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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Attorney-General's Portfolio No 3) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 October 2017.)

Ms CHAPMAN: Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:38): I do not think I have anything further to add to my contribution the other day, so I will sit down.

The DEPUTY SPEAKER: So that is the end of the debate.

The Hon. J.R. RAU: Sorry, I do need to make a clarification, as I have just been reminded. I thought I had covered everything, but no.

The DEPUTY SPEAKER: I cannot hear the Attorney. There is too much background noise.

The Hon. J.R. RAU: I would like to make a correction to the record in relation to the government's consultation on the proposed amendment to the Magistrates Act. In her second reading contribution, the member for Bragg referred to a copy of the proposed amendment having been sent to the Chief Justice about a month earlier. It was my understanding that that had occurred. I have since been informed that, due to an administrative error in my office, the letter referred to was not received by the Chief Justice at that time.

As soon as the error was identified, I arranged for a copy of the proposed amendment to be provided to the Chief Justice, which occurred on 23 October. The government has no hidden agenda on the matter, as has been suggested by the opposition. As we have already made clear, the proposal has no impact whatsoever on the incumbent Deputy Chief Magistrate.

Both the Chief Magistrate and the former chief magistrate have made themselves available, as I understand it, to answer questions and to provide any further information the opposition may require. The Chief Magistrate has also made herself available to other members, again as I understand it, and I hope that has allayed any concerns.

Bill read a second time.

Standing Orders Suspension

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:40): I move, without notice:

That standing orders be so far suspended as to enable me to move an instruction to the committee of the whole house without notice.

The DEPUTY SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:42): I move:

That it be an instruction to the committee of the whole of the house, on the Statutes Amendment (Attorney-General's Portfolio No 3) Bill, that it have power to consider new clauses relating to an amendment of the Advance Care Directives Act 2013, the South Australian Employment Tribunal Act 2014 and the Spent Convictions Act 2009.

Motion carried.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

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

Amendment No 1 [DepPrem–2]—

Page 3, line 6 [clause 2(1)]—Delete 'subsection (2)' and substitute 'this section'

Amendment No 2 [DepPrem–2]—

Page 3, after line 7—Insert:

(1a) Sections 14A to 14C (inclusive) will be taken to have come into operation on 1 July 2017.

Ms CHAPMAN: My understanding is that these amendments relate to the necessary protection of the existence of the South Australian Employment Tribunal, which you have written to me about and which we consent to.

Amendments carried; clause as amended passed.

Clause 3 passed.

New clause 3A.

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

Amendment No 1 [DepPrem–3]—

Page 3, after line 13—Insert:

Part 1A—Amendment of Advance Care Directives Act 2013

3A—Amendment of section 45—Resolution of disputes by Public Advocate

Section 45(12)—delete subsection (12)

Ms CHAPMAN: As to the insertion of a new part 1A, I indicate that the Attorney-General has again written to us to identify an anomaly that has arisen, requiring some amendment to the Advance Care Directives Act to ensure that there is a consistency of powers of delegation for the Public Advocate. I summarise that; he has written quite a lengthy proposal as to why this is necessary. We accept those and indicate that we consent to this amendment.

New clause inserted.

Clauses 4 to 11 passed.

Clause 12.

The CHAIR: We are looking at schedule (2), amendment No. 1 in your name, deputy leader. All you have to do at the end is say you do not agree, but you are going to speak to it, because you are going to delete it.

Ms CHAPMAN: I advise the committee that we will not be progressing with this amendment in its current form, but I want to foreshadow what I understand to be on its way. This is the situation. The government's proposal in this bill has been to establish a new model of appointment for the deputy magistrate, rather than the Governor's appointment—that is, by cabinet on advice from the Attorney-General—for the appointment of a deputy. The government's proposal is to allow the appointment of a deputy chief magistrate to be on the determination of the chief magistrate. It is novel. It has been a proposal developed in Victoria, but that is the extent to which it has been adopted in Australia.

The Attorney-General is correct in advising the house that the current Chief Magistrate and more recently retired chief magistrate have both made themselves available for consultation by the opposition. I thank them both for making themselves available when they attended here at Parliament House yesterday for that to occur. As expressed to them and to the parliament, it is a rather novel approach, I suggest, to have the appointment of a judicial officer as an administrative act of another—as distinct from the parliament and/or the Governor—and it raises a number of questions.

The Chief Magistrate's position on this—as the Attorney-General has pointed out, this is a proposal that has emanated from her as the desired option—is to have a process of appointment that allows for some flexibility so that she may draw upon personnel amongst the magistracy who might have a certain skill set that might be useful at any given time. I am paraphrasing her position on this, and I think I am accurately asserting it. I am sure the Attorney will correct me if I am not. It is proposed that it be for a period of up to five years to enable that skill set to be utilised for a particular purpose. Then, as time passes, the contemporary needs of the Magistrates Court may change, and it gives the chief an opportunity then to appoint someone who might have a different set of skills that might assist in the administration or the advancement of the court.

That is all very well, but it is the opposition's view that if we are going to have these positions, then they are a matter for independence of appointment through the process. The alternative—and the opposition have considered this—is that the office of Deputy Chief Magistrate be abolished altogether. I can tell the Attorney and the parliament that that is a matter that was canvassed with the Chief Magistrate: that it be abolished at the conclusion of the current term of the deputy, who I think is due to retire in mid-2018 by virtue of his age. I think, for the purposes of this debate, it has always been intended by the government that there would be no interference with his position in any event and that this change of model they are proposing would not interfere in any event. That has been canvassed with the Chief Magistrate.

Her alternate opportunity to give someone higher or different duties in her court is still available through the regional magistrates, and we have canvassed that. That would be another option: for her to draw upon the skills and strengths of magistrates and to ask them to convene certain committees or to undertake certain work.

It is the view of the opposition, having considered these matters, that really what should occur is that the office of Deputy Chief Magistrate be abolished. That will require some amendments to section 6 of the Magistrates Act of 1983. Although that act is already open for the purposes of changing the model, the amendments to do that have not yet been finalised, I am advised from my office. Therefore they will need to be presented in another place—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: —unless, of course, the government are intending to agree to that.

The Hon. J.R. RAU: In the interests of shortening the matter, can I indicate that I do not know how far away the amendments to which the deputy leader is referring are, but on the assumption that PC is into this fairly quickly—and they may or may not be, but if they are—and I get a chance to look at them and I can independently check with the Chief Magistrate about these things, it may be possible that we can deal with that here.

In saying that, I do not want to do that on the basis that it is going to slow the progress of the bill, but I am prepared to be as flexible as I reasonably can be and if that means that we seek leave to continue our remarks at the end of the committee stage of the bill without actually ending the committee stage of the bill, and then we go on to other business and if in the meantime we can get that material in—

The CHAIR: I am advised we can do that. We just have to come back to it.

The Hon. J.R. RAU: If that is of any assistance.

The CHAIR: We can pass it as it is.

Ms CHAPMAN: We could come back to this clause, because there are other amendments to deal with.

The CHAIR: We can do what we did last week or we can pass it as it is and come back to it; either way, we can come back to it.

Ms CHAPMAN: At the moment there is an amendment standing in my name to delete part 6, which is basically the government's model.

The CHAIR: It is not actually an amendment because all you are going to do is vote no, if you wish to vote no. It is not actually an amendment per se.

Ms CHAPMAN: I understand that. But to achieve what we are now—

The CHAIR: —thinking about doing—

Ms CHAPMAN: —of course we now need to have amendments drafted and tabled to amend section 6—not part 6—of the principal act. I think the Attorney has been following this and he understands exactly what we are talking about, which essentially would be to delete subsection (1)(a) of section 6 and probably amend subsection (3) of section 6. As usual with these things, parliamentary council are forensic in their understanding of what other bits and pieces need to be tidied up and so, in short, I am not suggesting that that is a comprehensive resolution of it, but, like the Attorney, I would like to be able to come back to it so that we can deal with it.

Consideration of clause postponed.

Clauses 13 and 14 passed.

New clauses 14A, 14B, 14C, 14D, 14E and 14F.

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

Amendment No 3 [DepPrem–2]—

Page 6, after line 35—Insert:

Part 7A—Amendment of South Australian Employment Tribunal Act 2014

14A—Amendment of section 3—Interpretation

Section 3(1), definition of relevant Act—after 'an Act' insert: (including this Act)

14B—Insertion of Part 2 Division 8

After section 26I insert:

Division 8—Additional provisions relating to jurisdiction under Workers Compensation Act 1971

26IA—Additional provisions relating to jurisdiction under Workers Compensation Act 1971

(1) The purpose of this section is, in consequence of—

(a) the continued application of the Workers Compensation Act 1971 under Schedule 9 clause 59(1) of the Return to Work Act 2014; and

(b) the dissolution of the Industrial Relations Court under section 69 of the Statutes Amendment (South Australian Employment Tribunal) Act 2016, to confer on the Tribunal the same jurisdiction under the Workers Compensation Act 1971 that was previously conferred on the Industrial Relations Court.

Note—

The Workers Compensation Act 1971 was repealed by the Workers Rehabilitation and Compensation Act 1986.

(2) The Workers Compensation Act 1971 is to be read—

(a) as if a reference in that Act to the 'Court' were a reference to the Tribunal; and

(b) as if reference in that Act to a 'Judge' were a reference to a Presidential member of the Tribunal who is a District Court judge; and

(c) as if a reference in that Act to the 'Registrar' were a reference to a registrar of the Tribunal; and

(d) as if a reference in that Act to an 'Industrial magistrate' were a reference to a Presidential member of the Tribunal who is a magistrate; and

(e) as if a reference in that Act to the 'Rules' were a reference to the Rules of the Tribunal; and

(f) as if a reference in that Act to the 'Regulations' were a reference to regulations under this Act; and

(g) as if a reference in that Act to the 'Full Industrial Relations Court' were a reference to the Full Bench of the Tribunal in Court Session.

(3) The jurisdiction of the Tribunal by virtue of the operation of subsection (2) is assigned to the South Australian Employment Court.

14C—Amendment of section 93—Regulations

Section 93(2)(e)—after 'under' insert 'this or'

14D—Transitional provisions

(1) In this section— decision, of the Industrial Relations Court includes a direction, determination or order of the Industrial Relations Court; decision, of the Tribunal, has the same meaning as in the principal Act; Industrial Relations Court means the Industrial Relations Court as in existence immediately before the commencement of section 69 of the Statutes Amendment (South Australian Employment Tribunal) Act2016; principal Act means the South Australian Employment Tribunal Act 2014; relevant day means the day on which this section comes into operation; Tribunal means the South Australian Employment Tribunal.

(2) A decision (or purported decision) of the Industrial Relations Court made in consequence of Schedule 9 clause 59(1) of the Return to Work Act 2014 in force immediately before the relevant day will, on and from the relevant day, be taken to be a decision of the Tribunal.

(3) A right (or purported right) to bring proceedings in consequence of Schedule 9 clause 59(1) of the Return to Work Act 2014 before the relevant day (but not so exercised before that day) will be exercised as if Part 2 Division 8 of the principal Act had been in operation before the right arose, so that the relevant proceedings may be commenced before the Tribunal.

(4) Any proceedings that were before (or purportedly before) the Industrial Relations Court in consequence of Schedule 9 clause 59(1) of the Return to Work Act 2014 before the relevant day will, subject to such directions as the President of the Tribunal thinks fit, be transferred to the Tribunal where they may proceed as if they had been validly commenced before the Tribunal.

(5) The Tribunal may—

(a) receive in evidence any transcript of evidence in proceedings before (or purportedly before) the Industrial Relations Court, and draw any conclusions of fact from that evidence that appear proper; and

(b) adopt any findings or determinations (or purported findings or determinations) of the Industrial Relations Court that may be relevant to proceedings before the Tribunal; and

(c) adopt any determination (or purported determination), or make any determination, in relation to proceedings before (or purportedly before) the Industrial Relations Court before the relevant day (including so as to make a determination in relation to proceedings fully heard, or purportedly fully heard, before the relevant day); and

(d) take other steps to promote or ensure the smoothest possible transition from 1 jurisdiction to another in connection with the operation of this section.

(6) Nothing in this section affects a right of appeal to the Supreme Court against a decision, direction or order of the Full Court of the Industrial Relations Court made or given (or purportedly made or given) before the relevant day.

(7) A reference in any instrument or agreement made (or purportedly made) in consequence of Schedule 9 clause 59(1) of the Return to Work Act 2014 to the Industrial Relations Court will, unless the context otherwise requires, be taken to be a reference to the Tribunal.

Amendment No 4 [DepPrem–2]—

Page 7, before line 1—Insert:

Part 7B—Amendment of Spent Convictions Act 2009

14E—Amendment of section 13—Exclusions

Section 13(2) to (5)—delete subsections (2) to (5) inclusive

14F—Amendment of Schedule 1—Exclusions

Schedule 1—before clause 1 insert: a1—Application of exclusions

(1) An exclusion set out in a clause of this Schedule—

(a) does not apply in relation to an offence if the conviction has been quashed and the person has been granted a pardon for the offence, except as may be prescribed by the regulations;

(b) does not apply in relation to a designated sex-related offence in relation to which an order has been made under section 8A, except—

(i) in relation to the operation of clause 9A; or

(ii) as may be prescribed by the regulations.

(2) An exclusion under clause 6, 7 or 8 does not apply in relation to an offence committed by a particular person if a qualified magistrate has made an order to that effect under section 13A.

(3) The regulations may provide that an exclusion set out in a clause of this Schedule does not apply in relation to a finding (as constituting a conviction for the purposes of this Act) that is taken to be immediately spent under section 4(1a).

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:01.

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