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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-11-13 Daily Xml
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Enforcement of Judgments (Garnishee Orders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2014.)

Mr SPEIRS (Bright) (10:59): It is my pleasure today to rise to speak on the Enforcement of Judgments (Garnishee Orders) Amendment Bill 2014, which has been proposed by my colleague, the member for Hartley. I think this amendment is a great example of a member of parliament going into the community, identifying a real issue that is facing members of our community and using our privileged position within this place to drive legislative change. The member for Hartley has been approached by many people in his community about debt enforcement—an issue which is particularly prevalent and damaging within the small business sector—and he wants to fix this problem. He is to be commended for that.

The enacting of garnishee orders would simply be providing our judiciary with another instrument in their toolkit, something to give them flexibility in the remedies that they can hand out and one which we can be more confident will deliver a fair outcome for the plaintiff and a just outcome for the guilty defendant. The government should not be in the business of covering for debtors.

If people have debts they should pay them. It is a basic principle of our modern society. It is a principle upon which business is founded and one which, if it did not exist, would see a fundamental breakdown in trade, commerce and civil society. If you have a debt you should pay it. That sounds straightforward, doesn't it? It sounds like the right thing to do. Our laws should encourage and deliver responsible behaviour rather than the opposite, and they should protect creditors and also provide compassionate frameworks for debtors to repay their debts.

Put simply, a garnishee order is a court order requiring the employer to withhold part of the wages owed to a particular employee (the debtor) and pay the amount instead to that employee's creditor or the court in satisfaction of a debt which is due. It is a method designed to ensure that the employee makes some payments towards the debt they owe. The instructions to the employer may come in the form of a letter, a notice or a writ issued by the court.

As the law currently stands, a garnishee order with respect to salaries can only be issued to the losing defendant if that defendant actually provides the court with consent. Obviously, this makes no sense, as it would take a fairly noble wrongdoer (I am sure we can acknowledge that there is something of an oxymoron present in the term 'noble wrongdoer') to decide to give consent to the garnishing of their wages, having drawn out a dispute to the point that it has reached court.

Garnishee orders create an option for a structured, manageable repayment program where people's ability to pay is constrained. So, in effect, garnishee orders create a legally binding payment strategy which will be compassionate enough not to overwhelm the debtor but ensure that those who are owed money can also have certainty that that debt will be paid. I think for the small business sector in particular and in the area of mum-and-dad investors, who might have investment properties where rent goes unpaid, the certainty and knowledge that that money will come through a structured enforceable strategy, such as the garnishee order, is incredibly important.

We know that small business in South Australia for many reasons is really up against the wall at the moment. There are significant struggles and barriers facing the small business sector, and anything we can do in our role in this place to make small business have more certainty, to give them ways of recovering their debts, we should be looking at and working towards.

The model proposed by the member for Hartley is flexible, appropriate and compassionate to all involved, both the debtor and the creditor. It solves a major problem within our courts, that being the court's ability to follow through with enforcement capacity. Currently, the court and the judges involved can have a desire to solve a problem but do not have that enforcement capacity to follow through and ensure that the debtor can actually cover those debts.

I thank the member for Hartley for this contribution and urge members of the house to support what I reiterate I believe is a flexible, appropriate and compassionate model to debt collection in our state.

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