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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Statutes Amendment (SACAT) Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Mr TARZIA (Hartley) (15:46): As I was saying, there is currently a long list of specialist tribunals that have been accumulated, and I am happy to say that this proposed consolidated tribunal will certainly streamline the process. In recent years, it seemed like a regression back to the old writ system where you had such specificity that the process was very difficult to navigate. However, I believe that this tribunal will take pressure off the court system and will greatly increase access to justice. The consolidated approach will result in a more efficient system, and a cheaper process in an informal manner, which certainly will facilitate access for many more people. It has certainly been a long time coming and I am hopeful that the government will be proactive when it comes to implementing changes such as this in the future.

The most encouraging function of the tribunal will be its use of alternative dispute resolution (ADR). This is certainly an area that I have a particular interest in. I am passionate about providing support to assist parties in resolving disagreements outside of the formal mechanisms of a court. In many cases you will find that there is not actually need for litigation, and the long, formal, costly and drawn-out process that is associated with court proceedings can be detrimental. I am concerned that ADR will not be given adequate resources, however, and I think it is something to consider for the future. I would encourage the government to ensure that ADR becomes a central pillar of the new system.

In the legal sector, there is certainly greater emphasis in the wider community being placed on this approach. I note that this new approach in SACAT for South Australia will focus on matters that we have touched on, such as informality, accessibility to justice and those who are not necessarily specifically in the legal profession. It is important that the tribunal remains accessible to normal, everyday people who may not necessarily have the tools that they would if they went to court.

This has certainly not been the first attempt to create a system that is generally informal in relation to legal restrictions being reduced. As one of my colleagues mentioned earlier, one example is the Family Law Courts, which was originally designed as an informal, cheaper and accessible model, but it developed into something different altogether. However, super tribunals in other states have certainly taken their statutory objectives of informality seriously and they have implemented tailored procedures to avoid unnecessarily legality and formality.

I believe that this bill will go a long way to reducing wait times, and we have heard during estimates and at other times that the court system is certainly under enormous stress at the moment. This bill will go a long way to reducing those wait times, as it will pool the resources of numerous tribunals and allow for greater efficiency in allocating those resources. A decrease in wait times and better accessibility to justice will certainly be gladly welcomed by the community overall. Concerns that have been expressed that specialist expertise may be lost as result of the establishment of SACAT, from the application of a one-size-fits-all approach, may be valid, but all super tribunal's have retained this specialist expertise by drawing members from a wide variety of varied disciplines. VCAT and QCAT, especially, have organised their work through what they call 'streams', which help to preserve that specialist expertise without fracturing the idea of a super tribunal.

As the member for Bragg pointed out, there certainly are amendments that need to be considered but I will not hold up the debate any longer than I need to; I imagine she will take them up in the committee stage. This is not a perfect solution, and I am sure it will require amendment down the track but, on the whole, I believe it is a step in the right direction. I will go even further than that and say that I think it is the kind reform that South Australia has needed for quite some time. It is sad to have to say that we are the last state to implement such a thing, from what I can recall.

Of course, I would also like to claim credit on behalf of the Liberal Party. We have been calling for a reform of red tape for many years now and, credit where credit is due, I am glad to see that the government has finally opened its ears and listened to the needs of local businesses and hard-working South Australians, who want better and more affordable access to justice. It is a good first step in reducing red tape. Let us make it easier for our judges, let us make it easier for the people who require access to justice. I welcome the government bill.

The Hon. I.F. EVANS (Davenport) (15:51): I rise to speak on the SACAT bill, and I would like to make a few comments on it. The opposition welcomes the establishment of SACAT for the reasons put on the record by other opposition members. I really wish to encourage the government to consider going further with the SACAT bill, and what it can actually hear.

The Liberal Party took a policy to the last election of allowing appeals on land valuations to go to this particular body, and I think there might be amendments coming along those lines. It seems to me that the current land valuation appeals process is very cumbersome and very expensive, particularly when you go through the three stages. Stage 3 is that you can go to the Supreme Court if you wish to take on the government's valuation process, but by the time it gets to the Supreme Court there is usually another valuation in place for the next year, so you are arguing about a particular valuation at a particular point in time that is, quite often, 14 or 16 months previous. It just seems to me to be a very clunky, time-consuming and expensive way to conduct appeals based around land valuations.

There are two ways you could have SACAT take up the proposal. SACAT could be the final arbiter if you wanted, on that particular matter, or you could still go to the Supreme Court after the SACAT, and make SACAT stage 3 in the process and have a fourth process of going to the Supreme Court if you wished. However, you could limit the Supreme Court jurisdiction to matters of law only and not matters of valuation, which would significantly limit the number of cases ending up in the Supreme Court; I think 90 or 95 per cent of the work would end up at the SACAT proposal. It is quicker, nimbler, more cost-effective and gives a quick result for all parties. Certainly the business community lobbied us very hard on that particular issue, that the current process is way too cumbersome.

So we are hoping that the government might come to its senses, I guess, on this particular issue and support the opposition's principle that this SACAT should hear appeals on property valuations. I encourage the Attorney to think about that between the houses, because while the bill is before the house—and I dare say it will not be through the upper house before the winter break—the Attorney has six or seven weeks to consider the matter. I think if he consults the property industry and the legal fraternity that deals in this area they will widely support the opposition's proposal, or something close to it.

I also encourage the Attorney-General and the Treasurer, and indeed the opposition, to go one step further. My view is that SACAT should hear state tax appeals, that is appeals and objections made to the Minister for Finance in relation to decisions made by RevenueSA. These would include appeals regarding land tax, stamp duty, payroll tax and emergency services levy matters. So if that is not already covered by the bill I would encourage the Attorney to make sure they are all covered by this particular bill. They are my only comments.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (15:55): I thank each of the contributors to the debate. In reverse order, can I say to the member for Davenport that I acknowledge all of the points that he has made. It is our intention to cover in a phased way every one of the matters that the member has mentioned.

As members might recall, we established this thing last year without a jurisdiction. We appointed a president, a deputy president and a registrar so that they could get the thing into a ready-to-roll sort of condition. This is the first probably of five bills that we anticipate we will start decanting jurisdiction into the SACAT. I can assure the member for Davenport that those appeals to which he referred are intended to be moved in, not in this particular one because there are some complexities about ongoing conversations with the agencies and drafting and suchlike, but it is intended that they will be going in there.

The point that has been made by both the member for Davenport and the member for Bragg about valuations is something that I will address specifically in a moment, but it was always my intention that they would be included in the jurisdiction of the SACAT. I think the only question really between the government and the opposition at this point in time is not whether these things are to go in, but when these things are to go in. In substance that is the main difference.

Can I say on what for me is something of a high note, an almost exhilarating note, that I have agreed for the first time today with almost everything the member for Bragg has said, and I do not know whether that means that she has a problem or that I have a problem. I say to the member for Bragg, as I indeed said quietly to some members who sit behind me while she was speaking, ‘My God, she’s got it. She’s nailed it.’ And she did. I say quite sincerely that I found myself in furious agreement.

There are one or two slight nuances, though, that I would like to add to the comments made by the member for Bragg. The first one: the member for Bragg made an observation about the similarity between the bill establishing an employment-specific tribunal, which has now been introduced, and this tribunal. If you look at both of the bills you will see that the architecture for both is almost identical. It may well be, in the fullness of time, that there is an appropriate moment for the two of those things to be merged.

I do point out, though, a couple of things which explain why we are doing what we are doing. The first one is that, as the honourable member would be aware—leave aside WorkCover—there is already a very busy schedule that has been planned for some time to fold jurisdiction into SACAT, and no work really has been specifically done about the workers comp jurisdiction, whatever that might eventually look like, being folded in there. That is point number one.

Point number two is that if the workers compensation reforms are to be given effect, they will be effective as of 1 July next year, so there is no time at all for SACAT, amongst everything else it is doing, to get itself completely tooled up to do yet another potentially very large body of work for which it has had no opportunity to prepare.

The third point is that every piece of work I have seen regarding these tribunals around the country says that the critical phase for these things is the cultural imprint that they develop at their genesis, and that cultural imprint needs to have time to settle and become solidified and to, in effect, manifest itself across the range of matters that are folded into it, rather than matters folding into it, altering the culture and mentality of the SACAT. In other words, it is a question of giving SACAT time to develop its own indigenous personality and its own culture without crashing, without much consultation, another quite strong and distinct culture into SACAT.

It may or may not be in the future that the sort of proposition that is being put by the member for Bragg has merit. I would not say for a minute it does not have merit, but given the timelines we are working on, whether it has merits later on or not, it is presently, in my opinion, impractical, for the reasons I have just explained, and it would put enormous pressure on those like President Parker, Deputy President Cole and Registrar Byrt, who are trying to get this thing established and get it running well. They are presently working with a schedule of five phases into which they have put a lot of time and effort to make them roll out appropriately.

I think we are on the right track with doing it the way we are doing it, although, as I said, I acknowledge the point made by the member for Bragg and I think in the perfect world, if we had an infinite amount of time, we might potentially have a look at doing things other ways, but the timelines for SACAT and the timelines for the workers' compensation reforms do not, in my opinion, create a reasonable opportunity for that to be appropriately and safely. So, that is why we are doing that in the way we are doing it.

Questions about guardianship and so on—I will not go into those in too much detail because the member for Bragg has said she is not as yet determining whether she is going to move an amendment or not in that space, but I would make a couple of comments about it. The first comment I would make is this: I am advised that, unlike other states, there is already a combination of a mental health tribunal and guardianship board here in South Australia in the existing Guardianship Board, whereas in other jurisdictions you have this sort of separate notion. It is already collapsed, if you like, into one place, so all we are doing is moving that already collapsed thing from where it is to another place. We are not fundamentally changing the arrangements at all.

That decision was made some time ago when that jurisdiction was given to the Guardianship Board, so there is no sort of 'Eureka!' moment happening here in that space. If there is a problem, and I am not aware of there being one, but if there is, that has got nothing to do with this reform; it is to do with decisions made some considerable time ago about the Guardianship Board, and, quite frankly, I have not been made aware of people being bitterly disappointed about the way the Guardianship Board has done its job as a result of those changes. Anyway, I am happy to keep the dialogue going with the member for Bragg if she wishes on that topic.

I should also make the observation that I gather the government psychiatrist is supportive of what is being suggested. The other point I would make, too, to the member for Bragg is, parking to one side her point about the valuation point, if there are other little bits of fine-tuning and embroidery, as a former prime minister used to refer to, that we need to deal with—

Mr Marshall: Which prime minister was that?

The Hon. J.R. RAU: Keating used to talk about embroidery a lot. If there are other bits of embroidery that are required, we have already flagged that there are four more of these bills coming up over the space of the next 18 months, so it is not as if there will not be another vehicle that can be used to agitate other matters if it is necessary to do so. It is not like you have missed this bus and you will just have to hold your peace for god knows how long; we know there is going to more opportunity to have further conversations about the way this proceeds.

My sincere request is that we do as much as we can to cooperate with the hard work that is being done by very dedicated officers in the Attorney-General's Department and the existing staff of SACAT, who have been working very hard to make sure this is a smooth transition and a very successful beginning to what should be a great asset to our public administration here in South Australia.

I just wanted to mention a couple of brief things about the member for Hartley's speech. The member for Hartley made some comments about the ADR being good. Yes, we agree with that. We absolutely agree with that. Indeed, if you have a look at the fine grain of the way this thing is constructed, part and parcel of it being an inquisitorial jurisdiction is that it is intended to be able to get to the nuts and bolts of problems without being overly frustrated by formality and other bits and pieces that we all know attend the court process from time to time.

I take issue with one thing the member for Hartley said. The member for Hartley sort of made some remark that we were the last of these so-called 'supertribunals' in the country. He mentioned QCAT; he did not mention WACAT. He said he particularly liked VCAT. But, you know, sometimes it is not the first cat that is top cat.

The DEPUTY SPEAKER: And there is more than one way.

The Hon. J.R. RAU: If I can quote from a television jingle of the 1980s, 'The cats of Australia have made their choice,' and it is SACAT. In fact, it is better than that. Given the amount of work that has gone into crafting this, and given the fact that it has learned from every error made around the country, I can say with confidence that this tribunal is the cat's whisker.

The DEPUTY SPEAKER: Just when we thought it couldn't get any sharper.

The Hon. J.R. RAU: That is my—

The DEPUTY SPEAKER: —contribution and you have finished.

The Hon. J.R. RAU: Anyway, I couldn't help myself with that. I just needed to get into it.

Mrs Vlahos: It's better than movie references.

The Hon. J.R. RAU: I was going to suggest he might have been a strange cat, but I—

The DEPUTY SPEAKER: They are not taking you seriously. Do you need some protection, Attorney?

The Hon. J.R. RAU: Yes. I was going to suggest to you he is a bit of a strange cat, but he is alright really. Anyway, back to the main game. As for these particular things that have been raised by both the Leader of the Opposition and the Deputy Leader of the Opposition about the valuations, firstly, I share their concern about them not being brought in—no question about that. Secondly, the only issue we really have is the question about how long it will take for us to adequately consult with the appropriate people and actually work out the appropriate legal vehicle to achieve what we agree is the appropriate outcome.

My offer to the Leader of the Opposition and Deputy Leader of the Opposition—and I indicate this on the record, obviously—is that, in this place, I will oppose the amendments that have been put forward, not because I have a fundamental disagreement with the desired purpose but because, without having confirmation from the Supreme Court and from President Parker and Registrar Byrt, I am not in a position to say that is the best way it can be done or that it can be done effectively by a particularly nominated date which has no connection with whatever it is they have to do.

All of that said, between the houses, as I have undertaken to the member for Bragg and I repeat on the record, I have asked the officers of the Attorney-General's Department working with SACAT to see whether they can solve whatever drafting issues and consultation issues are required with a view to, if possible, when the matter pops back up on the agenda in the other place in September, being able to accommodate the matter that has been raised by the Leader and Deputy Leader of the Opposition.

I just foreshadow that, whilst I will not be supporting those amendments today for the reasons I have just given, I have no fundamental objection to the proposition. If we can do it within a reasonable time frame and perhaps even the time frame they have suggested, it will be done. I have no problem with that as a matter of principle.

When we go into committee, just so that there is no ambiguity about it, I will be moving the amendments in my name, which are 17(1) and (2). These are, I am advised, just matters of drafting detail which needed to be improved after the—

An honourable member interjecting:

The Hon. J.R. RAU: Refinements, I think they are referred to in the euphemism of parliamentary counsel. Then there is the one that has been filed by my learned friend, the member for Bragg. She has two titles really. That one, for the reasons I have just given, we will not be supporting, but I do wish to continue to consider and converse with the member for Bragg and the Leader of the Opposition about those matters during the break.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Clause passed.

Clause 2.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 8, line 2—Delete 'This' and substitute 'Subject to subsection (2), this'

I refer to amendment No. 1. I do not propose to refer to each of the other amendments, other than in the sense of taking them in a block and to say this: the effect of this amendment is to introduce determinations or disputes under the Valuation of the Land Act to the SACAT from the current determination by the Supreme Court Land and Valuation Division, and for all of the reasons that have been canvassed in the debate.

I thank the Attorney for giving favourable consideration to advancing this, which apparently now is consistent with what was his intention in any event to bring it forward from stage 5 to stage 3, and so really it is a matter of sorting out the machinery of how that can be implemented. I accept that work will be done in his consultation with the president and/or Supreme Court justices who have the conduct of the current matters, and I am confident that, when he has apprised himself of that, this is a matter that can be achieved, and for the benefit and all the reasons that have been outlined.

The Hon. J.R. RAU: I thank the honourable member for her remarks and I think everybody in the chamber now understands exactly what is going on on both sides; and to all of those eager readers who will be thumbing through Hansard tomorrow, they will also be enlightened that we have a consensus position in effect. I restate what I said before, that I will be opposing it, but only for the reason that I explained.

Amendment negatived; clause passed.

Clauses 3 to 48 passed.

Clause 49.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 24, after line 9—Insert:

49A—Amendment of section 14A—Extension of time limit

Section 14A(4)(c)—delete 'and appeal'

49B—Amendment of section 23—Notices of determination

Section 23(2)(b)(ii)—delete 'and appeal'

49C—Amendment of section 25—Documents affecting inter-governmental or local governmental relations

(1) Section 25(3)(c)(ii)—delete 'and appeal'

(2) Section 25(3)(d)—delete 'or appeal'

49D—Amendment of section 26—Documents affecting personal affairs

(1) Section 26(3)(c)(ii)—delete 'and appeal'

(2) Section 26(3)(d)—delete 'or appeal'

49E—Amendment of section 27—Documents affecting business affairs

(1) Section 27(3)(c)(ii)—delete 'and appeal'

(2) Section 27(3)(d)—delete 'or appeal'

49F—Amendment of section 28—Documents affecting the conduct of research

(1) Section 28(3)(c)(ii)—delete 'and appeal'

(2) Section 28(3)(d)—delete 'or appeal'

49G—Amendment of section 36—Notices of determination

Section 36(2)(b)(iv)—delete 'and appeal'

49H—Substitution of heading to Part 5

Heading to Part 5—delete the heading and substitute:

Part 5—External review

49I—Substitution of heading to Part 5 Division 1

Heading to Part 5 Division 1—delete the heading and substitute:

Division 1—Reviews by Ombudsman or Police Ombudsman

There is a series of amendments here and I will very briefly explain the purpose of these amendments, because they are all basically the same thing. This amendment corrects an omission in drafting to make consequential amendments to the Freedom of Information Act in Part 7 of the bill. The bill proposes that functions of the Administrative and Disciplinary Division of the District Court under the Freedom of Information Act 1991 be conferred on the tribunal.

Accordingly, the Freedom of Information Act, as amended by the bill, will only specify the new rights of review, not appeal. As the latter will now be set out at Section 71 of the South Australian Civil and Administrative Tribunal Act 2013, for this reason all references to 'appeal' in Sections  14A,  23, 25, 26, 27, 28 and 36 and the heading of Part 5 of the Freedom of Information Act are to be deleted. In other words, I am advised by parliamentary counsel that this was a matter to which they did not apparently turn their mind at the time and they have realised that there was this inadequacy in relation to these matters and for that reason they have suggested the amendments that I now move.

Amendment carried; clause as amended passed.

Clause 50 passed.

Clause 51.

The Hon. J.R. RAU: I move:

Amendment No 2 [AG–1]—

Page 24, line 16— Delete 'seek a review' and substitute:

apply for a review under section 34 of the South Australian Civil and Administrative Tribunal  Act  2013

The amendment relates to Clause 51 of the bill which amends Section 40 of the Freedom of Information Act. Clause 51 of the bill amends Section 40 to remove reference to the District Court and conferring the review function upon SACAT whilst retaining the status quo that such reviews are to be limited to a question of law which must be referred to a presidential member of the tribunal for consideration and determination.

Since the introduction of the bill it has been brought to the attention of the government that it would be prudent to clarify the nature of this review under the SACAT Act. This amendment achieves this by confirming a review, if granted by the tribunal, is pursuant to Section 34 of the South  Australian Civil and Administrative Tribunal Act 2013.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 3 [AG–1]—

Page 24, after line 26—Insert:

(4) Section 40(2)—delete 'appeal against the determination to' and substitute:

apply for a review under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 of the determination by

(5) Section 40(4)—delete subsection (4) and substitute:

(4) Where an application for review is made under Division 1, a review by SACAT under this Division cannot be commenced until that application is decided and the commencement of a review by SACAT bars any right to apply for a review under Division 1.

(6) Section 40(5)(b) and (c)—delete paragraphs (b) and (c) and substitute:

(b) in the case of a review by SACAT of a determination of an agency following an internal review or a determination made on a review under Division 1—the applicant for the internal review or review under Division 1;

(c) in the case of a review by SACAT of a determination that has not been the subject of an internal review or a review under Division 1—the applicant for the determination.

(7) Section 40(7)—delete 'appeal' wherever occurring and substitute in each case 'review'

Amendment carried; clause as amended passed.

Clause 52.

The Hon. J.R. RAU: I move:

Amendment No. 4 [AG-1]—

Page 24, after line 30—Insert:

(1a) Section 41—delete 'appeal' wherever occurring and substitute in each case:

review

Amendment carried: clause as amended passed.

Clauses 53 to 108 passed.

Clause 109.

The Hon. J.R. RAU: Can I just observe that those in the Crown would be familiar with the notion of the model litigant, and, for those observing today, this is the model legislator—ditto, moving along smoothly, it’s good. It's very good.

Clause passed.

Clause 110.

The Hon. J.R. RAU: I move:

Amendment No. 1 [AG-2]—

Page 38, lines 11 and 12—Delete 'under section 34 of the South Australian Civil and Administrative Tribunal Act 2013'

This amendment provides that reviews under section 81 of the Mental Health Act 2009 of a community treatment order or inpatient treatment order made by a clinician fall within SACAT's original jurisdiction under section 33 of the act rather than its review jurisdiction under section 34 of the act.

During development of the bill, a policy decision was taken to distinguish between SACAT's treatment of reviewable decisions made by government and those decisions made by private persons or entities. This is reflected by the amendment to section 34 of the act in clause 180 of the bill. This amendment clarifies that a 'reviewable decision' for the purposes of SACAT's section 34 ordinary administrative review jurisdiction ordinarily means a decision made by the crown.

For the purposes of the Mental Health Act, this policy was given effect by specifically saying that reviews of relevant decisions made by clinicians lie to SACAT's original jurisdiction rather than to the ordinary review jurisdiction. The effect of this is that a further internal review by SACAT applies to decisions made by SACAT in its original jurisdiction.

This preserves the status quo whereby decisions of the Guardianship Board are appealable to the Administrative and Disciplinary Division of the District Court before a further appeal right to the Supreme Court. In other words, we are not cutting out any levels of review. Since the introduction of the bill, the reference in error to section 34 of the act in clause 110 of the bill was brought to the attention of the government and this amendment rectifies that.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No. 2 [AG-2]—

Page 38, after line 14—Insert:

(2a) Section 81—after subsection (1) insert:

(1a) For the purposes of the South Australian Civil and Administrative Tribunal Act 2013, a review under this section will be taken to come within the Tribunal's original jurisdiction.

This one is a ditto, as I just read out.

Amendment carried; clause as amended passed.

Remaining clauses (111 to 194) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (16:25): I move:

That this bill be now read a third time.

I again thank the Leader of the Opposition and the Deputy Leader of the Opposition for their helpful contributions in relation to the matter and I repeat that we will be open to conversation about how we can deal with their problems over the winter recess.

Bill read a third time and passed.

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