppose we just have to wait and see whether there is going to be any large number.

I outlined last night that it seems—certainly in the many elections I have been involved in over the last 50 years—that this has now become a very significant area of work, especially in the last week in elections. Last election, I seem to recall a very significant number of complaints against SA-Best, Mr Nick Xenophon. I know that because I was sending a few of them in, as were the other side. I am just letting you know that it is now a significant area of work, as highlighted in the report by the Electoral Commissioner, as to the challenges that they face as a commission in even having such a clause.

As I say, there seems to be no appetite to get rid of the clause, so we need to work out how we can do that. Do we employ particular magistrates? Well, there could be arguments for partisanship. Do we send it to the Supreme Court, of which there is a review already, which is an expensive process that would not provide expedited relief, necessarily. You could apply for injunctive relief, I suppose, but again it is very expensive.

So this was seen, in consultation with both the Electoral Commissioner and SACAT, the recipient body that might take up this challenge for us, to be the proposal. But, absolutely, both the Electoral Commissioner—who is having to deal with these matters, and/or his deputy during elections—and the president are alert to the necessity to have an expedited process and prompt relief or dismissal, whichever should apply.

The Hon. Z.L. BETTISON: I thank the Attorney for her explanation. Obviously, we still remain concerned about the ability and it is not because of the individuals involved.

In the time that I have been in this house, SACAT and the work that they do has increased dramatically. As I said when I did the Retirement Villages Bill back in 2016, SACAT was involved in that industry as a review body for the very first time. In fact, just the other day when we passed in this house the Aquaculture (Tourism Development) Amendment Bill 2021, SACAT is also the review body for that industry. Obviously, it is an industry that has not had anything to do with SACAT in the past, and SACAT has not had any involvement in that industry.

My concern remains about extra funding and resources for SACAT, because we have made a decision that the tribunal is the preferred course to go forward for review across a very wide range of areas. As the Attorney spoke about before, there is the Guardianship Board and I know for housing reviews and many others they have SACAT there. This will be unique for SACAT to have this role, I imagine, once the writs are issued, and to have that resourcing and funding to contribute. My question is: what additional funding and resources are SACAT going to be given?

The Hon. V.A. CHAPMAN: At this stage, I have had brief discussions, as I indicated last night, in relation to whether any other resources would be needed. At this stage, the president indicated she would allocate people for the purpose of doing the task, if the parliament determined that it was appropriate that her court take it up. I have indicated to her, of course, if there is anything else that she would need from us in respect of resourcing. To some degree, I think it is fair to summarise her comment on that is that she just does not know whether she gets one or 50 requests to be determined. It would be somewhat relevant to whatever the requirement might be, so it is a bit hard to model that.

I have indicated to her, of course, that is a matter that we would consider. Whether you take that away from the Electoral Commission and give it to SACAT, it is really just transferring one role to another, but they are all matters that we would have a look at. All I am indicating at this stage is she says she will allocate the appropriate personnel. She suggests that the category of persons to undertake that role would best be done by the permanent appointments. They are herself as a judge—she has permanency of appointment—and then as SACAT president, and the defined magistrates who are associated with that jurisdiction. That is a cohort with which she would organise her court to draw from, which I am pleased to hear, because it is at the senior level and I suppose minimises any partisan influence and all those things that could be a challenge.

At this stage, she has not asked for any extra money, but we have had some preliminary discussions if the parliament were to progress along this and it is clear that it would be asked to do a lot more work than perhaps was previously anticipated. Who knows the flavour of what this next election will be and whether there is a contribution from what seemed to be a heightened level of concern about matters by a particular party, which seems to have come and gone in the last election? It may influence that body of work, but it could be another group or more groups that are pushing the envelope even more about what they publish.

The Hon. Z.L. BETTISON: It has been raised many times, Attorney. We are 190-odd days from the next election, so timing is getting closer and closer. Of course, we have raised our concerns that we are actually dealing with this bill at such a very late stage in the election cycle.

The Hon. V.A. Chapman: She's ready to do it.

The Hon. Z.L. BETTISON: I do not doubt her capabilities whatsoever. My concern is this is a dramatic change from having the Electoral Commissioner involved in what is needed to be a very timely, urgent response. We need people who are experienced and we need people who are measured to have a consideration on that. That is our concern over here. At the moment, only the Electoral Commissioner can make rulings. If there are multiple people who sit on SACAT who could be tasked with making these decisions, what guarantee is there that rulings on identical complaints will be consistent?

The Hon. V.A. CHAPMAN: I do not know whether that is a query about the integrity of those who are officers of SACAT in their capacity to be able to make decisions and be consistent with precedent, but I just point out to the member that the Electoral Commissioner himself does not always deal with these matters. He can delegate those to deputies, and that has happened in the past where there have been determinations by other people in the Electoral Commission, so again the same thing would apply as to the consistency of determination and the distinguishing factors taken into account between different applications that come before each of them, and even consistency between elections, so that applies in any circumstances.

The Hon. Z.L. BETTISON: Just for clarity on that matter, in the current act as it runs, does the Electoral Commissioner have the ability to overrule another decision made within his commission?

The Hon. V.A. CHAPMAN: It is a determination of the commissioner. As the commissioner is the highest officer in the commission, I assume that certainly would be the case. Whether he has intervened in decisions of Mr Gully or others who have done this work, I do not know personally and I would not inquire. I would assume, because it is an administrative process at the moment, if there was a difficult case or matter where two heads were better than one, there may even be conferencing between the person tasked with the job and the commissioner. Whether they have done that in the past I do not know. I have not inquired and I do not think it is appropriate that I would.

Am I satisfied that they have been consistent? I can tell you that between different commissions they have not always been consistent, but they are not bound by precedent, which is another good reason for going to a judicial process, where there is some understanding of the significance of that. It is fair to share that the nature of the alleged infringement of false and misleading advertising varies.

I suppose that arguments would be put by one or other of the parties that there is a distinguishing feature of the alleged breach—the nature of it or the extent of it, or the alleged remedy that is being sought, that is, retractions, publication electronically, how quickly that occurs. All those sort of things change because we are now in the electronic world. With decisions under this legislation made by the commission or past commissions, I think it is probably a bit unfair to suggest that they would be bound by some precedent in that regard because they are fairly unique when they each come before them.

Are they qualified to make decisions? These are matters the commission have raised about continuing to undertake this role. They are explaining to us as a parliament that they have this job to do, but that these are all the problems that go with it, including that we are now in the electronic age, and how they are expected to deal with this. It is fairly unique, so this is not the first time the commissioner has brought to the attention of this parliament that we have given them a fairly difficult task to do. It is fairly unique in the country so, ipso facto, get rid of it.

As I keep saying, there has been an appetite from parties here in South Australia that we have a medium by which we can maintain a standard of integrity in relation to the truthfulness and fairness in relation to political advertising, particularly during campaigns. In the absence of there being any move by anyone to repeal this section completely, we need to work out who is going to arbitrate on it.

The CHAIR: I took the most recent question from the member for Ramsay as a point of clarification, otherwise I would have had to deem it four questions, so you are very fortunate, member for Ramsay.

The Hon. Z.L. Bettison: It was a point of clarification.

The CHAIR: It was, and you made that clear. Before I call the member for Hurtle Vale, I will suggest to the Attorney that she move progress, as there is something that we need to do.

Progress reported; committee to sit again.