Legislative Council: Thursday, February 09, 2023


Statutes Amendment (Civil Enforcement) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 September 2022.)

The Hon. C. BONAROS (16:35): I rise to speak on the Statutes Amendment (Civil Enforcement) Bill 2022 on behalf of SA-Best. This is one of those bills that lapsed under the former government, stemming from the 2018 self-initiated review by the courts. While we support the provisions of the bill—most of them—there are some minor issues which I think are worth highlighting in more detail during the second reading and potentially the committee stage debate, depending on the answers that we get.

As we know, the bill arises from the recommendations of a review undertaken by the Courts Administration Authority and I understand that these amendments are strongly supported by the Chief Justice. It is clearly focused on trying to improve the enforcement of civil judgements delivered by the courts in keeping more matters from entering litigation.

As such, it increases powers to pursue debtors and administrative efficiencies to expedite that pursuit. Several provisions are, arguably, beneficial to debtors, including the new provision for the judgement creditor to serve an investigation notice on the debtor prior to issuing an investigation summons. We welcome the introduction of the interim notice, which will act to save court time and reduce costs. I think it is a useful new step in the process and one that has apparently been of some success in New South Wales.

The expansion of the scope of garnishee orders to include salaries and wages without consent is, unquestionably, a significant new power. South Australia is, as I understand it, the last jurisdiction in Australia where consent is still required. Being able to dip into someone's salary or wages without their consent is in anyone's language a considerable extension of the court's powers. Of course, issues have been raised around what protections the debtors have and they must be, on balance, front and centre.

The Attorney-General's Department has provided assurance the court will still have regard to ensuring the debtor is able to meet the amount of garnishee orders made and that the courts are still required to assess their living costs and the affordability of that order. An aspect that I suppose has been less clear on reading the bill is the consequences of a garnishee order concerning term deposits that have not yet matured.

I think, while we appreciate the intention of the provision is to prevent debtors from putting funds and assets beyond the reach of a garnishee order, there are questions that have arisen—for example, cost penalties associated with early term deposit releases and the like and whether they will form part of the court's consideration about those financial circumstances.

Similarly, with changes to mandate that banks disclose information of the debtor's financial situation, there are obviously questions around issues of privacy of non-debtors in circumstances where there is joint ownership of assets, potentially putting the non-debtor party at risk of having their financial information or other private information disclosed without their consent. It is my understanding—and one of the issues that the banks have raised is that they have been reluctant and reticent to give such information for obvious reasons—that such an amendment ought to provide banks with the protections they seek and enable more streamlined processes.

That said, as the non-debtor party is not the subject of the court order, the issue has still been raised that there could be an unfair burden placed on them. One of the questions to the Attorney is to ensure that there are those privacy checks and balances in place with this provision to ensure the appropriate levels of protection for non-debtor parties.

I think this was one of the issues that we raised at the briefing we had and I am suspecting the Attorney will say that the banks are subject to privacy laws and that obviously they will continue to apply, but these considerations have been taken into account with these amendments. To this end, I think the impacts of this bill, just in terms of the issue with the bank, is something that will be monitored further.

I note that the Law Society has raised some concerns covering some concepts, and I have alluded to some of those and others, but these have, I think, in large been addressed by amendments that have been filed by the Hon. Rob Simms. Subsequently, the government has, I note, also filed amendments to deal with some potentially unintended consequences of those initial amendments, but that seems to have worked out very well. So in the spirit of collaboration, I think we have landed where we needed to land.

I indicate for the record we will be supporting the amendments moved by the Hon. Rob Simms and the amendments moved by the government to address those issues. I would simply ask the Attorney for some clarity around the issues I have just quickly outlined in relation to the bank disclosure and non-party debtor's privacy rights and, lastly, some indication from the Attorney about what the courts have done to date to prepare for the implementation of the bill. With those words, we support the second reading.

The Hon. J.M.A. LENSINK (16:40): I rise to make some remarks in relation to this legislation, at risk of being repetitive in covering similar territory to my learned colleague the Hon. Connie Bonaros. Indeed, this bill is reinstating one which lapsed with some minor amendments. It was originally moved in this place on 6 May 2021, passed on 22 June 2021 and was introduced in the House of Assembly on 23 June 2021 by the then Attorney-General, the Hon. Vickie Chapman.

The bill amends the Enforcement of Judgements Act 1991 and the Sheriff's Act 1978 to implement recommendations of a 2017 review undertaken by the Courts Administration Authority into civil enforcement processes in South Australia. The CAA's review proposed ways to modernise and streamline civil enforcement procedures in South Australia in line with other jurisdictions.

I do not intend to go into explanation of clauses; that has been done many times through the journey of this piece of legislation. I simply say that a judgement creditor will serve an investigation notice on a judgement debtor as an alternative to an investigation summons under section 4 of the act. That provision is a replica of what was in the bill that was first proposed in 2021.

Clause 4 of the bill amends section 6 of the Enforcement of Judgements Act, expanding the scope of garnishee orders as a means of enforcing judgement debts. These changes mirror the 2021 bill; however, they add protection mechanisms which include introducing the definition 'designated amount', meaning the debtor must be left with an amount that is at least 90 per cent of the national minimum weekly wage.

The justification of this addition is to provide protection for low income earners, considered to be vulnerable members of society. Further there are some amendments to provide for a garnishee order to be attached to a term deposit, with that payment to be made at maturation. With those remarks, I indicate support for the bill.

The Hon. R.A. SIMMS (16:43): I rise briefly to speak on the Statutes Amendment (Civil Enforcement) Bill. This is a new version of a bill that, as the Hon. Ms Lensink has pointed out, was first brought before us in 2021. Some honourable members may recall back then that the Greens were supportive of the bill, and we also supported a proposal from the then Labor opposition to make some changes to the bill. The bill before us today aims to address a concern the Hon. Kyam Maher, I believe, had at that time, which was regarding the implications of this reform for people on low incomes and looking at how garnishee orders could result in them not being able to meet their financial needs.

The new clause, which aims to protect low income workers, could have some adverse effects for those who have inconsistent incomes. The Greens are concerned that there may be people who work as a casual employee or work seasonally who could be impacted. Indeed, as the Hon. Connie Bonaros pointed out, a submission from the Law Society raised these concerns about the implementation of the clause, given that a seasonal or periodic worker may earn significantly more than the national minimum wage in a short period of time and then may earn nothing for the remainder of the year.

In such circumstances, when averaged over a year, it is possible that a garnishee could earn less than 90 per cent of the minimum wage but then still be required to pay in those weeks where they earned a greater amount. I recognise, of course, that was not the government's intent, but that could have been an effect.

We have worked with the government to improve the bill and to ensure that it is fairer for people who live on inconsistent incomes. I understand the government will be advancing an amendment to address that concern that has been raised by the Greens and others and we are certainly supportive of that.

The other issue the Greens had some concerns about was the protection of personal information supplied under investigation notices. In the last year, we have seen multiple examples of data breaches that have resulted in personal information being compromised and we know that that has significant implications for our community. Most recently, there has been the Medibank saga, the Optus saga and others.

The Law Society raised concerns about personal information being obtained under an investigation notice and the need for this to be protected from uses other than that for which it was intended. We will therefore be moving an amendment to ensure that these protections are in place. The Greens will be supporting the bill with the amendments that I have outlined.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:46): I wish to thank members for their contributions on this bill and in particular thank the Greens for their constructive dialogue and the bringing forward of amendments. With some discussion, I think we have landed on a place that I think makes this bill a better bill as a result of a combination of Green and government amendments.

I thank the Hon. Connie Bonaros for her questions. If I need to add any more at clause 1 I will, but I understand that the things the Hon. Connie Bonaros has outlined, such as the privacy restrictions that banks are already subject to, go a long way in the protections the Hon. Connie Bonaros is advocating for on behalf of members of the public. Of course, I thank the Hon. Michelle Lensink for her contribution on behalf of the Liberal opposition and I welcome the upcoming committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 2, after line 22 [clause 3, inserted section 3A]—Insert:

(4) If information or a document is provided to a person in accordance with an investigation notice under this section, a person who uses the information or document for a purpose other than assessing a judgment debtor's means of satisfying a judgment is guilty of an offence.

Maximum penalty: $5,000.

This amendment seeks to give effect to the intention that I outlined in my second reading speech, that is, to ensure that people's personal information is protected. The amendment would ensure that, if information or a document is provided to a person in accordance with an investigation notice under the section, a person who uses this information or document for a purpose other than assessing a judgement debtor's means of satisfying a judgement is guilty of an offence and the amendment would apply a penalty of $5,000 for such an offence.

We believe this is an important safeguard in terms of the protection of personal information and we believe the community would expect a provision like this to be put in place in legislation such as this given the significant breaches we have seen of personal information over the last few months.

The Hon. K.J. MAHER: I rise to indicate that the government will be supporting this amendment for the reasons outlined by the Hon. Robert Simms.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. R.A. SIMMS: I indicate I will not be proceeding with amendment No. 2 [Simms-1] or amendment No. 3 [Simms-1] given the government will be moving amendments that address those concerns.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 3, line 8 [clause 4(2), inserted subsection (2)]—After 'subsection (2a)' insert:

and (2ab)

Amendment No 2 [AG–1]—

Page 3, after line 15 [clause 4(2)]—Insert:

(2ab) In particular, if the court is satisfied that the amount earned by a judgment debtor in salary or wages varies significantly from period to period during a year (for example, due to the casual nature of their employment), the court must take that matter into account in order to ensure that the amounts under 1 or more orders made in accordance with subsection (2) do not, in total, reduce the net weekly amount of any wage or salary received by the judgment debtor from the garnishee to less than the designated amount during the period to which the order or orders relate.

These amendments together are an alternative set of amendments to address concerns about the judgement debtor having a fluctuating income, which is the same as the topic of the amendments that were proposed but not moved by the Hon. Robert Simms. It appears from advice received that the Hon. Robert Simms' amendments may have had an unintended impact in the circumstances where a judgement debtor's previous income for the year from casual employment had been high but the future income would be low.

In those circumstances, it appears the annualised net weekly amount could then be higher than the designated safety net amount in the bill due to the earlier higher income. The court can make a garnishee order under those provisions as amended; however, if the income earned by the debtor in the weeks after the making of the order is less than the safety net amount, the judgement debtor would be disadvantaged, particularly if there had been no savings from the earlier higher income period.

The amendments being suggested would insert an express provision to require the court to take into account a judgement debtor's fluctuating income but not with an annualised approach that could inadvertently leave the debtor being disadvantaged. Rather, the amendments require the court to take into account the fluctuating nature of the debtor's income and ensure that any garnishee orders do not reduce the net weekly amount of any wage or salary received by the judgement debtor from the garnishee to less than the designated safety amount respectively during the period to which the order or orders relate.

The Hon. R.A. SIMMS: I rise to indicate the Greens will be supporting both of the government's amendments. I just want to take the opportunity to put on record my thanks to the Attorney and his office for the collaborative way in which they have engaged with the Greens on this amendment. Might I say I think it does demonstrate what this council does really effectively, and that is when we have different parties working together to achieve outcomes in the best interests of the community. I certainly thank the Attorney for his efforts in that regard.

Amendments carried; clause as amended passed.

Remaining clauses (5 and 6) and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.