Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:09): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

The Statutes Amendment (SACAT Federal Diversity Jurisdiction) Bill 2018 will address the recent High Court decision in Burns v Corbett, which has the consequence of preventing the South Australian Civil and Administrative Tribunal from exercising its jurisdiction in residential tenancy matters, and also potentially other matters within its jurisdiction, where the matter involves the exercise of judicial powers and involves residents of different states.

The Bill will ensure that if SACAT is unable to exercise its jurisdiction because of Burns v Corbett, the Magistrates Court will be able to exercise the jurisdiction to resolve the dispute, with the same powers and fees as SACAT.

Burns v Corbett involved a NSW dispute arising from equal opportunity legislation before the New South Wales Civil and Administrative Tribunal, or NCAT.

The High Court held that NCAT did not have jurisdiction to deal with the dispute because it involved the exercise of judicial powers as distinct from administrative powers, in a dispute between residents of different states. The Court held that, under the Australian Constitution and the Commonwealth Judiciary Act 1903, only a court referred to in Chapter III of the Constitution could deal with such a dispute, that is, a dispute involving federal diversity jurisdiction.

In a judgment handed down recently by the President of SACAT, the Honourable Justice Hughes, in the matter of Raschke v Firinauskas, it was held that disputes under the Residential Tenancies Act 1995 are matters involving the exercise of federal judicial power and therefore fall within the types of matters that may only be heard by a court in circumstances where one of the parties is resident interstate.

The immediate problem arising from these judgments is that there is no other body with jurisdiction to deal with tenancy disputes under the Residential Tenancies Act 1995, which contains provisions to deal expediently with tenancy disputes, including for example to make vacant possession orders and use the SACAT bailiff to enforce them.

While the Government is presently considering appealing the SACAT judgment, the outcome of any appeal is unlikely to be known for some months.

In the meantime, SACAT advises that the Burns v Corbett decision could affect up to 700 to 800 matters per year, with landlords in affected cases unable to collect rent or evict tenants under the Residential Tenancies Act.

To urgently address this gap, the Government has prepared this Bill, which will amend the South Australian Civil and Administrative Tribunal Act 2013 and the Magistrates Court Act 1991 to ensure that the Magistrates Court is able to exercise jurisdiction in any matter in which SACAT may be unable to because the matter involves an exercise of federal diversity jurisdiction.

These amendments would operate so that the Magistrates Court is able to exercise all the powers and functions of SACAT in dealing with such matters, with SACAT transferring the matter to the Magistrates Court with no separate application or fee required to the Court. The amendments will be implemented so as to streamline to the greatest extent possible the handling of affected matters so that the impact on parties is minimised.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal. It is intended that this measure will come into operation on the day it is assented to by the Governor.

Part 2—Amendment of Magistrates Court Act 1991

3—Amendment of section 3—Interpretation

This clause includes proceedings that are transferred to the Magistrates Court under proposed Part 3A of the SACAT Act, inserted by clause 7 of this measure, as a minor statutory proceeding. This clause also removes the ability of a party to elect to exclude the transferred proceedings from the rules that govern minor civil actions for claims exceeding $12,000.

4—Amendment of section 38—Minor civil actions

This clause allows for a party to have legal representation on a review to the District Court under section 38 if the party had legal representation in the proceedings transferred to the Magistrates Court under proposed Part 3A of the SACAT Act.

5—Amendment of section 41—Reservation of questions of law

This clause provides that, in relation to proceedings transferred to the Magistrates Court under proposed Part 3A of the SACAT Act, the Court may reserve a question of law for determination by the Supreme Court. This is similar to the ability of the Tribunal under section 72 of the SACAT Act.

Part 3—Amendment of South Australian Civil and Administrative Tribunal Act 2013

6—Amendment of section 4—Relevant Acts prevail

This makes a consequential amendment to make clear that it is subject to the operation of proposed Part 3A to take account of the Constitutional issues arising from the exercise of judicial power by a State Tribunal.

7—Insertion of Part 3A

This clause inserts proposed Part 3A

Part 3A—Diversity proceedings

38A—Interpretation

This clause sets out the definitions relevant to the Part and in particular the meaning of federal diversity jurisdiction which refers to the jurisdiction contemplated by section 75(iii) or (iv) of the Commonwealth Constitution, whereby the High Court has jurisdiction over matters in which the Commonwealth is a party, or over matters arising between States, residents of different States or between States and residents of another State.

38B—Transfer of applications involving federal diversity jurisdiction to Magistrates Court

This clause provides that if a person would, but for issues relating to federal diversity jurisdiction, have the ability to seek a review or apply for a matter to be determined by SACAT, that matter may be determined by the Magistrates Court instead.

If the Tribunal considers that is does not, or may not, have jurisdiction to determine an application on federal diversity jurisdiction grounds, then the Tribunal may order that the proceedings be transferred to the Magistrates Court for determination. These proceedings are referred to as transferred proceedings. The clause sets out various procedural matters and provides that the applicable application fee is the fee under the SACAT legislation and no further fee is payable in relation to the transfer of the proceedings to the Magistrates Court. There is no review or appeal under the SACAT Act in relation to the Tribunal's decision to transfer the proceedings.

However, the Magistrates Court has the power to remit a matter to SACAT if it is satisfied SACAT has jurisdiction.

38C—Magistrate Court proceedings, jurisdiction, powers and functions etc

This clause provides that a matter that is transferred to the Magistrates Court will be taken to have commenced on the day on which the original application was made to SACAT.

In relation to the transferred proceedings, the Magistrates Court has and may exercise all the jurisdiction, powers and functions in relation to the proceedings that SACAT would have had if it could exercise federal diversity jurisdiction.

Furthermore, the practices and procedures that apply to the Tribunal will apply to the Magistrates Court in relation to the transferred proceedings unless the Court determines otherwise.

38D—Modifications of certain functions, powers and procedures etc

This clause makes provision in relation to the conduct of transferred proceedings in relation the constitution of the Magistrates Court, legal representation, reviews of and appeals against decisions of the Court and costs.

The clause also provides that the Magistrates Court may make orders giving effect to any settlement reached by the parties before the proceedings were transferred to the Magistrates Court. The regulations may set out further modifications that may be required to facilitate the operation of this Part.

38E—Compulsory conferences

This clause provides that the Magistrates Court may require that the parties attend a compulsory conference under the SACAT Act.

38F—References to Tribunal in other Acts or regulations

This clause makes clear that a reference to SACAT in other legislation that confers or imposes a function on the Tribunal is to be read as including a reference to the Magistrates Court, if the function is conferred or imposed on the Court due to the operation of this Part.

38G—Bailiffs

This clause makes clear that Bailiffs appointed under the SACAT Act can enforce orders of the Magistrates Court made because of the operation of this Part.

38H—Relationship of this Part to this Act and other laws

This clause provides that the provisions of the proposed new Part prevail, to the extent of any inconsistency, over other provisions of the SACAT Act or any other Act.

38I—Enforcement, variation or revocation of purported orders

This clause provides for the enforcement of purported orders of the Tribunal whether made before or after the commencement of proposed Part 3A that are invalid because determination of the application that gave rise to the order involved the exercise of federal diversity jurisdiction. It also provides for the variation or revocation of such purported orders by the Magistrates Court as 'transferred proceedings'. It also provides for immunity in relation to actions or purported actions taken pursuant to, or in relation to the enforcement of, a purported order in good faith.

Debate adjourned on motion of Hon. I.K. Hunter.