South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2024.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (16:45): I rise to speak on the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill, which introduces two critical changes to the South Australian Civil and Administrative Tribunal Act 2013. First, the bill proposes changes to part 3A of the act. Currently this section permits SACAT to refer certain cases to the Magistrates Court when the tribunal is barred from handling the 'federal matter'. Under the Australian constitution federal matters are narrowly defined and relate to the federal diversity jurisdiction. This bill seeks to expand the scope of part 3A to include all federal matters, ensuring that SACAT can manage a broader range of cases without jurisdictional limitations.

The second change addresses issues raised by SACAT regarding the restrictive definition of a legally qualified member. This strict definition limits the number of members eligible to handle certain types of decisions or orders, leading to inefficiencies within SACAT and other parties involved. This bill aims to broaden the criteria, thereby increasing the pool of members qualified to preside over these matters and improving the overall efficiency of the tribunal.

I would like to address the first amendment of this bill, which broadens the scope of part 3A of the act to encompass all federal matters. The constitutional implications recognised in the High Court case of Burns v Corbett [2018] HCA 15 prevents bodies that are not courts of the state under section 77 of the Commonwealth Constitution from exercising federal judicial powers over matters outlined in sections 75 and 76 of the constitution.

This ruling significantly impact SACAT's ability to manage residential tenancy disputes where one party resides interstate, a frequent occurrence in SACAT's caseload. Part 3A was added to the SACAT Act in 2018 to address this issue, allowing SACAT to transfer cases involving federal diversity jurisdiction to the Magistrates Court. The Magistrates Court is then empowered to handle these matters with the same authority and procedures as SACAT. Typically these cases are managed smoothly within SACAT premises by a SACAT member who also serves as a magistrate or judicial registrar.

However, the scope of part 3A was initially limited to matters falling under section 75(iii), where the commonwealth is the party, and 75(iv), involving residents of different states of the constitution at the time. These were the only scenarios where the Burns v Corbett limitation was expected to apply to SACAT.

Since then SACAT's jurisdiction has broadened, and other states have amended their tribunal legislation to allow for the transfer of federal matters more generally, covering any case described in sections 75 and 76 of the constitution. To align with these changes and avoid any jurisdictional gaps, this bill proposes a similar amendment to part 3A. The Liberal Party agrees with this sensible amendment. We believe in efficiencies of process and consistency across jurisdictions and agree that this amendment will solve residual issues the original part 3A amendment did not capture.

I will now move to the second change to the act—that is, redefining a legally qualified member of the tribunal by including other members who hold a relevant qualification in law, have five years of relevant experience in a law-related field and are designated as legally qualified members by the president.

SACAT comprises various member types: the president and deputy president, designated magistrates, senior members and ordinary members, and assessors. Senior and ordinary members are appointed based on either their experience as practising legal professionals or their expertise relevant to SACAT decision-making. However, the current definition of a legally qualified member restricts certain types of orders and decisions to a limited group, defined as a legal practitioner with at least five years' experience.

This restriction has been problematic. SACAT has several members with extensive legal knowledge and experience but do not meet the five-year practice requirement. These members often have the qualifications and skills to handle complex legal issues, yet, due to the current definition, SACAT must assign cases requiring specific legal orders to a narrower pool of eligible members, potentially causing delays, especially in urgent cases as often required under the Guardianship and Administration Act 1993.

The bill proposes expanding the definition of a 'legally qualified member' to include SACAT members who, while not having five years of legal practice, possess appropriate legal qualifications and experience. The SACAT president would determine this decision. We also support this sensible amendment.

By supporting this bill, we ensure that SACAT can continue to effectively serve the people of South Australia and provide efficient, high-quality and cost-effective dispute resolution services to our community.

The Hon. S.L. GAME (16:50): I rise briefly to address the government's South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024. Efficiency and public service often do not go hand in hand, so measures to improve efficiency and better bang for buck for this state's taxpayers must always be our goal as lawmakers.

The amendments to broaden the scope of Part 3A of the act to encompass all federal members seems logical and desirable and the bill also addresses concerns raised by SACAT regarding restrictions to the pool of members able to hear particular matters and describes those restrictions as creating inefficiencies for the tribunal and, indeed, all parties involved. The broadening of the definition of a 'legally qualified member' for the purposes of the SACAT Act aims to address that inefficiency, with the worthwhile aim of continuing to provide an improving and efficient dispute resolution for South Australians.

The Hon. T.T. NGO (16:51): I rise to speak on the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024, a bill that makes two changes to the South Australian Civil and Administrative Tribunal Act 2013. The first part of this bill amends Part 3A of the act. In its current form, the South Australian Civil and Administrative Tribunal (SACAT) moves cases to the Magistrates Court when SACAT is not allowed to handle certain federal issues because of sections 75 and 76 in the Australian Constitution.

The restriction about what SACAT can handle was influenced by the 2018 Burns v Corbett case, which clarifies the limits on the types of cases state tribunals can manage, reinforcing the separation between state and federal legal powers in Australia. In the Burns v Corbett case, the court ruled that state tribunals that are not formal courts do not handle certain legal disputes that are reserved for federal courts defined by the Australian Constitution in sections 75 and 76. Even though tribunals are usually seen as handling government decisions, SACAT and most civil and administrative tribunals in Australia deal with both government decisions and legal cases, which is a mix of both administrative and legal powers.

The Burns v Corbett case is often referenced because it explains that cases involving people from different states must be handled by federal courts, not state-level tribunals. For example, residential tenancy disputes often include one of the parties living interstate, meaning that SACAT could not deal with such matters. Under Part 3A, if SACAT had a case where the commonwealth is a party or where the people involved are from different states, SACAT sends the case to the Magistrates Court. The Magistrates Court manages the case in the same way as SACAT would using the same methods and powers.

This problem led to the SACAT Act being amended in 2018 to insert a new Part 3A for diversity proceedings or, in layman's terms, cases involving parties from different states under federal law. This current amendment will give SACAT the power to handle more types of cases, which will provide more streamlined and efficient services. To be extra careful, this amendment bill will change part 3A to match what other states are doing.

The second change to this amendment bill relates to the necessary qualifications of individual SACAT members. To qualify, SACAT members include: the president, deputy president, designated magistrates, senior and ordinary members and assessors. Senior and ordinary members of SACAT are chosen to deal with specific matters based on their experience as lawyers or their expertise in areas relevant to SACAT's decisions.

Some members are not lawyers but may have special knowledge, such as expertise in social work or medicine, and they can also make decisions. There are SACAT matters that require members to be legally qualified and have to be a presiding member, a magistrate or a lawyer with at least five years of experience. The SACAT legal members handle specific orders, such as requiring reports on mental capacity or making an audit under section 73 of the SACAT Act to delay the action of a decision until the case is fully settled.

The reason for needing legally qualified members is that such orders are similar to court orders and require a strong understanding of the law. The president of SACAT decides who handles each case, making sure members have the right skills, qualifications and independence. Some SACAT members have law degrees and legal experience but have not practiced law for five years.

The second part of this bill broadens the definition of a 'legally qualified member' to include those with legal qualifications but less than five years of practice. The aim of this amendment bill is to help SACAT improve its provision of efficient and affordable dispute resolution for people in South Australia, and I commend it to this chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:56): I wish to thank the honourable members who have contributed on this important bill, and I look forward to the committee stage.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:59): I move:

That this bill be now read a third time.

Bill read a third time and passed.