Statutes Amendment (Civil Enforcement) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms STINSON (Badcoe) (15:42): In continuing my remarks, I would like to inform the house that in relation to the Statutes Amendment (Civil Enforcement) Bill there are two changes that have been made since a similar bill came before this house before the last election.

First, in removing the requirement to obtain the judgement debtor's consent to a garnishee order over wages, which is consistent with the approach in other jurisdictions, the bill now legislates a minimum amount of weekly wages that must be preserved for the judgement debtor and that is 90 per cent of the national minimum weekly wage, as fixed from time to time.

Secondly, the other change that is significant in this bill is making it clear that garnishee orders may be made against funds held in a term deposit account. The bill also provides that payment cannot be required before the term deposit has matured. That is so that the judgement creditors, and debtors for that matter, avoid incurring fees or charges.

There are other amendments contained in this bill that remain the same as the previous bill that those opposite brought before us before the last election. They include an amendment to the Enforcement of Judgments Act to enable a judgement creditor to serve an investigation notice on a judgement debtor, ideally avoiding the need for court summonsed investigation proceedings. There is also an amendment to the Enforcement of Judgments Act to empower the Sheriff, by written notice, to require a judgement debtor or third party to provide information or documents disclosing the interests of third parties in real or personal property, which could be subject to a warrant for seizure or sale.

The next two amendments I will cover are very important. One is an amendment to that same act to clarify and broaden the Sheriff's powers to eject and proactively direct people not to enter land where the Sheriff is exercising a warrant for the sale of the land in order to enforce a judgement. Also, there is an amendment to the Sheriff's Act to allow for the Sheriff to enter into agreements with the Commissioner of Police, to enable and empower police officers to assist the Sheriff in the performance and exercise of the Sheriff's duties under the act.

Those two measures that I just mentioned are very important. It is sad that we even need those measures, but unfortunately I have learned of some matters as the local member dealing with constituents who found themselves in difficult circumstances. It is very sad when it comes to the stage where these orders have to be enforced, and sometimes that is a very traumatic and challenging time for a person who is a debtor to have such orders enforced against them, but we need to make sure that we empower and protect our public officers in the pursuit of their duties. They are carrying out these difficult tasks dealing with debtors who may be, for example, ejected from property on behalf of the state and on behalf of all of us.

It is really important that we have enough powers for the Sheriff's Officers themselves, but also for the police to become involved if the Sheriff's Officers see a need in order to protect themselves or others. I did speak on the last occasion in parliament about the important work that our Sheriff's Officers do, and I acknowledge that we have recently passed some legislation to protect them in our courts. With those remarks, I conclude my contribution in relation to this bill. Of course, it goes without saying that I support the bill.

Mrs PEARCE (King) (15:46): I rise to speak in support of the Statutes Amendment (Civil Enforcement) Bill 2022. This bill was introduced by the Attorney-General in the other place, which passed earlier this year. I understand it is largely the same bill as was introduced by the former Liberal government. It makes a number of changes to civil enforcement processes in the South Australian judicial system following a review undertaken by the Courts Administration Authority back in 2017.

In short, the bill addresses situations where a court has made an order for monetary payment by one party (the judgement debtor) to another party (the judgement creditor). Often, this sort of situation arises in the case of a breach of contract and other similar civil proceedings. Part 2 of the bill allows judgement creditors to serve investigation notices on judgement debtors. This notice would allow the court to investigate the debtor's means to repay the debt in question.

It is important to note that this new investigation notice provision does not replace the existing provisions of the Enforcement of Judgments Act, which allows for an investigation summons, but rather creates a supplementary, optional, less formal process that will reduce the legal costs and fees that might otherwise be incurred.

In the review undertaken by the Courts Administration Authority, it was noted that the current system is unnecessarily adversarial and an inefficient use of the courts' time. This amendment therefore helps to promote a more efficient justice system and reduces the overall cost of litigation. This bill also increases the range of circumstances in which the court can make garnishee orders, which are orders for a debtor's wages to be withheld for the purpose of repaying a court-ordered debt.

Currently, these garnishee orders can only be made with the debtor's consent, which the Courts Administration Authority review found to be out of step with modern practice in other jurisdictions. The bill therefore expands the power of the courts to make garnishee orders. This brings me to the particular point I want to make in relation to this bill, that is, the difference between the 2022 bill and the previous iteration introduced by the former Liberal government.

This bill reflects the Labor way of doing things. We are making our justice system more modern and more efficient, whilst also protecting the rights of low-income earners and those facing financial difficulties. Unlike the Liberals' proposal, this bill includes an additional safeguard: that debtors, who are the subject of garnishee orders, must be left with an amount that is at least 90 per cent of the national minimum weekly wage as determined under the commonwealth Fair Work Act.

In addition, the bill includes a new further protection where a garnishee order is being made against funds held in the term deposit. In that case, the order does not need to be paid until after the term deposit has matured. This small change will help ensure judgement debtors are not being faced with significant fees or charges for breaking a term deposit on top of the amount they already owe to pay the judgement debt.

The position being put forward in this bill is quite simple: people who have breached a contract, or otherwise are found by a court to owe a debt, should repay that debt. But the laws we pass in this place should not send people, especially low-income earners and working people, into further hardship and poverty.

It is simple amendments to bills such as this which show the contrast between Liberal and Labor governments. Wherever we can, Labor governments look for ways to improve fairness in the law, to protect working people and to try to ensure we are not forcing people into financial hardship unnecessarily.

I also note the work done by the Hon. Robert Simms in the other place, who put forward some further amendments to protect workers who might experience uneven earnings throughout the year—for example, seasonal workers, who experience high incomes at one point in the year but a lower income at other times, and who therefore may be disadvantaged if their income is simply averaged across the year. I am glad that the bill now incorporates amendments on this issue, which were put forward by the Attorney-General in consultation with the Hon. Robert Simms.

Bit by bit, we can improve our laws to make them fairer for working people. I support this bill, inclusive of the new changes made, which were not made in the 2021 iteration of this legislation. I look forward to continuing to work with the government to pass laws which not only promote a modern and efficient justice system but also treat people fairly.

Ms HUTCHESSON (Waite) (15:51): I rise in support of the Statutes Amendment (Civil Enforcement) Bill. In 2017, the Courts Administration Authority conducted a review of the civil enforcement processes in South Australia, and the recommendations of the review will be implemented through these amendments to the Enforcement of Judgments Act 1991 and the Sheriff's Act 1978.

It is the case that the previous government introduced the Statutes Amendment (Civil Enforcement) Bill 2021 (lapsed bill) into parliament in May 2021. At the time, it passed the Legislative Council in an amended form; however, it did not progress beyond the second reading stage in this house prior to the 2022 election. As such, this bill is being introduced here today with two changes to the previously introduced version, and I am in support of it.

The bill contains two changes to the previous bill to ensure that the measures do not disproportionately disadvantage judgement debtors. Whilst these people have had a judgement made against them and will need to pay the judgement creditor, it should be the case that they are able to continue to live on a wage that will allow them to pay their bills and put food on the table. As such, this bill will legislate a minimum amount of weekly wages that must be preserved for the judgement debtor, being 90 per cent of the national minimum weekly wage.

We are facing real pressure on the cost of living currently, and in order to ensure that penalties do not affect low-income earners more than those who are in a better financial situation, this bill will protect a minimum wage to ensure costs can be met. It would not be right to push someone into poverty, possibly causing desperation, loss of accommodation and impact to families in order to be able to pay their fine.

It will also be the case that garnishee orders may be made against funds held in a term deposit account. However, payment will not be required until the term deposit comes to maturity. Financial institutions apply penalties and loss of interest when a term deposit is broken, and enforcing payment immediately, leading to the term being broken, would only benefit the banks.

These two changes, together with the following other amendments, which are unchanged from the previously introduced bill, seek to balance the interests of judgement creditors who have had their day in court and won, and judgement debtors who may find themselves in positions of financial hardship.

The previously introduced bills sought to progress the following amendments, which this bill also seeks to achieve and are as follows:

amend the Enforcement of Judgments Act to enable a judgement creditor to serve an investigation notice on a judgement debtor, ideally avoiding the need for court summonsed investigation proceedings;

amend the Enforcement of Judgments Act to empower the Sheriff, by written notice, to require a judgement debtor or third party to provide information or documents disclosing the interests of third parties in real or personal property subject to a warrant for seizure or sale;

amend the Enforcement of Judgments Act to clarify and broaden the Sheriff's powers to eject and proactively direct persons not to enter land where the Sheriff is exercising a warrant for the sale of the land to enforce a judgement; and

amend the Sheriff's Act to allow for the Sheriff to enter into arrangements with the Commissioner of Police to enable and empower police officers to assist the Sheriff in the performance or exercise of the Sheriff's duties under the Enforcement of Judgements Act.

This amendment bill passed through the other place with the government introduced and supported amendments to the previous bill. With the support of the Greens, an amendment was made to ensure that the courts take into account circumstances where a judgement debtor's income may vary, such as casual or seasonal workers. This is reasonable as casual work is just that—casual. There is no security of wages or employment, and this needs to be considered when determining ability to pay.

Secondly, the Greens put forward the following amendment that was supported by the government, where a person who uses the information obtained through an investigation notice for an improper purpose will be deemed to have committed an offence. This will provide greater protections for litigants' personal and financial information.

This bill implements recommendations arising out of the review of the civil enforcement process in South Australia undertaken in 2017 by the Courts Administration Authority. It seeks to ensure that judgement debtors are not disproportionately disadvantaged and, with the above changes, I commend the bill to the house.

The Hon. A. MICHAELS: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Bill read a second time.

Third Reading

The Hon. A. MICHAELS (Enfield—Minister for Small and Family Business, Minister for Consumer and Business Affairs, Minister for Arts) (15:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.