South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:27): Obtained leave and introduced a bill for an act to amend the South Australian Civil and Administrative Tribunal Act 2013 and to make related amendments to the Housing Improvement Act 2016, the Residential Parks Act 2007, the Residential Tenancies Act 1995 and the Retirement Villages Act 2016. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:28): I move:

That this bill be now read a second time.

I am pleased to introduce the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024. This bill makes two substantive changes to the South Australian Civil and Administrative Tribunal Act 2013. Firstly, the bill amends part 3A of the act, which currently provides for the South Australian Civil and Administrative Tribunal (SACAT) to transfer matters to the Magistrates Court, where SACAT is barred from dealing with that federal matter under the Australian Constitution. Such federal matters are currently only limited to matters relating to the federal diversity jurisdiction, and so this bill would broaden the scope of part 3A to encompass all federal matters.

Secondly, the bill will address concerns raised by SACAT that the strict definition of 'legally qualified member', for the purposes of determining which SACAT members are allowed to make certain types of decisions or orders in SACAT, unduly restricts the pool of members able to hear any particular matter, with resulting inefficiency for SACAT and all parties involved.

I now speak to the first change proposed by the bill. The constitutional implication recognised in the High Court in the case of Burns v Corbett [2018] HCA 15 prevents a state tribunal that is not a court of a state exercising judicial power with respect to any matter of the kind described in sections 75 and 76 of the Australian constitution. The Burns v Corbett limitation will only apply when a state tribunal is exercising a judicial power.

Although tribunals are more commonly considered to undertake administrative decision-making—classically, reviews of administrative decisions of government—most civil and administrative tribunals in Australia, including SACAT, exercise a mix of both administrative and judicial powers. A classic example of SACAT exercising a judicial power is SACAT's residential tenancies jurisdiction to resolve legal disputes between lessors and lessees under residential tenancy agreements.

Burns v Corbett involved a dispute between residents of different states, which is the federal diversity jurisdiction under section 75(iv) of the constitution. The High Court held that state tribunals that are not state courts cannot exercise judicial power with respect to any of the classes of matters listed in sections 75 and 76 of the constitution. The consequent inability of SACAT to deal with residential tenancies disputes where one of the parties resides interstate proved to be an impediment, as it transpired that SACAT deals with many residential tenancies disputes involving interstate lessors particularly.

That problem led to the SACAT Act being amended in 2018 to insert a new part 3A for diversity proceedings. Under part 3A, if SACAT considers that it may lack jurisdiction to deal with a particular application made to SACAT because it involves federal diversity jurisdiction, it can transfer the matter to the Magistrates Court, which is correspondingly empowered to deal with the matter in the same way, including informally, and with the same powers as SACAT would have dealt with the matter. In practice, these matters are dealt with seamlessly on SACAT premises by a SACAT member who is also a magistrate or a judicial registrar sitting as the Magistrates Court.

The present issue arises because, in reacting to the Burns v Corbett decision, the scope of part 3A was limited to the types of matters that may fall under subsection 75(iii) where the commonwealth is a party, or subsection 75(iv) for residents of different states, of the constitution. At the time, these were the only situations in which it was considered that the Burns v Corbett limitation would arise in practice in SACAT.

Since part 3A was inserted into the SACAT Act, SACAT's jurisdiction has been expanded to include a broader range of matters. It also appears that several other jurisdictions have amended their equivalent civil and administrative tribunal legislation to provide for transfer to a court, by the equivalent tribunal, of federal matters generally; that is, any matter of a kind described in sections 75 and 76 of the constitution. Out of an abundance of caution, the bill will amend part 3A consistent with those interstate interpretations.

I now move to the second substantive change to the act that the bill makes. Depending on the nature of a matter, SACAT is constituted by a single member or a panel of members from the following member types under section 9 of the SACAT Act:

the president;

a deputy president;

magistrates who are designated as members of the tribunal;

senior and ordinary members of the tribunal; and

assessors.

The senior and ordinary members are appointed on the basis of experience as a practising legal practitioner or on the basis of relevant expertise to SACAT decision-making, with section 19(3) of the SACAT Act setting out these respective limbs of eligibility for appointment to SACAT.

Members appointed under the non-legal practitioner eligibility limb include people with law subject matter expertise who are not admitted to practice and/or do not have five years' past legal experience in practice, as well as non-legal subject matter experts with experience and qualifications in areas including social work, accountancy, economics, child development and medicine. These non-legal members currently preside over some SACAT matters and write decisions; for example, a SACAT member with qualifications and expertise in social work is often nominated to sit on SACAT's guardianship and administration and mental health lists.

The SACAT Act, as well as various acts that confer jurisdiction and functions on SACAT, reserves certain types of SACAT decisions and orders only to a legally qualified member of SACAT. The types of orders and decisions that may only be made by a legally qualified member include:

an order under section 73 of the SACAT Act staying the operation of a decision until proceedings are finally decided;

the power to require reports, including reports as to mental capacity, under section 69 of the Guardianship and Administration Act 1993; and

the power to make an order in the nature of an injunction under section 35 of the Residential Tenancies Act 1995.

The SACAT Act in turn defines a 'legally qualified member' for that purpose as a presidential member, or a magistrate member, or another member of the tribunal who is 'a legal practitioner of at least five years' standing'. The reason for reserving these particular orders and decisions to a legally qualified member is that they are orders of a court-like nature, including requiring an understanding of legal rights and proficiency in principles of procedural fairness that are expected to be gained from a law degree, plus experience in the practice of the profession of law.

In practice, SACAT has multiple members who are legally qualified in the sense of having a law degree plus extensive relevant experience—for example, as a legal academic or as a member of another tribunal. These members have been appointed under the 'extensive knowledge, expertise or experience' limb of the eligibility criteria for appointment as a SACAT member due to not having five years' legal practice experience.

SACAT is forced to list certain matters before a 'legally qualified member', as strictly defined, if it is thought that there is any prospect of any of the types of those reserved orders needing to be made. This can lead to delays with matters due to a narrower pool of members being eligible to deal with hearings, including urgent hearings as are often required under the Guardianship and Administration Act 1993.

The objectives of SACAT in providing efficient and low-cost dispute resolution support a tailored approach to determining which members are considered legally qualified for the purposes of restricting the exercise of certain SACAT powers. Under section 23 of the SACAT Act, the President of SACAT determines which member or members are to constitute SACAT for a particular matter or matters, subject to the SACAT Act or another act providing otherwise.

The SACAT president would need to be satisfied that a member has the requisite independence to hear matters of the relevant type, and the legal skills to deal with matters of the relevant complexity. In addition, SACAT advises that only members with significant legal experience and the necessary skills (including SACAT's senior members) are assigned to hear matters that are considered to be complex.

A Supreme or District Court judge, as the SACAT president is required to be, should be relied upon to constitute SACAT appropriately for various types of matters from the pool of members appointed under the eligibility criteria set out in the SACAT Act, including to guard against increased applications for internal review or appeal of SACAT decisions.

Accordingly, the bill would broaden the definition of 'legally qualified member' for the purposes of the SACAT Act to include SACAT members with appropriate legal qualifications and law-related experience, but without five years practice as a legal practitioner, who are designated by the SACAT president as a legally qualified member for the purpose of those reserved decisions and orders.

I am pleased to introduce this bill to make such technical changes to the act to ensure that SACAT can continue to provide efficient, high-quality and low-cost dispute resolution for many South Australians. I commend the bill to members, and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of South Australian Civil and Administrative Tribunal Act 2013

3—Amendment of section 3—Interpretation

This clause amends the definition of legally qualified member to include members of the Tribunal who hold a qualification in law from an Australian tertiary institution, or who hold a qualification in law from a tertiary institution in a foreign country and are duly admitted and enrolled as a barrister and solicitor of the Supreme Court, if they have 5 years or more relevant experience in a law-related field and are designated as a legally qualified member by the President of the Tribunal.

4—Substitution of section 28

This clause substitutes section 28 as follows:

28—Validity of acts of Tribunal

The proposed section updates current section 28 of the Act to provide that acts or proceedings of the Tribunal are not invalidated by reason of a vacancy or defect in an appointment or by reason of an absence of or defect in a designation of a member of the Tribunal as a legally qualified member.

5—Amendment of heading to Part 3A

This clauses amends the heading to Part 3A to reflect the broadened scope of the Part.

6—Amendment of section 38A—Interpretation

This clause deletes the definition of federal diversity jurisdiction and inserts a definition of federal jurisdiction, meaning the jurisdiction contemplated by section 75 or 76 of the Commonwealth Constitution. These amendments broaden the scope of Part 3A by expanding the class of matters which are able to be transferred by the Tribunal to the Magistrates Court for determination under the Part.

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

8—Amendment of section 38C—Magistrates Court proceedings, jurisdiction, powers and functions etc

9—Amendment of section 38I—Enforcement, variation or revocation of purported orders

These amendments change references to 'federal diversity jurisdiction' to 'federal jurisdiction'.

Schedule 1—Related amendments

Part 1—Amendment of Housing Improvement Act 2016

1—Amendment of section 40—Special powers to make orders

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 2—Amendment of Residential Parks Act 2007

2—Amendment of section 117—Special powers to make orders

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 3—Amendment of Residential Tenancies Act 1995

3—Amendment of section 108B—Procedure

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 4—Amendment of Retirement Villages Act 2016

4—Amendment of section 46—Application to Tribunal

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Debate adjourned on motion of Hon. D.G.E. Hood.