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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Fair Trading (Motor Vehicle Insurers and Repairers) Amendment Bill

Second Reading

Debate resumed.

The Hon. S.C. MULLIGHAN (Lee) (10:59): I rise to lend my support to this bill. I was a member of the Economic and Finance Committee that considered this industry in the inquiry when the member for Waite was Chair of the Economics and Finance Committee, and the evidence regarding what is going on in the local industry is overwhelming—absolutely overwhelming.

Basically, the industry is largely comprised of independently owned, South Australian-owned motor vehicle repairers here in South Australia. They have a relationship with a small number of insurance companies, from which motor vehicle owners obtain insurance and then seek to have their vehicles repaired if they come to some sort of grief on the roads.

It is a difficult operating environment for these small locally owned South Australian businesses, because there has been a growing practice, not amongst all insurers but amongst some insurers, where a vehicle is presented to a repair shop for repair, a quote is given based on the repairer's expertise and knowledge of an adequate repair of that vehicle back to original specification, back to a standard which renders that vehicle fit for purpose and safe on our roads. That quote is then provided to the insurance company so that they can approve the repair and authorise those costs being incurred by the repairer to give effect to that repair, and almost without exception that quote is rejected by an insurance company.

There used to be a practice in the industry where an insurance company would send down one of their inspectors to view the vehicle and provide their own assessment about the extent of the repairs that were required and how much it would cost to provide an adequate, appropriate and safe repair. There would perhaps be some negotiation between the insurance company and the motor vehicle repairer if there was any difference of opinion about what the motor vehicle repairer had estimated as the cost and the extent of the necessary repairs and what the insurance company had estimated.

Largely, that does not even happen anymore. Instead, there are inspectors who sit in a corporate office somewhere, who request photos from the motor vehicle repairer and who look at those photos on their desktop computer and try to ascertain how much they can cut down that quote by the motor vehicle repairer. It places the repairer in an invidious position because, if they are not able to reach agreement with that insurance company, then the insurance company will not approve the repair and that motor vehicle repair shop will not be able to conduct its business in effecting the repairs on that vehicle.

Inevitably what happens is that these small family-owned South Australian businesses are forced to accept what the insurance company deems from this remote incomplete inspection of the vehicle as a much reduced cost for those repairs. That gives rise to what is commonly referred to in the industry as 'funny time, funny money', where the insurer then has to reduce the amount of time they will commit to giving effect to the repairs and reduce the cost of the repairs on each level.

That means that for a current model vehicle, a modern vehicle that might have safety sensors incorporated within its front bumper bar, front grill, windscreen or other part of the vehicle, corners are cut. Non-original equipment is installed on that vehicle because it is cheaper, more readily available and more efficiently installed, rather than the genuine part from the automotive manufacturer.

That means, according to the evidence the committee was given, that in many cases modern cars are being repaired to a standard where they are not at the original manufacturer's standard or, to put it more simply, are unsafe to be on our roads. If you had a front-end collision, perhaps in the context or at the speed that the member for Hammond was indicating, then I am flabbergasted that $14,000 would be enough to repair a modern-day Toyota Prado that had hit a two-metre high kangaroo at 110 km/h.

Allow me to digress at this point: this is a story often told by the member for Hammond, and it has varied slightly from when I first heard it. Rather than being an accident that happened recently in a Toyota Prado with a two-metre high kangaroo, my recollection from first hearing this was that it happened many years ago in a KE20 Corolla and that it was a small wallaby that was hit and a headlight was broken. Such has been the effluxion of time and the number of times that story has been told, we are at the current state of facts as they are now recalled by the member for Hammond. But, as I said, I digress.

It is a good point that when such a significant accident happens in such a large, modern vehicle like a Toyota Prado it is almost inconceivable that that vehicle could be repaired for $14,000, bull bar or no bull bar. Maybe that is a reflection that the cost of effecting the repair was not truly represented in how much that motor vehicle repairer was paid by the insurance company. It has got to the point now where the insurance companies are wanting to cut costs further for their shareholders and for their profit margins.

I should say that not all insurance companies but some insurance companies are now choosing to bypass local motor vehicle repairers altogether and they are establishing their own crash shops around the nation. In fact, the Economic and Finance Committee visited one of these crash shops, and it was a vastly different experience from a locally owned South Australian small business crash repairer, which we also visited.

These insurance company owned crash shops operate on the basis of fixed cost and high volume. Regardless almost of the actual level of damage and the actual need to repair and replace specific parts on that vehicle, there is a fixed price that the insurer pays for the repair of that vehicle. It would not matter if I had a front-end collision in my particular vehicle or if the member for Enfield or the member for Finniss had a front-end collision in their particular type of vehicle, when presenting at this crash shop, that crash shop is remunerated the same amount by the insurance company to give effect to that repair—an absolutely remarkable circumstance.

That is why it is so important that the member for Waite has brought this to the house. Of course this report from the Economic and Finance Committee was provided to the government and of course nothing happened in response, which is why we have had to have a private member's bill introduced. I am a little alarmed that the Attorney would say, 'Well, we waited for the federal government to act here and they haven't, so that's why we have to act.'

Let's be clear: South Australia is the home of consumer protection law. We were the first jurisdiction to legislate not only a trade practices act but a fair trading act, so we should not brook any sort of argument from the Attorney that this is something best done by the commonwealth. In the Attorney's mind, it might be more conveniently done, but it is not best done, because we are the people who are elected by our constituents to represent their needs, including consumer protection, and this is an area where we do need some consumer protection.

I could have spent the brief time allocated complaining about the number of occasions I have become involved in the repair of a motor vehicle and how frustrating that is, including having to do it on behalf of elderly relatives, who are particularly at a disadvantage with how some of these policies are worded.

I understand that the Attorney moved some amendments and there is some level of agreement and acceptance of some of those amendments, which is encouraging. But there was one thing that was not canvassed in the member for Waite's bill, which I am still passionate about, and that is consumer should know up-front whether they get choice of repairer on their insurance policy, whether it is a quote for insurance—

The Hon. V.A. Chapman interjecting:

The Hon. S.C. MULLIGHAN: —whether it is an offer of insurance for the policy being taken up for the first time or whether it is a renewal notice. I will be moving that amendment. I heard the Deputy Premier say, 'Hear, hear!' I am glad that she agrees.

I know that we have a proudly South Australian company, the RAA, that does act well in this area and does provide choice of repairer, but if you do not go with that South Australian company and you want to go with one of these national insurers, whose behaviour on occasion in this regard can be questionable, then consumers have the right to know whether they have this included in their policy.

Mr COWDREY (Colton) (11:09): As the chair of the Economic and Finance Committee who tabled the report to this parliament into motor vehicle insurers and repairers, I rise to make some brief remarks, noting that I have spoken previously at the tabling of that report in detail and to the guts of the 11 recommendations that were made by the committee.

It is important to reflect on the fact that, at the centre of the recommendations and the work the committee undertook, our focus was always on delivering greater transparency for customers in the car repair industry here in South Australia. Other members so far this morning, and previously, have canvassed the behaviour that can be described in no other terms than as being unacceptable, as well as the practices that have gone on in the industry for a period of time. As the chair of the Economic and Finance Committee, I was certainly proud to table this report and put forward the 11 recommendations to government.

Of course, it is a preference that these matters be dealt with at a national level to ensure consistency across the country; I think everyone here understands that insurers operate across jurisdictions. In only the last few months we have had a further example of just how important our cross-border communities are, and the issues involved with them, so ensuring national consistency across these issues is very important, but—and there is always a but—in the absence of the federal government taking this up in any sort of manner that could be described as quick, as the South Australian parliament I believe we have an obligation to consumer protection within South Australia to take action on this matter.

In essence, the bill seeks to put forth a number of the recommendations made by the committee, in particular the mandating of the currently voluntary code of conduct within the industry and, of course, the disclosure of interests by insurers into repair shops prior to shifting that business, in essence, to one of those repair shops. This is a practice known as 'steering' within the industry, and it is something many Australian consumers, many South Australian consumers, are probably unaware of when they are pointed towards a crash repair shop after having crashed their car. At the best of times, in those circumstances I think it would be very rare that somebody was thinking clearly and concisely. To not necessarily have that drawn to their attention is not something that, at first blush, they would look into.

There are a number of other recommendations that have been made by the committee, and it is very clear that a number of those will need to be addressed at the federal level, particularly the issue around non-OEM or second-hand parts. That clearly falls within the federal jurisdiction, and there are issues of importation, quality and standards that this parliament will need to see the federal government take up over time—we certainly hope that is the case.

As has already been noted by the Attorney, the government has filed nine amendments to the bill. Most of those are technical in nature, but the crux of them, as has been mentioned, is to replace the criminal penalties with civil penalties and expiation fees. This will bring the bill into consistency with penalties applied in the industry codes of conduct under the act, as well as enabling fees to be prescribed in relation to dispute resolution procedures undertaken under the applicable industry code of conduct.

There also is an amendment that requires industry consultation on the regulations declaring an applicable code of conduct. Again, this is consistent with similar requirements applied through the Fair Trading Act. There are further amendments, which I have ready noted.

It is also incumbent on us to ensure that this piece of legislation is as good as it can be. Effectively, we are taking the lead nationally on this issue. With that being said, I am sure there will be further examination of the bill between the two houses. Let that not be a reflection on the member for Waite and his preparation of this bill, but we need to ensure this is as good as it possibly can be so that we do not have to address this in short order and also so that we set a precedent, a standard, an example, for other parliaments across the country to potentially look at implementing down the track.

Again, I would like to thank the many small businesses, the crash repair shops, that provided full and frank evidence to the committee through the inquiry. It was certainly something that we appreciated. To the MTA, to the other stakeholders, to the members of the committee and to the secretariat who prepared the report for this parliament, I thank them again for their efforts over a long period of time.

We as a government certainly hope that the passage of this bill, in tandem with the work that has already been undertaken in WA and New South Wales, provides a level of impetus to the federal government to get on with this and deal with this issue. But in the absence of the lead being taken by the federal government, as we have done previously with gift cards and ticket scalping, when there is an area where we see the need to protect consumers' rights and consumers' needs, we will do that. That has been proven. I am glad to see bipartisan support across the parliament for this bill.

Mr DULUK (Waite) (11:15): I quickly thank everyone who participated in the debate this morning: the member for Hammond, the member for Enfield, the opposition support of this legislation and the Deputy Premier for her contributions. I have not had a chance to mull over all the proposed amendments from the government. Some I am happy to take at face value this morning and support and some I think may be things we can negotiate between the houses.

I also thank the member for Lee, and I foreshadow that I will support his amendment, and the member for Colton for his contribution and for overseeing the tail end of this report through the Economic and Finance Committee. I also thank the members of the Motor Trade Association—and there are quite a few in the gallery today—for their support and their legal guidance through this process. They have been great advocates for their members. I know that a lot of the work we are doing in the house is through the good work of the MTA.

During the committee stage, when we support the amendments or do not support the amendments before us, we will be much guided by the MTA, as they know what is best for their members.

Bill read a second time.

Mr COWDREY: Sir, I draw your attention to the state of the house.

A quorum having been formed:

Committee Stage

In committee.

Clauses 1 and 2 passed.

New clause 2A.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 2, after line 9—Insert:

2A—Amendment of section 4B—Administration of Act

(1) Section 4B(2)—after paragraph (b) insert:

and

(c) Part 3B in relation to an applicable industry code of conduct or a provision of that Part if the regulations made for the purposes of that Part declare that the Commissioner is to have that responsibility.

(2) Section 4B(3)—delete 'or Part 3A in relation to an industry code or provisions of an industry code' and substitute:

Part 3A in relation to an industry code or provisions of an industry code or Part 3B in relation to an applicable industry code of conduct or a provision of that Part

Essentially, this is to insert paragraph (c), which reads:

Part 3B in relation to an applicable industry code of conduct or a provision of that Part if the regulations made for the purposes of that Part declare that the Commissioner is to have that responsibility.

And, furthermore, to delete some reference to the industry code or provisions of the industry code and insert:

Part 3A in relation to an industry code or provisions of an industry code or Part 3B in relation to an applicable industry code of conduct or a provision of that Part

As outlined in the second reading contribution, I indicate that the Fair Trading Act is one which makes provision for the appointment and functions of the Commissioner for Consumer Affairs to be the body which is responsible for the administration of the act, together with the provision for the administration of certain aspects of the act to be by the Small Business Commissioner. The industry codes of conduct in relation to this matter have been reviewed by the Commissioner for Business Services, both as the Commissioner for Business Services, Mr Soulio, and his deputy as the Acting Small Business Commissioner to take responsibility in this area.

All industry codes in relation to mandatory codes of conduct are in this category and accordingly on his advice it doesn't deter from the principle of the act but makes provision as to who is to attend to the responsibility of this.

New clause inserted.

Clause 3.

The Hon. V.A. CHAPMAN: I move:

Amendment No 2 [AG–1]—

Page 3, line 2 [clause 3, inserted section 28H]—After 'Part' insert:

, unless the contrary intention appears

This amendment is consistent with the matter I have just submitted.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 3 [AG–1]—

Page 3, after line 4 [clause 3, inserted section 28H]—After the definition of applicable industry code of conduct insert 'Commissioner means—'

(a) the Commissioner for Consumer Affairs; or

(b) the Small Business Commissioner;

This amendment is consistent with the submissions I have already put on amendment No. 1.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 4 [AG–1]—

Page 3, lines 28 to 30 [clause 3, inserted section 28J(1), penalty provision]—Delete the penalty provision

This amendment relates to clause 3, page 3, lines 28 to 30 in relation to the penalty provision. The amendment again foreshadows the recognition of the transfer from criminal to civil remedy, consistent with other Fair Trading Act enforcement.

I am also trying to read the member for Lee's amendment on the run, which appears to be adding a new provision for a penalty for conduct in failing to disclose certain information that is held by the insurer—that is the way I am quickly reading it. I will have a look at that in due course. I do not want to confuse my argument. It may have some merit, but I am not sure how it might affect it yet.

The CHAIR: The member for Waite has a question.

Mr DULUK: It is not so much a question. I indicate that I will not be supporting amendment No. 4 on the main basis that the Economic and Finance Committee's inquiry into this whole industry made some very clear recommendations, including the need for penalties to go with breaches of the code. We have seen a code of practice be in place for some time in New South Wales—I think almost some 20 years—and there are no penalties for breaches of that code. To coin a phrase, it is a toothless tiger.

What has been proposed in the bill very much has the support of the Motor Trade Association. I am happy to further consider this between the houses and consult further with the MTA and industry. I am not aware if they have had any chance for consultation on the proposed amendments by the Attorney. This might be something that we discuss between the houses, but for right now I indicate that I will not be supporting amendment No. 4. To help the committee, I also indicate that I will not be supporting amendments Nos 5, 6 and 7 as proposed by the Attorney when we get to those stages.

The Hon. V.A. CHAPMAN: I note and agree with the statements made by the mover of the bill in response to the amendments and agree that the foreshadowed amendments are relating to the same matter. I want to reassure the house and the member that the advice I have received from the Commissioner for Consumer and Business Services and his team is that—and I have had a review of course of the Fair Trading Act—the industry codes, for which they are responsible, all have civil penalties.

I have noticed that there are some interesting anomalies in the act. The last time I think we opened it was for the fuel notification obligations. Ticket scalping was the other one in the time I have been here. There seems to be some inconsistency in relation to the drafting of these and even that is supposed to be, according to parliamentary counsel, consistent with the decision about whoever is drafting them. It seems a rather odd thing to me. There is inconsistency in the bill because, for example, we have the provision for the obligation for retailers of fuel as describing it as 'is guilty of an offence'. That wording does not appear in the mover's bill in this instance, yet it purports to be consistent with instructions to have a criminal sanction.

I really have not got to the bottom of that, frankly, but I hear what the questioner is raising in relation to my amendment and it will be a matter that will continue to be pursued with parliamentary counsel. But I am advised by the people who actually implement all these things at Consumer and Business Services that he operates on the basis, for most of these industry codes, of being the recipient of a complaint and that their body provides a dispute resolution process or mediation.

Sometimes that is mandated, as we know. There are certain procedures where that occurs. In fact, even during COVID we have mandated for disputes relating to rental of commercial properties, for example. There is a mandated process, which we have given directly to the Small Business Commissioner. So there are circumstances where the mandated dispute resolution processes are there. Building contract disputes are also in that category where we have a special law to deal with that. But the contravention of these is in relation to civil penalty, I am advised. Therefore, consistent with that, I am moving this amendment to provide for that.

I do agree with the commentary made by the mover of the bill and the questioner of this amendment as to the toothless tiger. At the moment, there is no provision. There is a voluntary code of conduct and there is no penalty, so I agree with him. If there is to be a capacity to enforce this—that is the whole model of this bill—my amendment is simply to be consistent under the Fair Trading Act with the model that exists in relation to the enforcement of codes of conduct. I am happy to further discuss it with the mover of the bill in relation to the matter and, indeed, the MTA to answer any question they have in relation to this and the application of that.

I just remind the house and the questioner of the amendment that Mr Soulio is the person in charge of these matters and, as I say, his second in charge is actually the Acting Small Business Commissioner as well. I am told by my office that she is at some other forum right at the moment and is not here, but if she is not here, others will be available to answer questions in relation to that.

At this stage, I am trying to assure the house that we are not moving this tranche of amendments to undermine in any way the effectiveness or enforceability of an obligation and exactly the same penalties will prevail. It is simply within the format of what is there and exactly the same penalties apply.

Ms MICHAELS: Can I ask the Attorney, in relation to the new section 28J(1) and your amendment, was there consideration given to amending 28J(1) to make it a civil penalty and still having the $100,000 and $20,000 penalties, because it seems on your amendments that would be substantially reduced?

The Hon. V.A. CHAPMAN: I do not believe it has, but I will make some inquiry about that. Certainly, we have had a lot of conversations about whether it is a criminal penalty or a civil penalty.

Ms MICHAELS: This may come up in further debate with all your amendments, but from my reading of it the expiation fee would not exceed $6,000 for a body corporate; therefore, that would be substantially reduced.

The Hon. V.A. CHAPMAN: No, we are adding an expiation fee. We are adding a provision that is consistent with other industry codes, but we have an expiation fee. I will give you an example: in the fuel app arrangement—that is the mandatory obligation for retailers to record their fuel; I think it is a $10,000 fine—we also, as a parliament, at the request of the commissioner added into that the capacity for him to do basically a summary offence or on-the-spot fine for that to occur for trivial matters and also power not to proceed with a minor matter. So we have given that in other areas of reform on the Fair Trading Act.

The Hon. S.C. MULLIGHAN: I also indicate that I will not be supporting the Attorney's amendment here for many of the same reasons as the member for Waite has articulated. There is a great frustration in the industry, particularly amongst those South Australian-owned small businesses that comprise the bulk of the motor vehicle repair industry, that we currently only have a voluntary code. It is not signed up to by the entire industry. But even if you have a mandatory code and the penalties are either non-existent or grossly insufficient, then they have not really advanced their cause much at all.

As the member for Enfield said, section 28F of the Fair Trading Act does outline a maximum expiation fee under the industry code section of only $6,000. Even if there is a successful action taken in the Magistrates Court, in the further penalty provisions articulated in part 7, division 3A of the Fair Trading Act they do not exceed $50,000, which is no more than half of what is being sought by the member for Waite and indeed the broader industry to better represent their interests.

Ayes 21

Noes 23

Majority 2

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Gardner, J.A.W. Harvey, R.M. (teller)
Luethen, P. Marshall, S.S. McBride, N.
Murray, S. Patterson, S.J.R. Pederick, A.S.
Pisoni, D.G. Power, C. Sanderson, R.
Speirs, D.J. Tarzia, V.A. Teague, J.B.
van Holst Pellekaan, D.C. Whetstone, T.J. Wingard, C.L.
NOES
Bedford, F.E. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brock, G.G.
Brown, M.E. Close, S.E. Cook, N.F.
Duluk, S. (teller) Ellis, F.J. Hildyard, K.A.
Hughes, E.J. Koutsantonis, A. Malinauskas, P.
Michaels, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Stinson, J.M.
Szakacs, J.K. Wortley, D.
PAIRS
Knoll, S.K. Gee, J.P.

The CHAIR: While I have the attention of the committee, I am going to remind all members that it is out of order to take photographs within—

Members interjecting:

The CHAIR: Order! I have been made aware that a member has taken a photograph, and I ask that member to delete any photograph.

An honourable member: Which member?

The CHAIR: I don't know. I didn't see.

An honourable member interjecting:

The DEPUTY SPEAKER: Order!

The Hon. V.A. CHAPMAN: I move:

Amendment No 5 [AG–1]—

Page 3, line 35 [clause 3, inserted section 28J(2)(a)]—Delete 'the Commissioner has attempted to resolve the dispute' and substitute 'an attempt has been made to resolve the dispute by conciliation'.

This is consequential to amendment No. 3, which the parliament has previously approved today.

The Hon. S.C. MULLIGHAN: I indicate that along with, in my understanding, the member for Waite, we will be opposing amendment No. 5. There is a specific reason that we would like any disputes escalated to a level of commissioner, whether it be for consumer affairs or for a commissioner for small business, and that is to have a senior level of conciliation or arbitration involved in these sorts of disputes.

To remove that and say that an attempt has been made to resolve the dispute by conciliation could mean anything and could mean an arrangement which is weighted against the crash repairer in favour of the insurer, for example, or contrived in a manner where no solution can be reached and so an attempt, yes, has been made but nothing further needs to be done. It is a poor amendment for what the member for Waite is trying to achieve in his bill and we do not support it.

The Hon. V.A. CHAPMAN: I will speak briefly in response to that. This is a consequential amendment to amendment No. 3, so this is not any new substantive role. I just remind members that amendment No. 3, which has been endorsed, was to provide a definition of commissioner to allow for the provision of a commissioner of consumer affairs or small business commissioner, as the case required, and that is for the industry code of conduct for the definition of commissioner. This is consequential to that; this is not any new process at all. It is purely consequential and which the parliament has already approved.

Mr DULUK: I have a question to the Attorney moving this. Attorney, you are proposing to delete the words 'commissioner' or 'the Commissioner has attempted to resolve the dispute', but I assume that if we were to leave the words 'the Commissioner has attempted to resolve the dispute' it will mean, by virtue of our passing the previous amendment, the Commissioner for Consumer Affairs and/or the Small Business Commissioner?

The Hon. V.A. Chapman: Correct. Yes, it is consequential, clearly consequential.

The CHAIR: Member for Waite, have you finished?

Mr DULUK: Yes, sir.

The Hon. S.C. MULLIGHAN: For the committee's benefit, in amendment No. 3 we defined the commissioner as being either the Commissioner for Consumer Affairs or the Small Business Commissioner, essentially to deal them into this arrangement so that they would have a role here.

In the member for Waite's bill, he included the words 'the Commissioner has attempted to resolve the dispute', putting a specific requirement or task on the commissioner in the event that disputes arise and they need to be resolved. What the Attorney seeks to do is, despite our having dealt the commissioner in and defining who the commissioner is, get them out of that dispute resolution or conciliation arrangement. That is why we do not support it.

The Attorney tries to say that this is consequential on clause 3 passing to give us the impression that the member for Waite's bill would be a nonsense, literally, if we were to reject her amendment No. 5. I just do not accept that at all. What we are trying to do is make sure it is the commissioner who is involved in resolving disputes and not that there is some other attempt, ill-defined or not defined at all, at conciliation, satisfactory or unsatisfactory.

The Hon. V.A. CHAPMAN: I note the conspiracy theories of the member for Lee, but I just want to assure him, again, and the house that amendment No. 3, which provided a definition of 'commissioner'—and we have been through that—now makes it superfluous to need any reference to 'the commissioner' at all. I think the mover of the bill actually fully understands that. He seems to be across it. I am not sure why the member for Lee is not.

I just want to reassure the house: there is no sinister change in process here. The fact is that we have defined it to allow for who is to be in the process here. It is completely superfluous now to the provision that has already been passed by the parliament. I do not know how much more I can reassure the parliament of that. It seems the member for Lee has some other sort of sinister expectation. I want to assure him that is not the case.

Ms MICHAELS: Can I clarify with the Attorney: in new clause 28J(2) we are talking about:

If an alleged contravention of an applicable industry code of conduct is the subject of a dispute between an insurer and repairer, the provisions of Part 7 for enforcement or remedies in respect of the contravention do not apply unless—

in the Attorney's amendment, 'an attempt has been made to resolve the dispute by conciliation'. Where, in those words, does it require the commission to be involved?

The Hon. V.A. CHAPMAN: Because that process is what we are actually setting up here. The purpose of this bill is twofold. One is to have a mandatory code of conduct and also have a process by which there can be some opportunity to adjudicate through that and/or resolve the matter. If it does not, then, of course, there is a responsibility of the commissioner to actually implement a penalty, if there has been a determination that there has been a breach of that mandatory code of conduct.

Again, all I am indicating at this point is that, having provided a definition, we no longer need to have that provision in there that 'the commissioner has attempted to resolve the dispute'. It simply needs a provision where 'an attempt has been made to resolve the dispute by conciliation'. It may be by either of the commissioners.

The committee divided on the amendment:

Ayes 19

Noes 23

Majority 4

AYES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Gardner, J.A.W. Harvey, R.M. (teller)
Luethen, P. Marshall, S.S. McBride, N.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Tarzia, V.A. Teague, J.B. Whetstone, T.J.
Wingard, C.L.
NOES
Bedford, F.E. Bell, T.S. Bettison, Z.L.
Bignell, L.W.K. Boyer, B.I. Brock, G.G.
Brown, M.E. Close, S.E. Cook, N.F.
Duluk, S. (teller) Ellis, F.J. Hildyard, K.A.
Hughes, E.J. Koutsantonis, A. Malinauskas, P.
Michaels, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Stinson, J.M.
Szakacs, J.K. Wortley, D.
PAIRS
Knoll, S.K. Gee, J.P.

Amendment thus negatived.

The Hon. A. Koutsantonis interjecting:

The CHAIR: Order! Member for West Torrens, you have been called to order already this morning during a division.

The Hon. A. Koutsantonis interjecting:

The CHAIR: The member for West Torrens is warned.

Mr Malinauskas interjecting:

The CHAIR: The leader is called to order. We come now to amendment No. 6.

The Hon. V.A. CHAPMAN: I move:

Amendment No 6 [AG–1]—

Page 4, lines 5 to 9 [clause 3, inserted section 28J(4)]—Delete subsection (4) and substitute:

(4) The annual report required to be submitted by the Commissioner for Consumer Affairs under section 12 must include the following information in relation to the financial year to which the report relates:

(a) the number of proceedings commenced by the Commissioner under section 86B for an alleged civil penalty contravention against section 28J(1) and the outcome of those proceedings;

(b) the number of civil expiation notices issued under section 86D in respect of an alleged civil penalty contravention against section 28J(1).

This amendment is to delete subsection (4) and substitute provisions there for the annual report. I will not repeat them all; I think they are fairly clear. It is an amendment consequential to the indication of the proposal to change to civil penalties and expiation fees. I note the will of the house in relation to the latter, and the indication of the mover of the bill in relation to his objection to changing to civil penalties from criminal penalties, and his desire to retain some criminal sanction.

I do remind all of the house, including the mover of the bill, that the consistency remains with recommendation 3 of the inquiry, which he chaired, which states:

3. The South Australian Government report yearly on insurance companies found either in breach of the Code of Conduct or with adverse findings against them.

I therefore recommend that this amendment be accepted.

The CHAIR: Any questions for the Attorney? Member for Waite.

Mr DULUK: Not so much a question but, as I indicated before, I will not be supporting this one because of the changes re civil and criminal provisions. Of course, the original bill proposes the reporting. As I said to the Attorney, I am happy to consider these between the houses as we progress.

Amendment negatived.

The Hon. V.A. CHAPMAN: I move:

Amendment No 7 [AG–1]—

Page 4, lines 17 to 19 [clause 3, inserted section 28K(1), penalty provision]—Delete the penalty provision

Again, this amendment deletes this provision, noting the government amendment is to replace it with civil penalties and expiation fees, consistent with all of the other provisions for existing industry codes under the Fair Trading Act 1987.

The Hon. S.C. MULLIGHAN: I indicate that it is opposed.

Amendment negatived.

The CHAIR: We now come to the member for Lee, who has an amendment standing in his name.

The Hon. S.C. MULLIGHAN: One of the greatest frustrations for—

Members interjecting:

The CHAIR: Order!

Members interjecting:

The CHAIR: No, leader! Order from everyone! Before I call the member for Lee, I am going to remind the leader that I have called him to order once during this committee stage and I am now warning him. Given that there are divisions going on—

Mr Malinauskas interjecting:

The CHAIR: Don't laugh. I am warning you.

The Hon. S.C. MULLIGHAN: I would just like it noted for the record that I was the best behaved out of all of us in that rare interlude.

The CHAIR: Uncharacteristically, member for Lee.

The Hon. S.C. MULLIGHAN: It has been a day of surprises, sir. I move:

Amendment No 1 [Mullighan–1]—

Page 4, after line 19 [clause 3, inserted section 28K]—After subsection (1) insert:

(1a) An insurer must, at the prescribed times and in the prescribed manner, disclose to the holder of an insurance policy issued by the insurer whether or not the insurance policy contains a provision allowing the holder of the insurance policy to make a choice as to which repairer may be engaged to undertake repairs under the insurance policy.

Maximum penalty:

(a) in the case of a body corporate—$100,000;

(b) in the case of a natural person—$20,000.

Basically it is to reflect the great frustration that a lot of motor vehicle insurance policyholders have when they have a collision and they set about trying to get the damage to their vehicle fixed, but they may not realise that they have a policy which does not afford them a choice of repairer. It is often not disclosed when the policy is first taken out, or if there is a change in the policy that is offered to an insurance holder it may not be declared that that change in policy has happened. That is the basis—I will not say for the majority of frustrations in this area, but a great deal of the frustrations in this area.

We raised this in a couple of the hearings of the committee about whether it would be beneficial for the entire industry, for example, when you got a quote for insurance or you got your first offer for an insurance policy or you got your renewal notice for your insurance policy, if it was declared up-front on the front page of that document whether this policy had a choice of repairer or not.

This will not affect that South Australian company the RAA, for example, because they offer choice of repairer. But, unfortunately, some of the nationally owned and multinationally owned insurance companies—not all, but some of whose behaviour has led us to having this debate today whose behaviour is not so great—do not offer choice of repairer.

Even when they have a discretion to enable a policyholder to have their car repaired at somewhere other than their own crash repair shops, the behaviour is usually belligerent in refusing the policyholder that opportunity, even when, for example, a regional member of our community maybe forced to take their damaged vehicle—sometimes undriveable—hundreds of kilometres away from where the vehicle had its accident or remains in a damaged state to a repairer elsewhere around the state. Let's try to put South Australian consumers on a more level playing field with the insurers that they are sometimes in dispute with, and have this very simple change.

I should say that it has actually been an initiative of this place under the former Labor government's reforms to the compulsory third-party insurance scheme that on the front page of your registration renewal notice you are told which of the insurers are available and how much it costs. That is a great initiative and basically what we are trying to do is the same thing here.

The Hon. V.A. CHAPMAN: There may be merit in this proposal if it was apparently raised at the committee. It did not translate into a recommendation of the committee, I note. However, there may well be some merit in it. We will consider it between the houses, obviously, and we will consult with the insurers. I would not put it exactly the same as the government's flogging off of the motor vehicle insurance provisions, which they did under their regime, because of course you do have some choice. You have to pick one of the three. That is some choice. Often, that is not Labor Party policy. We are the party of choice, so it has some merit.

I was very unhappy when we had health insurers coming in to start telling us who we can use to do our teeth and dental work. They introduced this provision where they say, 'From here on in you have to have some of our nominated dentists.' I do not agree with that. I never have, and I think that there should be some choice.

Unfortunately, the example the member has used does not really persuade me, because of course they gave a very controlled choice of only the three that they pick. Nevertheless, it may have some merit. We will certainly consider it between the houses. I cannot agree with it today, obviously, as it has just been put before us, but we will consider it between the houses.

Mr DULUK: I indicate that I will be supporting the amendment by the member for Lee. I have had some discussions with the MTA on this matter this morning and they are very supportive of this amendment.

Amendment carried.

The CHAIR: Attorney, we are back to amendment No. 8 standing in your name.

The Hon. V.A. CHAPMAN: I move:

Amendment No 8 [AG–1]—

Page 4, after line 26—After inserted section 28K insert:

28L—Regulations

(1) Regulations made for the purposes of this Part may—

(a) declare (subject to section 4B(3)) whether the Commissioner for Consumer Affairs or the Small Business Commissioner is to be responsible for the administration of this Part or a provision of this Part; and

(b) declare that a contravention of section 28J(1) of a particular class (constituted of a contravention of the whole or any specified part of an applicable industry code of conduct) is to be subject to a civil penalty under Part 7 Division 3A; and

(c) declare that a contravention of section 28K(1) is to be subject to a civil penalty under Part 7 Division 3A; and

(d) fix expiation fees (not exceeding $6,000 in the case of a body corporate and $1 200 in the case of a natural person) for alleged civil penalty contraventions within the meaning of Part 7 Division 3A; and

(e) prescribe fees payable in relation to dispute resolution procedures undertaken under an applicable industry code of conduct.

(2) A proposal for regulations for the purposes of this Part or a provision of this Part may be initiated by—

(a) if the Commissioner for Consumer Affairs is to be responsible for the administration of this Part or a provision of this Part—the Minister responsible for the administration of this Act; and

(b) if the Small Business Commissioner is to be responsible for the administration of this Part or a provision of this Part—the Minister responsible for the administration of the Small Business Commissioner Act 2011.

(3) If a Minister initiates a proposal for regulations in relation to an applicable industry code of conduct or another provision under this Part, the Minister must, before the regulations are made, consult with each organisation that the Minister considers to be representative of an industry likely to be affected by the applicable industry code of conduct or provision (as the case requires).

(4) For the purposes of the Subordinate Legislation Act 1978, the Minister responsible for the administration of the Small Business Commissioner Act 2011 is to be taken to be the Minister responsible for the administration of this Act in respect of regulations that declare the Small Business Commissioner to be responsible for the administration of this Part or a provision of this Part.

Again, amendment No. 8 is quite extensive. It is really consistency with the largely mirroring of the provision of a possible section 25F of the Fair Trading Act, which allows regulations to implement these things. The commissioner is to be responsible for the whole or parts, declaration of contraventions, enable fees to be prescribed and require industry consultation.

Mr DULUK: This is not so much a question but just to help me with process. I support 28L(1)(a) but would like to move an amendment to the Attorney's amendment to delete (b), (c), (d) and (e).

The CHAIR: So, member for Waite, you are actually moving an amendment to the amendment; is that correct?

Mr DULUK: Yes, sir.

The CHAIR: Just so that we are all clear with what you are moving, would you mind repeating that, please?

Mr DULUK: I move an amendment to the Attorney's amendment No. 8:

Section 28L(1)—Delete paragraphs (b), (c), (d) and (e).

So 28L(1) will read as 'Regulations made for the purposes of this Part may be' and paragraph (a) only.

The Hon. V.A. CHAPMAN: I indicate that I do not accept the amendment. I withdraw amendment No. 8 and indicate I will not progress with amendment No. 9.

The CHAIR: The Attorney has indicated to the committee that she will be withdrawing amendment No. 8 standing in her name. The member for Waite has moved an amendment to that, so he could, by way of process, withdraw his amendment to the amendment.

Mr DULUK: By leave of the committee, I withdraw my amendment to amendment No. 8.

Leave granted; amendment withdrawn.

The Hon. S.C. MULLIGHAN: I notice this is not perhaps best practice, but I think it would be helpful to the bill to enable regulations to be made. So, in my name, could I move an amendment to the bill that would insert, from the Attorney's amendment No. 8, proposed new section 28L(1)(a) only.

The CHAIR: We probably need to do that after. Just in conversation with the committee, we have a couple of options here. Member for Lee, your amendment would ensure that 28L(1)(a) remains and all else would be disregarded?

The Hon. S.C. MULLIGHAN: On reflection, sir, I would also seek to include from the Attorney's withdrawn amendment No. 8, subsections (2) (3) and (4) as well, so my amendment would comprise 28L(1)(a) and then subsections (2) (3) and (4). I move to amend the amendment as follows:

Subsection (1)—after paragraph (a) delete:

(b) declare that a contravention of section 28J(1) of a particular class (constituted of a contravention of the whole or any specified part of an applicable industry code of conduct) is to be subject to a civil penalty under Part 7 Division 3A; and

(c) declare that a contravention of section 28K(1) is to be subject to a civil penalty under Part 7 Division 3A; and

(d) fix expiation fees (not exceeding $6,000 in the case of a body corporate and $1 200 in the case of a natural person) for alleged civil penalty contraventions within the meaning of Part 7 Division 3A; and

The CHAIR: We have a few options here and we are on the fly.

The Hon. V.A. CHAPMAN: I am happy to second that.

The CHAIR: You are happy to second that. Given that, Attorney, although you indicated to the committee that you would withdraw, we did not get to the point where you had the leave of the committee to do that. So your amendment remains, that is okay, and the member for Lee can move his amendment to the amendment which is that 28L(1)(a) remain and—

The Hon. S.C. MULLIGHAN: Subsections (2) (3) and (4). I am sure that is clear for all the viewers at home, sir.

The Hon. V.A. CHAPMAN: If my motion is still there as amendment No. 8, because leave has not been granted to withdraw it, then I will accept an amendment from the member for Lee to delete the proposed new section 28L(1)(b), (c), (d) and (e).

The CHAIR: Yes, that is correct. We are all clear and all in agreeance? The question before the Chair is that the amendment to the amendment moved by the member for Lee be agreed to.

The Hon. V.A. CHAPMAN: Before you put the motion, I indicate that I have just had a last-minute request from the commissioner. Given that he is having this regulation power and has this role, he would seek to leave in 28L(1)(e), which is the capacity to charge a fee for the dispute resolution. If the mover of the amendment to the amendment is prepared to accept that, I will note the same.

The CHAIR: I will just give the mover of the amendment to the amendment a moment to consider that.

The Hon. S.C. MULLIGHAN: I hope this is not some shakedown by the commissioner, prescribing fees payable to access his valuable services, but knowing the commissioner as we all do we are grateful for his advice and I would be happy to accept that change.

Amendment to the amendment carried; amendment as amended carried; clause as amended passed.

The Hon. V.A. CHAPMAN: I will not proceed with my proposed new clauses 4, 5 and 6 on file.

Title passed.

Bill reported with amendment.

Third Reading

Mr DULUK (Waite) (12:12): I move:

That this bill be now read a third time.

It has clearly been a collaboration this morning, and I thank the house for that and I thank the Attorney for her considered proposal. I think there will be some debate between the two houses, but I think we have seen a very productive morning for consumer protection law in South Australia, and I thank the crossbench for its invaluable support on these issues, the opposition and the government.

Bill read a third time and passed.

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