SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: I ask the minister what the government intends as the time frame for the appointment of the president? I understand that the Attorney-General was keen to use this as an enabling act, as an act to establish the tribunal such that the president could work to develop the tribunal. In that context, I am wondering whether the government has an indicative time frame for the appointment.

The Hon. G.E. GAGO: I have been advised that the Attorney-General's preference is to make the appointment to the president's position as soon as possible after this bill has been proclaimed.

The Hon. S.G. WADE: Considering that the Courts Administration Authority budget for the 2013-14 year is predicated on the fact that the current level of judicial vacancies in the Supreme Court and the District Court is expected to be maintained to be able to maintain budget, I am wondering whether the appointment of the president will be an appointment to a current vacancy or whether it will be the appointment of an extra judicial officer.

The Hon. G.E. GAGO: I have been advised that that has not been decided yet.

The Hon. S.G. WADE: In terms of the SACAT budget, and the 2013-14 budget had a specific budget line for SACAT, I ask whether that SACAT budget provided for a judicial salary? Whether it is a vacancy or an extra appointment, is there funding within the SACAT budget itself for a judicial officer?

The Hon. G.E. GAGO: I am advised that we do not have that level of financial detail with us, so I am happy to take that on notice and bring back a reply.

The Hon. S.G. WADE: I thank the minister for that undertaking. I ask how many deputy presidents does the government intend to appoint?

The Hon. G.E. GAGO: I have been advised that while there is a capacity to have more than one deputy, the intention at this point in time is to only have one.

The Hon. S.G. WADE: In briefings and discussions with the Attorney, he has indicated that he has a likely shortlist for early adopters. My understanding is that Residential Tenancies Tribunal and the Guardianship Board were a couple of tribunals that might be looked at earlier rather than later. I was wondering if the minister might be able to indicate: does the government have a current short list of tribunals most likely to be transferred into the tribunal?

The Hon. G.E. GAGO: Yes, I am advised that the short answer is yes. A short list has been developed (obviously not finalised) but the shortlist includes the Residential Tenancies Tribunal, the Guardianship Board, and the Administrative and Disciplinary Division of the District Court. There are a couple of others. These have all been listed in Hansard in the other place. I do not have the list with me but they are on the record.

The Hon. S.G. WADE: The Attorney indicated, as you would expect, that there would be consultation with the tribunals and the communities they serve in developing the acts for the transfer of particular tribunals. Do I take it that formal consultation has not started on any other tribunal?

The Hon. G.E. GAGO: That is correct. Further consultation will resume once this bill has been passed.

The Hon. S.G. WADE: To remind honourable members, the act we are looking at today is very much a framework act. My understanding is that if this act passes, nothing will happen in the sense that there is no jurisdiction for it to exercise but as each tribunal act comes before the parliament the authority of the tribunal will grow and they will take that up. In terms of accommodation—

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: I thank the minister for confirming that is her understanding as well. In relation to accommodation, the government has previously indicated that the Sturt Street courts might be used as accommodation for the tribunal. Could I clarify whether that is still the intention? If so, when is it likely that the tribunal will take over the site?

The Hon. G.E. GAGO: Yes, the Sturt Street courts have been considered but no final decision will be made and will not be made until after this bill is in place.

The Hon. S.G. WADE: Is the Sturt Street placement, or for that matter any other possible placement, intended to be the long-term home of the tribunal or is it intended that SACAT become part of the new courts precinct?

The Hon. G.E. GAGO: It is too early to make those decisions. It will depend on who else might come into the building. Those are all decisions that will need to be made at a later date.

The Hon. S.G. WADE: Does the government have indicative figures as to the number of staff that it is anticipated the new SACAT will need? I appreciate that that will escalate, shall we say, over time, if it is one tribunal, two tribunals or three tribunals, but even if it was for the current financial year.

The Hon. G.E. GAGO: The member has really answered his own question. It is just too early to have those estimates. Obviously, as the tribunal develops and different components come in and are added to it, so too will the staff increase. However, at this point, no estimate is available. I am advised that work is currently being done though.

The Hon. M. PARNELL: I apologise in advance if the minister believes that she has answered this question, because I did step out for about 90 seconds and I know that the Hon. Stephen Wade did ask about members of the tribunal. My question is in relation to the working conditions of members of the new body.

As the minister might know, the two bodies that she has identified as likely first starters—the Guardianship Board and the Residential Tenancies Tribunal—have had, in my opinion, some of the worst industrial practices. The workers there, the quasi-judicial members, were not entitled to sick pay or annual leave, they had no redundancy and they could have their contracts terminated a day before they expired. Has the government given any thought to whether any security of tenure or other working conditions would apply to the people who are working at the tribunal and effectively acting in a judicial capacity? Will they least have conditions of employment similar to public servants, for example?

The Hon. G.E. GAGO: The president, as you would be aware, would be appointed for a term of five years and senior and ordinary officers for three to five years, with a right of renewal. Senior members and ordinary members of the tribunal will be appointed on conditions specified in the instrument of appointment, which is section 8 of clause 19. Those conditions of appointment will be established by the president; however, it should be noted that this administrative tribunal will sit within the Attorney-General's Department, which is a government department.

The Hon. M. PARNELL: I thank the minister for her answer. Part of the problem, as I understand it, is that many members who are brought in to do specialist work—for example, on the Residential Tenancies Tribunal—are paid sessional rates. They are basically paid an hourly rate for the hours they sit, and that is the end of it. There is no guarantee of how many hours they would get, but in practice they are part-time jobs. You have someone who works two full days a week at the Residential Tenancies Tribunal. Yet, their tenure has always been insecure. Whilst they may be appointed for a period of time, that period of time can expire and they will have no indication of whether or not they will be reappointed.

To frame my question slightly differently: will there be any professional employment oversight in relation to the terms and conditions of employment, other than the Attorney-General or the president? When I say 'professional oversight', I mean things like making sure that someone is not allowed to see their contract expire and not be given any indication of whether or not it will be renewed. Most workers get some sort of redundancy, they get some notice period, they get told they will lose their job, that they will be given a certain amount of pay in lieu of notice. Will any arrangement like that be put in place for the members of this tribunal?

The Hon. G.E. GAGO: I am advised that those matters are not a matter for the act, they are not within the act, but are operation and implementation matters, and that level of detail is under consideration now and that work is being developed. The honourable member makes a very good point and they are matters that are very worthy of considerable consideration.

The Hon. S.G. WADE: By simple way of concluding in that area, if Mr Parnell is happy, I presume, therefore, that those terms and conditions will be determined by the government and not by the president of the tribunal?

The Hon. G.E. GAGO: I have been advised that it will be the government, in consultation with the president, and it is outlined in clauses 19(8) through to (11).

The Hon. S.G. WADE: The Hon. Mark Parnell used that provocative word in the context of SACAT—'judicial'. It would be fair to say that the Bar Association, the Law Society and the Council of Australasian Tribunals all raised queries as to whether the government intended that the tribunal be a court or tribunal in terms of the chapter III considerations, and my understanding is that a number of the government amendments that were completed in the House of Assembly were to underscore the government's intention that this be a tribunal and not be a chapter III. Will the minister clarify why that was important to the government? What are the practical benefits to either the government or the tribunal by not being regarded as a chapter III court?

The Hon. G.E. GAGO: I am advised that because of the nature of the powers that were required in relation to the administrative outcomes we were seeking—for instance, around residential tenancies, guardianship, etc.—they were responsibilities better described in a tribunal than under the powers of a chapter III court. It is simply that it better describes the powers that we are looking for through making it a tribunal rather than a court.

The Hon. S.G. WADE: I appreciate this is very much a question for advisers—and perhaps advisers who are not present—but do we have any indication that any of our current tribunals are regarded as chapter III; and are we aware of any other, shall we say, SACAT equivalents—VCAT and so forth—that are regarded as chapter III?

The Hon. G.E. GAGO: Here in South Australia, are you talking about?

The Hon. S.G. WADE: Yes, firstly South Australia, but also then in relation to other jurisdictions in relation to their equivalent of the SACAT.

The Hon. G.E. GAGO: I have been advised that here in South Australia, the Workers Compensation Tribunal has been found to be a court and that there is currently a challenge in Queensland to the equivalent of our SACAT.

The Hon. S.G. WADE: I accept the minister's answer earlier that the government has not decided which tribunals will go in first, and I appreciate that therefore the list of tribunals going in has hardly been started, but have there been any decisions made as to any tribunals that definitely will not be going in with SACAT?

The Hon. G.E. GAGO: I am advised no, that we are looking at considering a wide range of possibilities.

The Hon. M. PARNELL: I want to ask the minister about access to justice because one of the important elements of access to justice is the cost of accessing justice. One of the objectives of the tribunal as set out in clause 8 under paragraph (d) is to keep costs to parties involved in proceedings before the tribunal to a minimum insofar as is just and appropriate.

If we take the two jurisdictions likely to come within this tribunal, one is residential tenancies and my understanding is that for a long time applications were free. There is now a modest charge, I think, but there are other cases where it would be completely inappropriate to have any application fee. For example, a person who is involuntarily detained under mental health legislation should not have to pay a fee in order to get an umpire to review whether or not they should be kept in Glenside or whether they should be allowed to go home.

My question is: will the matter of application costs in terms of a cost to bring a case—as opposed to legal costs, where the bill already sets out that generally parties will bear their own legal costs—simply be set out in regulations under this bill or will it be a matter for each of the originating pieces of legislation?

The Hon. G.E. GAGO: I have been advised that the application costs will be a matter for regulation in relation to this bill. I do not believe a great deal of work has been undertaken around that so your comments are noted.

Clause passed.

Clauses 2 to 9 passed.

Clause 10.

The Hon. S.G. WADE: In discussions with the government, the government indicated its interest in flexibility in terms of who could be appointed to be president of the tribunal. The bill as it currently stands envisages either a Supreme Court judge or a District Court judge could be appointed as a president of the tribunal and, for that matter, whether on a part-time or full-time basis. In the opposition's view, the District Court option is not appropriate. Any District Court judge could be appointed to the Supreme Court for the purpose of taking the role, and to us it smacks more of an opportunity to keep the cost down rather than a real issue in relation to flexibility.

It is noteworthy that similar tribunals interstate are headed by Supreme Court judges on a full-time basis and two of the key stakeholders in this area strongly advocated for a Supreme Court judge. The Law Society, for example, stated in its submission and I quote:

The President of each of the general administrative tribunals in Victoria, Queensland and Western Australia is required to be a judge of the Supreme Court. It is recommended that the Bill be amended to include a requirement the President of SACAT be a judge of the Supreme Court. Without in any way reflecting adversely upon judges of the District Court, and with due respect, it is considered necessary in order to give the Tribunal the necessary status and impetus, that a Supreme Court judge be its head. Given the functions of the President and leadership required under sections 11(2)(d) and (f) of the Bill, the question of status is crucial.

Likewise, the Council of Australasian Tribunals South Australia said:

COAT-SA's very strongly-held view is the President of the Tribunal should be a judge of the Supreme Court, appointed to hold office as President of the Tribunal on a full-time basis. The status of the President establishes the status and credibility of the Tribunal and COAT-SA notes that throughout Australia, (Queensland, Western Australia and Victoria and proposed in New South Wales) the President of the equivalent Tribunal is a judge of the Supreme Court appointed on a full-time basis.

The opposition considers that advice as sound and we are moving this amendment that the words 'or the District Court' be deleted so that the only appropriate candidate would be a Supreme Court judge. I would note as an aside that, in spite of the submissions of the stakeholders, we do not think it is appropriate to legislate that the person be full-time, particularly as, as the tribunal evolves, it may be some time before it needs to be a full-time role.

In terms of the need for the person to be a Supreme Court judge, the only exception to this would be an instance of an acting president, at which point we accept there may be a need for the deputy president or another District Court judge to step in on a temporary basis. If the council and the government are agreeable, I would suggest that this amendment could be treated as a test clause for consequential amendments, whatever that means, for Nos 2 to 4, and 6 and 8 in [Wade-1].

The Hon. G.E. GAGO: The government rises to support this amendment in the interests of expediting the passage of this bill. The amendment removes the eligibility of a District Court judge to be appointed to the role as president of the tribunal, restricting this only to a judge of the Supreme Court.

The government's reasoning in making a District Court judge eligible for appointment to the role of president was to provide maximum flexibility with respect to the pool of judicial candidates available to undertake this role. The government maintains that nothing in the bill as currently drafted precludes a Supreme Court judge being appointed. It simply provided an option to appoint a District Court judge should a current Supreme Court judge either not express an interest or be unavailable, for any reason, to take the role when expressions of interest are sought. For these reasons, we are prepared to support this amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Just a point of clarification: I do not think the Hon. Mr Wade has actually formally moved his amendment.

The Hon. S.G. WADE: I move:

Amendment No 1 [Wade–1]—

Page 8, lines 34 and 35—Delete 'or the District Court'

I thank the government for its indication of support and seek the support of other honourable members.

The Hon. M. PARNELL: I actually was not inclined to support it for one of the reasons the minister gave, but which she says is surmountable; that is, if District Court judges were included in the pool of potentially eligible candidates, there is a greater pool to choose from. But I would imagine that, if a District Court judge appeared to be the appropriate candidate, they would immediately be promoted to the Supreme Court bench and appointed to this position.

The point that I was going to make was that one of the most important qualifications that the presiding member will need to have is some experience in dealing with self-represented litigants and, in my view, District Court judges are more likely to have that experience. For example, this morning, the Hon. Dennis Hood and I were sitting in the District Court, just before the bells rang for the start of session. It was a matter that I will not go into here that may or may not have involved raw milk, but we were in the District Court and His Honour was, I think quite fairly and reasonably, dealing with an unrepresented litigant and explaining to him what was going on.

Whilst I can see Liberal and Labor have reached agreement on this, I can see that there is a way through where the pool of potential candidates could be expanded to beyond existing Supreme Court judges. I just want to put on the record that it would be my hope that, in finding an appropriate appointment, regard would be had to the experience the person had in dealing with unrepresented litigants.

The Hon. S.G. WADE: If I could respond to that, my understanding is that a person is eligible to be appointed as a Supreme Court judge if they have served seven years as a legal practitioner in the state. That being the case, anybody could be a mere mortal today and be head of the tribunal tomorrow.

On the opposition's behalf—and I think the government is of the same view—this is certainly not limiting flexibility at all. It might, if you like, mean that a District Court judge has one more piece of paper to fix before he or she is eligible for appointment, but the pool is not diminished, it is just that the appointment is at a higher level.

In our view, it is a relatively small marginal cost to the state. The strong advocacy of the stakeholders and the best practice of other jurisdictions suggest that it is an appropriate investment, and I thank the government for sharing that view.

Amendment carried.

The Hon. S.G. WADE: If the government is agreeable that [Wade-1]—

The Hon. G.E. GAGO: You want me to say that word again, don't you?

The Hon. S.G. WADE: Yes, because I get into trouble when I use it.

The Hon. G.E. GAGO: But the answer is yes.

The Hon. S.G. WADE: It is minister Hunter who tries to confound me. I am not sure what it technically means, but I used to think I knew what 'consequential' meant. Anyway, considering the house provided support to amendment 1, I would suggest to the government that the house is likely to support amendments 2 to 4, and I move them together:

Amendment No 2 [Wade–1]—

Page 9, line 1—Delete 'or the District Court'

Amendment No 3 [Wade–1]—

Page 9, lines 7 and 8—Delete 'or the District Court (as the case may be)'

Amendment No 4 [Wade–1]—

Page 9, lines 11 and 12—Delete 'or the District Court (as the case may be)'

The Hon. G.E. GAGO: I am happy to support all of those amendments.

Amendments carried.

The Hon. S.G. WADE: The minister kindly just indicated that the government will also be supporting this amendment, but I still have eight more members of the house to persuade. I think for the sake of the record this one would actually be quite easy for historians to understand, but some of our amendments are a bit obtuse and people might say, 'Well, why on earth did they do that?' I move:

Amendment No 5 [Wade–1]—

Page 9, lines 18 to 22—Delete subclause (6) and substitute:

(6) Without limiting subsection (5), the Remuneration Tribunal may determine that the President's salary or allowances as a judge will have an additional component on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act).

Both the Law Society and the Council of Australasian Tribunals propose that salaries and entitlements should be set by the Remuneration Tribunal. In their submission on the bill, the Law Society says:

In order to ensure the independence of the President from the Executive Government...The additional salary or allowance should be fixed by the Remuneration Tribunal, not the Governor.

As an aside, that is an interesting observation because we normally talk about independence from the government in relation to courts, but I appreciate there is a need for tribunals, too, to be seen to be not at the beck and call of the executive. COAT SA also shared that view. As I said in my opening remarks, I understand that this amendment has the support of the government and we believe that it is an important safeguard for the independence of the tribunal.

The Hon. G.E. GAGO: The government rises to support this amendment. The president's salary is determined by the Remuneration Tribunal because the president will be a Supreme Court judge. As presently drafted, any top-up in salary to reflect extra responsibility as president of the tribunal was to be determined by the Governor. This amendment would provide that the Remuneration Tribunal, rather than the Governor, determine any top-up salary for the Supreme Court judge appointed as president to the tribunal.

The government prefers the approach of having the tribunal members' salaries, other than the presidential members who are already judges, determined by the Governor rather than the Remuneration Tribunal, consistent with other bodies likely to be assumed into SACAT, such as the Guardianship Board and the Residential Tenancies Tribunal. However, in the interests of expediting the passage of this bill, we would be prepared to agree to the amendment, noting that several submissions, in particular from the legal profession and the Council of Australasian Tribunals, called for this.

The Hon. S.G. WADE: I thank the minister for her comments and clarify that the opposition will be moving amendments for the president and deputy president's remuneration to be determined by the Remuneration Tribunal but accepting the point the minister makes that a number of other tribunals have other arrangements. Also because of the point that the Hon. Mark Parnell raised about the sessional nature and the diversity of these tribunals, we will not be pursuing Remuneration Tribunal determinations for ordinary members.

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 6 [Wade–1]—

Page 9, line 26—Delete 'or the District Court'

I suggest to the council that it is consequential.

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 7 [Wade–1]—

Page 9, lines 27 to 29—Delete paragraph (b) and substitute:

(b) the person, with the approval of the Governor, resigns as President by written notice to the Attorney-General; or

As originally drafted, a person who was appointed as president of the tribunal, but at some point resigned subsequently, would maintain their tenure and status as a judge of either the Supreme Court or the District Court. The government amendment in the other place sought to insert an additional requirement prior to resignation of the concurrence of the Chief Justice or the Chief Judge as the case requires.

The opposition certainly appreciates the desire of the government and the wisdom of the government not to leave itself open to unplanned additional judicial officers by unexpected resignations as the president of the tribunal. However, we thought that requiring the concurrence of a particular person may, in some circumstances—rare, I am sure—lead to unreasonable lack of agreement. The opposition was reminded of the provisions the government inserted in the District Court Act, section 11(10); if you like, we are trying to manage a similar risk. In that context, the concurrence needed to be of the Governor. We think that that is an appropriate alternative.

The Hon. G.E. GAGO: The government supports this amendment.

Amendment carried.

The Hon. S.G. WADE: I would suggest to the committee that [Wade-1] 8, 9 and 10 are all consequential: [Wade-1] 8 is consequential on Wade amendment No. 1, and [Wade-1] 9 and 10 are consequential on [Wade-1] 5. If the committee is agreeable, I will move all three together as consequential.

The Hon. G.E. GAGO: Yes, consequential, and the government supports all three.

The CHAIR: I understand that. However, the amendment we are about to deal with is at clause 10 and the other two are at clause 14. We will deal with the clause 10 amendment [Wade-1] 8 first.

The Hon. S.G. WADE: I move:

Amendment No 8 [Wade-1]—

Page 9, lines 39 to 41 and page 10, line 1—Delete subclause (1) and substitute:

(1) Before the Governor makes a proclamation under this section, the Attorney-General must consult with the Chief Justice.

Amendment carried; clause as amended passed.

Clauses 11 to 13 passed.

Clause 14.

The Hon. S.G. WADE: I move:

Amendment No 9 [Wade–1]—

Page 12, lines 1 to 5—Delete subclause (6) and substitute:

(6) Without limiting subsection (5), in the case of an appointment under subsection (1)(a), the Remuneration Tribunal may determine that a Deputy President's salary or allowance as a judge will have an additional component on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act).

Amendment No 10 [Wade–1]—

Page 12, lines 18 to 20—Delete subclause (10) and substitute:

(10) Without limiting subsection (9), in the case of an appointment under subsection (1)(b), the Remuneration Tribunal will determine the salary or allowances to be paid to the person on account of holding office under this Act (and the jurisdiction to make such a determination is conferred on the Remuneration Tribunal by this Act).

Amendments carried.

The Hon. S.G. WADE: I move:

Amendment No 11 [Wade-1]—

Page 12, line 41—Delete 'agreement of the Chief Judge' and substitute 'approval of the Governor'

It is not a dissimilar issue to the previous issue in relation to the president, this being in relation to the resignation of the deputy president. I do not know whether the committee is happy for that to be regarded as consequential as well.

The Hon. G.E. GAGO: The government is and we support this amendment.

Amendment carried; clause as amended passed.

Clauses 15 to 18 passed.

Clause 19.

The Hon. G.E. GAGO: I move:

Amendment No 1 [AgriFoodFish-1]—

Page 16, lines 29 and 30—Delete 'or advertising under subsection (3)'

I am advised that this is a consequential amendment to a government amendment passed in the other place; this amendment, I am advised, was overlooked in error. The amendment applies to clause 19 of the bill. Clause 19 provides for the appointment of nonjudicial members of the tribunal. Senior and ordinary members must be legal practitioners with at least five years' experience or have extensive or special knowledge or experience involving any class of matters which can be dealt with by the tribunal.

By way of background, the government amended No. 30 in the other place, removed from clause 19 of the bill as required that in order to select a person for appointment as a senior or ordinary member of the tribunal the minister must advise for applications from appropriately qualified persons to be considered for selection. The rationale for this amendment was that the technicalities of the appointment process for senior and ordinary members did not need to be set out in legislation. Specifically this amendment seeks to remedy the error of omission in the other place to make the consequential amendment to clause 19(7) by deleting the reference to 'or advertising under subsection (3)'.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Amendment No 12 [Wade–1]—

Page 16, lines 36 to 39—Delete subclause (10) and substitute:

(10) A senior member or ordinary member of the Tribunal—

(a) must advise the President of the Tribunal of the nature of any paid employment or professional work undertaken outside his or her duties as a member of the Tribunal; and

(b) must not engage in any such employment or work if the President informs the member that, in the President's opinion, to do so would or may conflict with the proper performance of the member's duties of office.

Clause 19(10) requires that tribunal members can only perform work outside the tribunal that has been positively approved by the president. On the one hand, there is a risk of a president being unreasonable—and the beauty of not having a president at the moment is that we cannot offend him or her—and on the other hand there is a risk of a president being overwhelmed by a large number of approvals, particularly for part-time specialist members who may well undertake a range of consultancy work. As the Hon. Mark Parnell indicated, many tribunal members of established tribunals have their tribunal work as a part (and possibly a minority part) of their total work involvement.

This was another of the concerns raised with the opposition by the Council of Australasian Tribunals. In order to maintain the disclosure of the work that could lead to a conflict of interest while reducing the risk of bureaucratic restrictions being placed on tribunal members, the opposition proposes amendments to introduce Western Australian-style provisions which allow the president to veto employment but do not require prior approval.

In addition, I propose that tribunal members be allowed to disclose their external work to the president as a category of work rather than as specific instances within that field to the extent that that is consistent with probity. We think that strikes a balance between what is proposed in the bill and will ensure that outside employment is not unreasonably held up while still ensuring that genuine conflicts of interest are managed.

The Hon. G.E. GAGO: The government supports this amendment. It is the government's view that this amendment is not going to significantly change the operation of clause 19(10) in requiring notification and effectively approval for members to engage in specified outside work; however, we are willing to agree to this amendment in the interests of securing passage of the bill.

The Hon. M. PARNELL: I want to put a couple of things on the record as well. The Greens also are supporting this measure. It has just occurred to me that while I do not have any particular conflict of interest in relation to this matter, I should put on the record that my wife was deputy president of the Guardianship Board for many years and a senior member of the Residential Tenancies Tribunal for 14 years.

Members interjecting:

The Hon. M. PARNELL: No, but these were years ago! The relevance to this amendment is that I know from that personal experience that both those positions were part-time and certainly my wife had other work, including university lecturing and things like that, and it would be unreasonable for that veto power to be exercised unreasonably.

I think the way the Hon. Stephen Wade has put this, that the person notifies the nature of the work and then there is the power if there is a conflict for the president to determine that that is not appropriate—and you would hope that someone who said, 'Look, I am happy to do my two days a week doing residential tenancies work and the other three days a week I am going to be a property manager for a real estate agent' would be clearly viewed to have a conflict and that it would be inappropriate. I appreciate that it is everyone's intention to make this provision sensible, and I think the opposition's amendment improves the wording that was in the bill as presented to us originally.

Amendment carried; clause as amended passed.

Clauses 20 to 68 passed.

Clause 69.

The Hon. G.E. GAGO: I move:

Amendment No 1 [AgriFoodFish–2]—

Page 38, after line 37—Insert:

(3) This section does not apply in any circumstances prescribed by regulations made for the purposes of this subsection.

This amendment is moved as an alternative to Wade amendment No. 13, which opposes clause 69 of the bill abrogating the privilege against self-incrimination. Clause 69 of the bill abrogates the privilege against self-incrimination in that it states that a person is not excused from complying with a requirement under the SACAT Act to answer a question or produce a document or other evidence on the grounds that to do so might incriminate the person or render the person liable to a penalty. However, as a safeguard for that person, clause 69 provides that this evidence cannot be used against a person in any criminal proceedings other than for perjury or giving a false or misleading answer.

The government has relied on the precedents in equivalent generalist tribunals for including a provision abrogating the privilege against self-incrimination in tribunal proceedings, both in the WA State Administrative Tribunal and the Victorian Civil and Administrative Tribunal. Their establishment acts abrogate the privilege against self-incrimination in the same way that we are proposing in this SACAT bill.

There are arguments as to why abrogation is appropriate for disciplinary proceedings, which will form a significant part of the tribunal's work; for example, the argument that part of submitting to an occupational licensing regime includes submitting to a requirement to provide documents and answer questions about how you have been practising in that occupation and a recognition that these documents may be the only evidence on which it could ever be hoped to succeed in disciplinary action against a licensee.

In the interests of securing passage of this bill, the government is moving this alternative amendment that would allow for the abrogation to be disapplied to certain types or streams of tribunal work. This recognises that once final decisions are taken as to which existing bodies and matters are to be assumed by SACAT it may be determined, after detailed consultation, that it would not be appropriate to abrogate the privilege against self-incrimination for that type of matter. So I recommend to members this alternative to the Hon. Stephen Wade's amendment No. 13.

The Hon. S.G. WADE: I am sure the Clerk will tell me if I should be doing this another way. In speaking against the amendment I will effectively be arguing the case for my other amendment, which is to delete the clause. The government's bill, as it stands, proposes to constrain the privilege against self-incrimination within the tribunal.

In response to my amendment to protect the privilege, the government has moved this additional amendment to allow the privilege to be restored at the whim of the government by regulation. In a moment I will explain why the opposition considers it important to protect the privilege, but I humbly suggest to members that, if they want to protect the privilege, they should vote against the government amendment and for my motion to delete the clause. I propose that we delete the clause and consider what privileges are appropriate in each jurisdiction in the context of future bills that will confer jurisdiction.

The privilege against self-incrimination has been repeatedly whittled away by this government, and this council increasingly is standing against that trend. The honourable minister in her comments in support of her amendment made a couple of points to which I would like to respond. First, she mentioned that the government was relying on interstate precedents. I think it would be fair to say that this bill particularly relies on Western Australian precedents.

It was interesting that in the last amendment, the amendment in relation to how external work was to be notified to and approved by the president, the government chose not to follow the Western Australian precedent, and in that context the council accepted an opposition amendment that chose to do so. I make the point that we have chosen precedents when it suits us and not accepted precedents when it does not suit us.

We in South Australia in this parliament, and particularly in this council, have increasingly taken a stand to protect the privilege against self-incrimination. We are not alone in parliaments in that regard: a number of other parliaments in Australia have also had cause to stop and reflect on whether the trend towards abrogation in recent decades is helpful.

For our part, the Liberal opposition in this parliament explicitly considered this issue in 2011, and since then we have consistently sought to protect the privilege. We have opposed the removal of the privilege against self-incrimination in a range of bills, including the Natural Resources Management (Review) Amendment Bill 2013, the Burial and Cremation Bill 2013, the Work Health and Safety Bill 2012 and the Electrical Products (Energy Products) Amendment Bill 2011.

As members would be aware, the opposition's basic approach is that we do not support the abrogation of the privilege, unless there are strong policy grounds to do so, and we have supported the abrogation of the privilege in relation to, for example, drinking water supply. The Liberal Party has often made a point of defending the privilege against self-incrimination in this place. Unfortunately, it was only in the last sitting week that I had to argue in defence of the right again during the debate on the Legal Practitioners Bill 2012.

The government's disregard for the privilege was highlighted by the Attorney-General's public attacks on the opposition for protecting people's legal rights. The Legislative Council has acted as a bulwark protector, and we urge the council to do so again. Some people suggest (and I thank the government that it did not argue this today) that the privilege is an anachronism of a previous time. In a modern age, it is the opposition's view that it is a key protection of the accusatorial system of justice.

A fundamental principle of that system is that the prosecution bears the onus of proving to the relevant threshold that an accused is guilty of an offence with which he or she has been charged. The principle of the presumption of innocence is said to undergird the privilege. Those who allege the commission of offence should not be able to compel the accused to provide evidence of his or her own guilt. The privilege also helps to prevent against abuse of power; it helps protect the quality of evidence; and, in legal terms, it is said to help avoid the cruel trilemma.

The Liberal Party's opposition to seeing this privilege whittled back in our view is part of the need for enduring protection of the fairness of our legal system. The Law Society's submission of 19 August 2013 on this bill specifically addressed this point. It reads:

Despite its more limited heading, this clause prevents a person from relying upon either the privilege against self-incrimination or the privilege against self exposure to penalties.

I pause to say that the Law Society, of course, was referring to an earlier draft. I assure members that this is the clause to which it is referring. It continues:

Clause 72(2) prevents answers given, etc, from being relied upon in most criminal proceedings against the person. There is no equivalent in relation to other proceedings in which a person might be exposed to a penalty, or in which civil liability might flow from an answer, etc, in relation to which the privilege against self-incrimination or the privilege against self-exposure to penalties might, but for cl 72(1), have been claimed.

We question whether it is really appropriate that the Tribunal's powers extend to requiring persons to answer questions in such a way as to override long-established common law rights, such as the right against self-incrimination and the right against self-exposure to penalties. Those are compulsory powers that are not generally available even to the Supreme Court or other courts of law. Such powers are often conferred on investigative or intelligence bodies, but those bodies serve a purpose that is quite different from resolving disputes in the manner of a court or the Tribunal.

However, whereas in past bills members had a clear idea of the circumstances where the privilege was being removed, in this bill we do not even have the public policy grounds on which we can, if you like, determine the balance. We have a framework bill that we are taking on, and we are not even faced with the balancing of policy priorities.

The minister did use the example of disciplinary tribunals as a case where the government may want to argue that the privilege against self-incrimination be wound back, but I would remind members that the first two tribunals the government is considering—the Residential Tenancies Tribunal and the Guardianship Board—are not disciplinary tribunals.

I suppose, to put it simply, if we want to take a carte blanche blank cheque approach, let's take a carte blanche, blank cheque approach to maintaining well-established legal principles of our English common law system. If there is a case to wind that back on a case-by-case basis, let's hear the argument then.

I would remind the council that we are being asked to take away a fundamental right not in urgent circumstances to protect public safety but for disputes where individuals are seeking an affordable avenue to exercise their rights. As I said, this bill is an enabling statute and we do not know which tribunals will in fact be wound into the SACAT. We have not been told which tribunals it will be applied to. We will need to look at each case.

Could I take a moment to reflect on the practical implications of the government's proposed approach to this. They are saying that the default position should be abrogation but that a regulation could be issued which, if you like, reinstates the privilege. It goes without saying to members of this house that regulations are issued by the executive. The parliament can disallow them, but if we want to reassert the privilege against self-incrimination in a particular tribunal and the government chooses not to issue a regulation, we are stymied. There is not a way that we can control the regulation under the clause that has been put in.

Of course, the government could respond to that by saying, 'Well, you could try and amend the enabling act,' but, again, it is a government veto because, even if this house does change it, the government has to agree to the amendment in the other place. I would suggest to the council that, rather than the government's starting point of abrogation, we should use the starting point of the maintenance of the privilege.

Whether or not the privilege needs to be abrogated should be done on a case-by-case basis and not with a government veto where the default position is that the privilege will be abrogated. I reiterate that I would encourage those members who are seeking to maintain the privilege to vote against this amendment put forward by the government and consider favourably my amendment to delete the clause.

The Hon. M. PARNELL: The line proposed by the Hon. Stephen Wade—that is, to reject the government amendment, which he refers to as the government veto and to support his amendment, which is to completely delete clause 69—does have a deal of merit. Just to remind members, the privilege against self-incrimination needs to be cross-referenced with the obligation in clause 40 for people to answer questions. Basically, clause 40 provides that if you do not answer the questions you can be guilty of an offence and incur a $25,000 fine or go to gaol for one year unless you have a reasonable excuse.

A reasonable excuse, under the common law, is, 'Well, I don't have to incriminate myself,' so if we take out clause 69 that reasonable excuse remains. I also accept what the minister has said, which is that there may well be some categories of work that this tribunal does where it is important to abrogate that privilege. Whilst that may have merit in disciplinary proceedings—someone's entitlement to a trade accreditation, for example—it is pretty hard to see how it would apply in relation to questions about a person's behaviour that suggests whether or not they deserve to stay in a mental institution or whether they should be allowed to go home.

Another set of situations would be questions about a landlord's practice in issuing receipts and whether they self-incriminate themselves by saying, 'Well, I never did give receipts even though I was obliged to.' There is a range of situations you can consider where the answer would be different from the question, should the principle that you do not have to incriminate yourself apply. It seems to me that all is not lost if we pursue the line that the Hon. Stephen Wade suggests, because every single act of parliament that is going to confer jurisdiction on this tribunal will have evidentiary principles in it which will be read in conjunction with this bill once it is passed.

When we come to look at the transfer of responsibility from the Residential Tenancies Tribunal to this tribunal, we can reconsider self-incrimination. When the mental health legislation comes across, we can consider it again, and the same with licensing, trade accreditation and disciplinary matters. It seems to me that it is more appropriate, rather than having a carte blanche approach, to look at each jurisdictional area that is in the domain of this new tribunal and decide what particular rules should apply to that sub-part of the jurisdiction. The Greens will be doing what the Hon. Stephen Wade suggests, that is, voting against this government amendment, and we will be supporting the opposition amendment to delete clause 69 in its entirety.

The Hon. D.G.E. HOOD: I have always taken the view, and it may be somewhat simplistic but I think there is merit in it, that if somebody does not do anything wrong they have nothing to hide and, therefore, they should be able to answer questions put to them about their behaviour, their conduct, whatever it may be. However, I think in this particular case, there is merit for this situation to apply in the individual jurisdictions rather than as a sweeping reform across all the jurisdictions and that is my understanding of what the Hon. Mr Wade's amendment does.

I think it likely, should we look at it on an individual basis across those jurisdictions, that Family First would support removing the right to silence, etc., in certain circumstances—perhaps in each and every one of them—but, as the Hon. Mr Parnell said, it does make more sense to us at least to do that at the individual level rather than across the board. For that reason, we will be supporting the Hon. Mr Wade's amendment.

The committee divided on the amendment:

Majority of 7 for the noes.

Amendment thus negatived; clause negatived.

Clause 70.

The Hon. S.G. WADE: I move:

Amendment No 14 [Wade–1]—

Page 39, line 2—Delete 'Unless it would be contrary to section 69, a' and substitute 'A'

I suggest this is consequential to amendment No. 13 [Wade-1].

The Hon. G.E. GAGO: The government considers this to be consequential. Because it is a drafting issue, we now have to support it, even though we oppose it in principle.

Amendment carried; clause as amended passed.

Clause 71.

The Hon. G.E. GAGO: I move:

Amendment No 2 [AgriFoodFish–1]—

Page 40, lines 1 to 4—Delete subclause (8)

I believe that this is consequential on amendment to clause 71 of the bill.

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 72 to 77 passed.

Clause 78.

The CHAIR: The Hon. Mr Wade, we are going to need a bit of clarification on this.

The Hon. S.G. WADE: I am happy to give that, Mr Chairman. I indicate that I will not be moving amendment No. 15 [Wade-1], and I now move:

Amendment No 1 [Wade–2]—

Page 43, line 4—Delete 'made available to act as members of the staff of the Tribunal' and substitute:

selected by the Registrar with the concurrence of the Chief Executive of the Department

In speaking to the amendment, I would like to thank the government for working with the opposition to understand what we were trying to achieve. Certainly, we appreciate that the new amendment is a simpler and clearer reflection of our original intent. The bill, as this council received it, said that staff will be made available to the tribunal. While I agree that the staff of the tribunal should be public servants within the department, I think it is important to ensure that the tribunal can select staff.

Members will remember that this is an issue that we discussed in the context of the ICAC. It is one thing for the ICAC to inherit staff from all over the place, but it is important that they be subject to the direction of the ICAC and so forth. The bill defines department as:

...the administrative unit of the Public Service that is, under the Minister, responsible for the administration of this Act;

At present I understand that is the Attorney-General's Department. Just as we thought it was important to protect the independence of the tribunal by having salaries set by the Remuneration Tribunal, it is the opposition's view that the tribunal's independence would also be strengthened by the staff being selected by the registrar staff. However, we also recognise that it would be unreasonable to allow the tribunal to appoint staff at the expense of the department without their agreement, so the amendment I have moved requires the concurrence of the chief executive of the department for any staffing selections made.

As I said at the beginning of my remarks, I thank the government for working through the issues with us, and I hope that in its final form it meets with the approval of the government and other members of this council.

The Hon. G.E. GAGO: The government rises to support this amendment; as the Hon. Stephen Wade has outlined, it as an alternative to his amendment No. 15 from his first set. We indicated opposition to that, and we appreciate the Hon. Stephen Wade's efforts to remedy the issues with this amendment, and we are pleased to support it.

Amendment carried; clause as amended passed.

The Hon. S.G. WADE: There are no further amendments, and this may be more of a third reading comment, but—

The CHAIR: Well, why don't we do that at the third reading?

The Hon. S.G. WADE: I just thought I would put on the record on behalf of the opposition that, through processing this bill, it was clear that it was a quality bill. It received very strong support from the stakeholders, in spite of the fact that they suggested tweaks, so I commend the officers who have been involved in the project, obviously for some years. I also thank the government for working through with the opposition issues that both we and stakeholders had raised and hope that the house might think favourably on our amendment.

Remaining clauses (79 to 97) and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:40): I move:

That this bill be now read a third time.

Bill read a third time and passed.