HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2025-03-06 Daily Xml
Contents
Xml

South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) (17:02): I move:

That this bill be now read a second time.

I am pleased to introduce the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024. The bill makes two substantive changes to the South Australian Civil and Administrative Tribunal Act 2013.

First, the bill amends part 3A of the act, which currently provides for the South Australian Civil and Administrative Tribunal to transfer matters to the Magistrates Court, where SACAT is barred from dealing with that 'federal matter' under the Australian Constitution. Such federal matters are currently only limited to matters relating to the federal diversity jurisdiction, and so this bill would broaden the scope of part 3A to encompass all federal matters.

Secondly, the bill will address concerns raised by SACAT that the strict definition of 'legally qualified member' for the purposes of determining which SACAT members are allowed to make certain types of decisions or orders in SACAT unduly restricts the pool of members able to hear any particular matter, with resulting inefficiency for SACAT and all parties involved.

To speak to the first change proposed by the bill, the constitutional implication recognised in the High Court case of Burns and Corbett (2018) HCA 15 prevents a state tribunal that is not a court of the state exercising judicial power with respect to any matter of the kind described in sections 75 and 76 of the constitution.

The Burns and Corbett limitation will only apply when a state tribunal is exercising judicial power. Although tribunals are more commonly considered to undertake administrative decision-making—classically, reviews of administrative decisions of government—most civil and administrative tribunals in Australia, including SACAT, exercise a mix of both administrative and judicial powers. A classic example of SACAT exercising judicial power is SACAT's residential tenancies jurisdiction to resolve legal disputes between lessors and lessees under residential tenancy agreements.

Burns and Corbett had involved a dispute between residents of different states, which is the federal diversity jurisdiction under section 75(iv) of the constitution. The High Court held that state tribunals that are not state courts cannot exercise judicial power with respect to any of the classes of matters listed in sections 75 and 76 of the constitution. The consequent inability for SACAT to deal with residential tenancy disputes where one of the parties resides interstate proved to be a big impediment, as it transpired that SACAT deals with many residential tenancies disputes involving interstate lessors.

That problem led to the SACAT Act being amended in 2018 to insert a new part 3A for diversity proceedings. Under part 3A, if SACAT considers that it may lack jurisdiction to deal with a particular application made to SACAT because it involves federal diversity jurisdiction, it can transfer the matter to the Magistrates Court, which is correspondingly empowered to deal with the matter in the same way—including informally—and with the same powers SACAT would have if it had dealt with the matter. In practice, these matters are dealt with seamlessly on SACAT premises by a SACAT member who is also a magistrate or judicial registrar sitting as the Magistrates Court.

The present issue arises because in reacting to the Burns and Corbett decision the scope of part 3A was limited to the types of matters that may fall under section 75(iii) (commonwealth is a party) or 75(iv) (residents of different states) of the constitution. At the time, these were the only situations in which it was considered that the Burns and Corbett limitation would arise in practice in SACAT.

Since part 3A was inserted into the SACAT Act, SACAT's jurisdiction has been expanded to include a broader range of matters and it also appears that several other jurisdictions have amended their equivalent civil and administrative tribunal legislation to provide for transfer to a court by their equivalent tribunal of 'federal matters' generally—that is, any matter of a kind described in sections 75 and 76 of the constitution. Out of an abundance of caution, the bill will amend part 3A consistently with those interstate approaches.

I now move to the second substantive change to the act that the bill makes. Depending on the nature of a matter, SACAT is constituted by a single member, or a panel of members, from the following member types under SACAT Act section 9: the president, a deputy president, magistrates who are designated as members of the tribunal, senior members and ordinary members, and assessors. The senior and ordinary members are appointed on the basis of experience as a practising legal practitioner or on the basis of relevant expertise to SACAT decision-making, with section 19(3) of the SACAT Act setting out these respective limbs of eligibility for appointment to SACAT.

Members appointed under the non-legal practitioner eligibility limb include both people with law subject matter expertise who are not admitted to practice and/or do not have five years' past legal practice, as well as non-legal subject matter experts with experience and qualifications in areas including social work, accountancy, economics, child development and medicine. These non-legal members currently preside over some SACAT matters and write decisions. For example, a SACAT member with qualifications and experience in social work is nominated to sit in SACAT's guardianship and administration and mental health lists.

The SACAT Act, as well as various acts that confer jurisdiction and functions on SACAT, reserve certain types of SACAT decisions and orders only to a legally qualified member of SACAT. The types of orders and decisions that may only be made by a legally qualified member include:

an order under section 73 of the SACAT Act staying the operation of a decision until proceedings are finally decided;

the power to require reports, including reports as to mental capacity under section 69 of the Guardianship and Administration Act 1993; and

the power to make an order in the nature of an injunction under section 35 of the Residential Tenancies Act 1995.

The SACAT Act in turn defines 'legally qualified member' for that purpose as a presidential member, magistrate member or another member of the tribunal who is 'a legal practitioner of at least five years' standing'.

The reason for reserving these particular orders and decisions to a legally qualified member is that they are orders of a court-like nature, including requiring understanding of legal rights and proficiency in principles of procedural fairness that are expected to be gained from a law degree plus experience in practising in the profession of law. In practice, SACAT has multiple members who are legally qualified in the sense of having a law degree plus extensive relevant experience, for example as a legal academic or as a member of another tribunal.

These members have been appointed under the 'extensive knowledge, expertise or experience' limb of the eligibility criteria for appointment as a SACAT member due to not having five years' legal practice experience. SACAT is forced to list certain matters before a legally qualified member, as strictly defined, if apprehended that there is any prospect of any of the types of reserved orders needing to be made. This can then lead to delays with matters due to a narrower pool of members being eligible to deal with hearings, including urgent hearings, as often required under the Guardianship and Administration Act 1993.

The objectives of SACAT in providing efficient and low-cost dispute resolution support a tailored approach to determining which members are considered legally qualified for the purposes of restricting the exercise of certain SACAT powers. Under section 23 of the SACAT Act, the President of SACAT determines which members or member are to constitute SACAT for a particular matter or matters, subject to the SACAT Act or another act providing otherwise.

The SACAT president would need to be satisfied that a member has the requisite independence to hear matters of the relevant type and the legal skills to deal with matters of the relevant complexity. In addition, SACAT advises that only members with significant legal experience and the necessary skills, including SACAT's senior members, are assigned to hear matters that are considered to be complex.

A Supreme Court or District Court judge, as the SACAT president is required to be, should be relied upon to constitute SACAT appropriately for various types of matters from the pool of members appointed under the eligibility criteria set out in the SACAT Act, including to guard against increased applications for internal review or appeal of SACAT decisions. Accordingly, the bill would broaden the definition of 'legally qualified member' for the purposes of the SACAT Act to include also SACAT members with appropriate legal qualifications and law-related experience but without five years' practice as a legal practitioner, who are designated by the SACAT president as a 'legally qualified member' for the purpose of those reserved decisions and orders.

I am pleased to introduce this bill to make such technical changes to the act to ensure that SACAT can continue to provide efficient, high-quality and low-cost dispute resolution for many South Australians. I commend the bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of South Australian Civil and Administrative Tribunal Act 2013

3—Amendment of section 3—Interpretation

This clause amends the definition of legally qualified member to include members of the Tribunal who hold a qualification in law from an Australian tertiary institution, or who hold a qualification in law from a tertiary institution in a foreign country and are duly admitted and enrolled as a barrister and solicitor of the Supreme Court, if they have 5 years or more relevant experience in a law-related field and are designated as a legally qualified member by the President of the Tribunal.

4—Substitution of section 28

This clause substitutes section 28 as follows:

28—Validity of acts of Tribunal

The proposed section updates current section 28 of the Act to provide that acts or proceedings of the Tribunal are not invalidated by reason of a vacancy or defect in an appointment or by reason of an absence of or defect in a designation of a member of the Tribunal as a legally qualified member.

5—Amendment of heading to Part 3A

This clauses amends the heading to Part 3A to reflect the broadened scope of the Part.

6—Amendment of section 38A—Interpretation

This clause deletes the definition of federal diversity jurisdiction and inserts a definition of federal jurisdiction, meaning the jurisdiction contemplated by section 75 or 76 of the Commonwealth Constitution. These amendments broaden the scope of Part 3A by expanding the class of matters which are able to be transferred by the Tribunal to the Magistrates Court for determination under the Part.

7—Amendment of section 38B—Transfer of applications involving federal diversity jurisdiction to Magistrates Court

8—Amendment of section 38C—Magistrates Court proceedings, jurisdiction, powers and functions etc

9—Amendment of section 38I—Enforcement, variation or revocation of purported orders

These amendments change references to 'federal diversity jurisdiction' to 'federal jurisdiction'.

Schedule 1—Related amendments

Part 1—Amendment of Housing Improvement Act 2016

1—Amendment of section 40—Special powers to make orders

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 2—Amendment of Residential Parks Act 2007

2—Amendment of section 117—Special powers to make orders

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 3—Amendment of Residential Tenancies Act 1995

3—Amendment of section 108B—Procedure

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

Part 4—Amendment of Retirement Villages Act 2016

4—Amendment of section 46—Application to Tribunal

This amendment clarifies the meaning of a member of the Tribunal who is 'legally qualified'.

The SPEAKER: Deputy leader, are you the lead speaker?

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (17:13): You stole my thunder there, Mr Speaker, but yes. I was going to say that. I am prepared to be and will be. I indicate the opposition's support for the bill. I will speak briefly.

The Deputy Premier has read the government's speech into Hansard, and that tells the story really quite comprehensively. It is perhaps worth bearing in mind that the Attorney introduced this bill into the other place on 16 May last year. It is not controversial. It is making further changes in relation to the federal diversity jurisdiction, as it is known, to broaden the capacity of SACAT to refer off matters to the Magistrates Court. That is all well understood. I think it was act No. 5 of 2018, fairly early on in the Marshall Liberal government period, that the act was amended to insert part 3A to provide for that response initially to Burns v Corbett.

As the Deputy Premier has indicated, there has been some expansion of the jurisdiction of SACAT in the time since, and I think the other thing the government has adverted to in that regard is that there has been some now uniformity across the country in relation to the referring capacity to hear matters outside the jurisdiction of tribunals across the country for the same reason.

Those matters are in addition to the changes in clause 3 of the bill that would make the redefinition of a legally qualified member of the tribunal and other members of the tribunal holding relevant qualifications. Those are sensible changes and I will not stay to deal with the balance. I just indicate that there are perhaps one or two discrete questions in committee, for the benefit of the record, but otherwise I commend the bill to the house.

S.E. ANDREWS (Gibson) (17:16): I rise to indicate my support for the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024, a bill that makes sensible reforms to the South Australian Civil and Administrative Tribunal Act 2013 (the act) to improve the operation of SACAT.

This bill makes two substantive changes to the act. Firstly, the bill amends part 3A of the act which currently provides for SACAT to transfer matters to the Magistrates Court where SACAT is barred from dealing with that federal matter under the Australian constitution. Secondly, the bill will address concerns raised by SACAT that the strict definition of 'legally qualified member' for the purposes of determining which SACAT members are allowed to make certain types of decisions or orders in SACAT unduly restricts the pool of members able to hear any particular matter, with resulting inefficiency for SACAT and all parties involved.

The act was amended in 2018 due to the constitutional implication recognised in the High Court in the case of Burns v Corbett that prevents a state tribunal that is not a court of a state exercising judicial power with respect to any matter of the kind described in sections 75 and 76 of the Australian constitution. The Burns v Corbett limitation will only apply when a state tribunal is exercising a judicial power. The SACAT, like most civil and administrative tribunals in Australia, exercises a mix of both administrative and judicial powers. An example that affects many residents in my electorate is SACAT's residential tenancies jurisdiction to resolve legal disputes between lessors and lessees under residential tenancy agreements.

The present issue arises because, in reacting to the Burns v Corbett decision, the scope of part 3A was limited to the types of matter that may fall under subsection 75(iii) where the commonwealth is a party, or subsection 75(iv) for residents of different states of the constitution. At the time, these were the only situations in which it was considered that the Burns v Corbett limitation would arise in practice in SACAT.

However, since part 3A was inserted into the SACAT Act, SACAT's jurisdiction has been expanded to include a broader range of matters. It also appears that several other jurisdictions have amended their equivalent civil and administrative tribunal legislation to provide for transfer to a court by the equivalent tribunal of federal matters generally—that is, any matter of a kind described in sections 75 and 76 of the constitution. Out of an abundance of caution, the bill will amend part 3A consistent with those interstate interpretations.

Onto the second substantive change to the act that the bill makes—

The SPEAKER: The deputy leader has a point of order.

Mr TEAGUE: I am loath to interrupt the member for Gibson. It is a point of order under standing order 128 that goes to repetition. I am listening. The member on this occasion—and it is not for the first time, and I mean no particular reflection on the member—is rehearsing the government speech, which I have word for word in front of me and I have just heard the Deputy Premier rehearse the government speech, which is appropriate for the purposes of this place, but not to hear twice verbatim. I bring that to your attention, sir. We can press on with the debate.

The SPEAKER: Thank you, deputy leader, I will listen out for it. I think we might have seen a bit of this over the years on both sides where people make speeches that reflect what has been written by the minister and the government to convey their feelings towards their support or otherwise of a piece of legislation.

S.E. ANDREWS: I am pleased to seek advice from the minister with regard to such a technical change to the act and so continue that currently the definition of 'legally qualified member' for the purposes of the SACAT Act and other legislation reserves the making of certain SACAT decisions and orders for legally qualified members of SACAT to mean a SACAT member with an Australian law degree plus at least five years relevant experience in a law-related field, who is designated by the SACAT president as a legally qualified member for the purposes of the SACAT Act.

I am pleased to endorse this bill which makes technical changes to the act to ensure that SACAT can continue to provide efficient, high-quality and low-cost dispute resolution for so many South Australians. I commend this important bill to the house.

Mr BROWN (Florey) (17:21): I will try to give a contribution on this bill that does not offend the member for Heysen.

Mr Teague: It is the standing orders that are being offended, not me.

Mr BROWN: I know you are an expert on the standing orders. You used to be in that chair but I do not know what happened to you. You got turfed out.

The SPEAKER: Member for Florey, please address the subject matter or we will pass on to someone else to have a chat.

Mr BROWN: Thank you, sir, and thank you for your advice too. I rise in support of the South Australian Civil and Administrative Tribunal (Miscellaneous) Amendment Bill 2024, which seeks to make two sensible changes to the South Australian Civil and Administrative Tribunal Act 2013, usually known as the SACAT Act.

The first proposed change is to broaden the scope of part 3A of the act, which provides for the South Australian Civil and Administrative Tribunal (SACAT) to transfer federal matters to the Magistrates Court to be dealt with where SACAT is barred from dealing with that matter under the Australian constitution. The proposal is that part 3A will encompass all federal matters under the constitution rather than being limited, as is the case currently, to federal diversity jurisdiction.

The second proposed change is to amend the definition of 'legally qualified member' for the purposes of the SACAT Act and also for other legislation that reserves the making of certain SACAT decisions and orders for legally qualified members of SACAT. This element of the bill aims to address concerns raised by SACAT that for the purposes of determining which SACAT members are allowed to make certain types of decisions or orders within SACAT the strict definition of 'legally qualified member' creates undue restrictions as to which members are able to hear a particular matter. This, in turn, leads to inefficiencies that may have an impact on all parties involved in SACAT matters.

I will take the opportunity to go into brief detail in relation to the two elements of this bill. Firstly, the High Court of Australia ruled in the case of Burns v Corbett HCA 15 in 2018 that a state tribunal is not a court of a state under section 77 of the Commonwealth Constitution. A state tribunal is therefore unable to exercise judicial power with respect to matters in which there are applicants or respondents who are residents of other states or territories.

It is the case that most civil and administrative tribunals in Australia exercise a mix of both administrative and judicial powers, and this is true for SACAT. While the majority of matters dealt with by SACAT are typically administrative in nature, one example of SACAT exercising a judicial power might be a circumstance in which SACAT uses its residential tenancies jurisdiction to resolve legal disputes between landlords and tenants under residential tenancy agreements.

Where disputes arise in relation to residential tenancy agreements between landlords who are interstate and tenants who are in South Australia, the consequent inability for SACAT to deal with such disputes has created significant impediments. The SACAT Act was amended in 2018 to insert a new part 3A for diversity proceedings, which refers to cases involving parties from different states under federal law.

Under part 3A, in the event that SACAT considers that it may lack jurisdiction to deal with the particular application that has been made because it involves federal diversity jurisdiction, it can elect to transfer the matter to the Magistrates Court, which is correspondingly empowered to deal with the matter in the same way and with the same powers as SACAT would have if it were able to deal with the matter. In practice, it is the case that such matters are dealt with on SACAT premises by a SACAT member who is also serving as a magistrate, or a judicial registrar sitting as the Magistrates Court.

The issue this reform seeks to address arises because in reacting to the Burns v Corbett decision, the scope of part 3A was limited to the types of matters that may fall under subsections 75(3) and 75(4) of the constitution, those being matters to which the commonwealth is a party and matters involving residents of different states respectively. Previously, these have been the only situations in which it was considered that the Burns v Corbett limitation would arise in practice in SACAT.

However, since part 3A was inserted into the SACAT Act, SACAT's jurisdiction has been expanded to cover a broad range of matters. It is also apparent that several other jurisdictions have amended their equivalent legislation in relation to civil and administrative tribunals to provide for transfer to a court by their equivalent tribunal of any matter of a kind described in sections 75 and 76 of the constitution, which is to say matters that are considered federal matters. The proposed amendment will give SACAT the power to deal with more types of cases, which will enable it to provide more efficient services.

The bill further seeks to amend part 3A consistent with approaches that have been taken interstate changing the definition of 'legally qualified member' for the purposes of the SACAT Act (and other legislation that reserves the making of certain SACAT decisions and orders for legally qualified members of SACAT) to mean a SACAT member with an Australian law degree plus at least five years' relevant experience in a law related field who is designated by the SACAT president as a legally qualified member for the purposes of the SACAT Act.

Members will be aware that SACAT has a president, deputy presidents, magistrates, senior and ordinary members and assessors who can sit alone to hear matters or who can sit as a panel to hear matters. Legal practitioners of a certain standing are eligible for appointments as members as are persons who are not legal practitioners but are subject matter experts with requisite experience and qualifications in disciplines including social work, accountancy, economics, child development and medicine. These members currently preside over some SACAT matters and write decisions. The Attorney-General in the other place cited the example of a SACAT member with qualifications and expertise in social work being nominated to sit on SACAT's guardianship and administration and mental health lists.

The SACAT Act as well as various acts that confer jurisdiction and functions on SACAT reserve certain types of SACAT decisions and orders only to a legally qualified member of SACAT. The SACAT Act currently defines 'legally qualified member' for that purpose as a presidential member, a magistrate member or another member of the tribunal who is a legal practitioner of at least five years' standing. In practice, it is the case that SACAT has multiple members who are legally qualified in the sense of having a law degree, plus extensive relevant experience, for example as a legal academic or as a member of another tribunal. Due to not having five years' legal practice experience, however, these members have been appointed to SACAT under the extensive knowledge, expertise or experience a limb of the eligibility criteria for appointment.

The fact that SACAT is compelled under current arrangements to list certain matters before a legally qualified member under its strict definition can lead to delays in the progress of matters due to a narrower pool of members being eligible to deal with hearings. Importantly, this can include urgent hearings; for example, those that are often required under the Guardianship and Administration Act 1993.

Under section 23 of the SACAT Act, the president of SACAT determines which member or members are to constitute SACAT for a particular matter or matters, subject to the SACAT Act or another act providing otherwise. The president would need to be satisfied that a member has the requisite independence to hear matters of the relevant type and possesses the legal skills to deal with matters of the relevant complexity.

The SACAT president is required to be a Supreme Court or District Court judge. These reforms reflect that such a person should be relied upon to constitute SACAT appropriately for various types of matters from the pool of members appointed under the eligibility criteria set out in the SACAT Act, including to guard against increased applications for internal review or appeal of SACAT decisions. The bill therefore proposes to broaden the definition of a legally qualified member for the purposes of the SACAT Act to include SACAT members who possess appropriate legal qualifications and law-related experience, despite the fact that they may not have achieved five years of practice as a legal practitioner but who are designated by the SACAT president as a legally qualified member for the purposes of those reserved decisions and orders.

The bill was consulted on with the courts, SACAT, the Law Society and other interested parties and broadly supported, apart from some concerns expressed by the Law Society and the Aboriginal Legal Rights Movement about the legally qualified member amendments, specifically in relation to the dilution of the practice requirement. The fact that the president of SACAT being a judge who is responsible for designating members, did go some way to alleviating these concerns.

In progressing these reforms we aim to strengthen SACAT's ability to provide high quality and cost-effective dispute resolution services to our community in as efficient a manner as can be achieved.

I would like to thank all members for the indulgence that they have shown me so far during my speech, but I do seek leave to continue my remarks.

Leave granted; debate adjourned.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT